The essence of trade unionism is social uplift. The labour movement has been the haven for the dispossessed, the despised, the neglected, the downtrodden, the poor.
A. Philip Randolph
Trade Unionism is a dynamic concept, which has been continuously debated upon all around the globe. The idea of Trade Unionism is based on the cardinal principles of Welfare Society, wherein each and every section has a room for the development from every front, right from the economic to the social front. In India, prior to Independence, before the second world war there was massive shift of the demographic elements from the self-employment to the industrial-employment and working as the worker for other people in their industry. This had some mixed effects, where the employer in some cases deployed such harsh measures and unethical practices from the perspective of common human understanding, it became extremely difficult and an ordeal for the worker to work in that environment. This was in the form of unequal bargaining power, untimely wages, no grievance redressal, no room for collective bargaining, no health benefits, to name a few. All these issues, led to a massive awakening of the conscience, of the working class, with an urge for recognition, acknowledgement of their rights, settlement of disputes, collective bargaining brought the Trade Union Act, 1926.
The paper is a heterogenous attempt in analyzing the status of the Trade Unions in India, within the paradigms of labour law legislation, identifying the changes and its Constitutional perspective. The paper makes an attempt to strike at the raw problems of the Trade Unions which poses as an obstacle to their objective and to what extent the new labour code is beneficial for the concerned class.
TRADE UNION: INTRODUCTION
History of Trade Union:
The aroma of trade unionism can be traced back to the spirit of expansion in the industrial society in Britain, back in the 18th Century and its cumulative presence along with the idea of Collective Bargaining was evident in the Ordinance of Labourers enacted in UK in the middle of 14th Century. In the late 1880’s the trade unionism underwent unprecedented transformation in Britain which provisionally continued till 1920’s which gave a contemporary and probable present-day picture of this dynamic idea to the world. These gave a huge uplift to the idea of eradicating the disparity within the movement of miners and transport workers moving their stature from ‘general’ to ‘industrial’.
It is to be noted that the first venture at establishing National General Union was made in 1820s and 1830s. Some of the following are listed below, namely,
i. National Association for Protection of the Labour (1830) by John Doherty
ii. Grand National Consolidated Trade Union (1834) by Robert Owen
iii. London Trades Council (1860)
These were some temporary foundations or some firm steps in this direction, which eventually lead to the formation of a permanent and a long-lived trade union, called Trade Union Congress in 1868. The renowned political thinker, John Stuart Mill in his book Principles of Political Economy (1871) elucidated that, “ If it were possible for the working classes, by combining among themselves, to raise or keep up the general rate of wages, it needs hardly be said that this would be a thing not to be punished, but to be welcomed and rejoiced at. Unfortunately the effect is quite beyond attainment by such means. The multitudes who compose the working class are too numerous and too widely scattered to combine at all, much more to combine effectually. If they could do so, they might doubtless succeed in diminishing the hours of labour, and obtaining the same wages for less work. They would also have a limited power of obtaining, by combination, an increase of general wages at the expense of profits.”
Finally, in 1872 Britishers legalised the status of trade unions for the benefit of employees and employers. This period also provided a spark for the development of trade unions in various countries including France and USA.
SIGNIFICANCE OF TRADE UNIONS:
There are three keywords associated with this dynamic idea, namely identity, ideology and strategy. The facets of identity linked through Unionism is that, identity relates dialectically to the interconnecting dynamics of interests, democracy, agenda and power in a nutshell the ‘very nature’ of the union. The purpose of the union is to pursue objectives that reflect its identity, with the help of these strategies.
The objectives of the Trade Union can be broadly economic and non-economic in nature, right from the concerns of the wages to the idea of rationalizing their welfare policies.
Some of which are as follows,
i. To monitor the terms and conditions of the employment (Wages, Standard of Living, Leaves)
ii. To maintain the aroma of the working condition of the workstation favorable for both the parties.
iii. To make a room for genuine negotiation between the employee and the employer.
iv. To keep a check on the welfare policies for the workers.
v. To maintain industrial peace for the betterment of the Organizational health.
POSITION IN INDIA:
On analyzing the given data, we can definitely say that, in India the Trade Union has attained the status of a fundamental and powerful institution, which needs a desired direction for its optimum utilization.
The probable reasons for setback suffered by such institutions can be numerous, some of which are as follows,
i. Trade Unions have not considerably worked in the direction of creating a model brigade of young workers in various organizations.
ii. The idea of Collective Bargaining has not attained the ample momentum.
iii. The strikes ended without drawing optimum benefit and were short-lived.
iv. The unitary aspect of Trade Union- mostly prominent in the business lines.
Therefore, it is good to observe the gradual increment in the number of the registration of the trade unions in India, but the ground level uncertainties, need to be tackled with some dynamic functionary coupled with public faith to bring this dynamic idea into a full-fledged action plan.
TRADE UNION AND LABOUR LEGISLATION
In India, the organized labour confederations comprise of four major conglomerates, namely,
a. Indian National Trade Union Congress
b. Hind Mazdoor Sabha
c. All India Trade Union Congress
d. United Trade Union Congress
The labour movement gained the full momentum in India between 1947 and 1949 in the heady atmosphere of political independence, each political group tried to capture the allegiance of industrial proletariat.
The dynamics of Collective Bargaining in the Industrial Relations in India has to studied under there strands namely,
a. Which favours collective bargaining and pure and simple trade unionism, is primarily a British concept.
b. Which favours collective bargaining without necessarily rejecting conciliatory and persuasive government intervention, stems directly from the basic faith of Indians in the reasonableness of men in the ultimate power of the ‘Right Cause’.
c. The objective complexity of the issues, delights in macroeconomics and concludes that India cannot afford to let the forces of the market operate freely
HURDLES FACED BY INDIAN TRADE UNIONS
There are two facets of the challenges associated with the functionality of the Trade Unions in India, categorized as Internal and External Challenges respectively.
NEED FOR THE TRADE UNION:
Trade Unions are major industrial component in the modern industrial relations which are now considered as a sub-system which seeks to serve the specific sub-groups interest and also considered itself as a part of the organization in terms of its viability and contribution to the growth of the community of which it is a part. The motive for formulation of this dynamic idea is to achieve such objectives which are not possible in personal capacity and includes,
To ensure job security
To ensure right payment of wages
To ensure redressal of grievances
To maintain a good working environment and promote welfare
To promote industrial peace and take up Collective Bargaining.
LABOUR LAW LEGISLATION ON TRADE UNIONS IN INDIA:
In Central Inland Water Transport Corporation v Brojo Nath, the Hon’ble Supreme Court elucidated that,
“Trade Union play a central role through Collective Bargaining in the unequal relationship, where the workers are at constant risk of unemployment when employers are large corporation.”
The Industrial Relation Code, 2019 replaced the Trade Union Act, 1926 with an objective to attain the industrial peace and security and the promote the spirit of harmony in dissolving the industrial dispute and to promote the cordial relationship between the employees and employers.
THE OLD VS. NEW- CHANGES
The Code has changed the definition of a worker, widened the scope of Industrial Dispute and defined the term strike as a casual leave, if 50% or more workers do not work on a particular day.
Since labour laws fall under the concurrent list both the centre and the state have the right to draft laws on the matter. Several states like Uttar Pradesh and Gujarat have already diluted their laws during the ongoing crisis of the Covid-19 Pandemic.
Initially the archaic laws were said favour to labours, since the provision regarding permission of government for termination, retrenchment and lay-offs in an organisation with 100 or more workers and also because of the red tapism involved in the process of shutting businesses. Till now 14 states have already done increased the threshold to 300 workers or more, and now with the permission the Act has made this threshold universal in nature.
The provisions about the negotiating union which is, a union with more than 51% of workers as members, will be the sole negotiating union while in cases no union has this number, a council will be formed including 20% members of all the unions present.
The act, introduces Fixed term contracts (FTC), whereby a person earning up to 18000 Rupees, is not labour but an FTC employee, considered as the same as a permanent employee. Based on a contract, the worker is employed for a fixed tenure, he is entitled to the benefits that are given to a permanent employee who is performing the same task, he is eligible for statutory benefits as are available to any permanent worker, lastly, he is eligible for gratuity if the tenure is for a period of one year.
The number of reasons for cancellation of registration of an existing union have been increased from three to five, the members who could join the union’s office-bearers team, and were not a part of the industry is reduced to two officers.
TRADE UNION AND CONSTITUTION OF INDIA
The dynamicity of the Trade Unions can be assessed through its interlink within the Constitutional Realm of India. The Trade Unionism will be categorically analyzed under the two heads basically,
The Fundamental Right
The Directive Principle of the State Policy
This will provide us the exact position of Trade Unions in India, because these two heads provide the dual coverage of the idea, one from the people involved in the Union and other, the view of the state towards it.
THE FUNDAMENTAL RIGHT
The Legislative Assembly Debate’s official report, discusses about the urgency of trade unions in India, in the year 1921. The cardinal points stated and upvoted were following,
i. Conditions of work
ii. Joint Demand vis-à-vis Collective Bargaining
iv. Proper use and allocation of Funds
v. Dispute Resolution
This is important to note, ‘Conditions of Work’, encapsulates the idea of just and humane conditions of work, which includes right to minimum wages, leaves, livelihood etc. The Article 21 of the Indian Constitution provides us with these diverse coverages and includes the right to Minimum Wages , the right to livelihood, the right to shelter, the health of labour under the ambit of quality of life enshrined under the Indian Constitution.
Furthermore, it is important to analyze the position from the perspective of Article 19(1)(c), which deals with the right to freedom to form associations. The SC has, not countenanced this extended dimension sought to be given to Article 19(1)(c). The Court has ruled that the right guaranteed by Article 19(1)(c) doesn’t carry with it a concomitant right that unions formed for protecting the interests of labour shall achieve their object such that any interference to such achievement by law would be unconstitutional unless it would be justified under article 19(4) as being in the interest of the public order or morality. The right under Article 19(1)(c) extends only till the formation of an association or union and insofar as the activities of the association or union are concerned, or as regards the steps, which the union might take to achieve its object, they are subject to the laws as may be framed and such laws cannot be tested under Article 19(4). The court has held that even a very liberal interpretation of Article 19(1)(c) cannot mean that the trade unions guaranteed right to strike. The right to strike can be controlled by appropriate industrial legislation.
THE DIRECTIVE PRINCIPLES OF STATE POLICY
Directive principles of state policy, under Part IV of the constitution, though not enforceable in the court of law, provide the roadmap to the governments to take necessary steps to upliftment of workers and also eradicating any such violence that occurs due to unjust labour practices. DPSP includes right to social justice (Article 38(1)), living wage and proper working conditions for worker (Article 43), maintain heath (Article 47), maternity benefits (Article 42).
The IR code which replaces some of the very core Labour Laws, seem to have taken a few steps back in the process of reform. It is a big irony that the government has given very counter-intuitive reasons such as reduction of labour protection for the benefit of labours. This exposes the lack of knowledge and understanding about the evolution of labour laws and practices which are have been achieved by the efforts of these Trade Unions over the years. It offers flexibility to employers, it may impact the number of permanent jobs in such establishments, thereby increasing contractualisation in the workforce.
Currently, employers in industrial establishments such as mines or plantations with at least 100 workers are required to take prior permission of the central or state government for lay-offs, retrenchment or closure. The central government had planned to increase the limit to 300 workers, but protests by trade unions and activists prevented this change, opposing it as “unilateral and anti-worker”. The bill allows safeguards that the state governments of Gujarat, Jharkhand, Uttar Pradesh, Haryana, Andhra Pradesh, Maharashtra and Assam utilised–they have amended state laws to set the threshold higher.
The bill also introduces a negotiating union (or sole bargaining agent) of workers to resolve disputes. If the company has only one union, that one becomes the negotiating union or sole bargaining agent. If an organisation has more than one trade union, the union with the support of 75% of the workers on the rolls of the establishment would be designated as the sole negotiating union. If there is no trade union with such support, the government or an authorised officer could institute a negotiating council.
This code does not have a provision noting that existing permanent worker vacancies cannot be converted into fixed-term. This means that theoretically, a company could hire only contract workers. Contract work should be slowly regularised, but the government has introduced fixed-term employment which is negating the law for contract labour regularisation. Globally, workers with fixed-term contracts had a significantly higher rate of transition into unemployment or into inactivity as compared to regular workers, suggesting less stability in work or income for workers on fixed-term contracts, according to a March 2015 International Labour Organization (ILO) policy brief.
This furthers the ease of doing business but not worker’s welfare and interest. The 75% threshold is unrealistic, and must be revised downwards to half or, at most, two-thirds. “Hardly a handful unions in India or anywhere in the world would be able to satisfy such a high threshold. The overall objective of the Act seems more focused on ease of doing business and not on the welfare of the labours.
The lawmakers have tried to facilitate employment while protecting the workers’ rights, which has turned into a hasty affair, while trying to solve the various problems they have provided an inadequate manner (union recognition) and given a false sense of status quo by giving state governments the power to execute the reforms on the pretext or universalization of the same.
Now the battle seems to hard and long for the Trade Unions, the industry heads have got the icing on the cake without even asking for it. The present government has brought itself in a tight corner, by pulling all these acts all at once, in a pandemic situation with lock downs, farm law protest and an overeager opposition, breathing down its neck. What remains to be seen is how they will pull themselves out of this muddle.
The focus of the code should be on the idea of recognizing the Trade Unions in every establishment, irrespective of the numerical strength and protocols.
The position of permanent employees and contractual workers must be analyzed pragmatically to reduce the rate of transition into the unemployment.
The nature of the dispute resolution must shift from the latent idea of unilateralism to bilateralism. This has to be a two-way process, which has to remain constant throughout irrespective of the numerical strength protocols. (In Negotiation)
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Family court with territorial jurisdiction is the competent authority to give a child in adoption: Kerala HC
Without leaving any room for even an iota of doubt, the Kerala High Court has in a learned, laudable, landmark and laudable judgment titled Thomas P & Anr. V. State of Kerala & Ors in CRL. A. No. 971 of 2019 which was delivered on November 5, 2021 has laid down explicitly that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. The Court noted that as per law, the appellants were eligible to adopt the child. Moreover, it must be mentioned that presently the Family Courts are designated as Adoption Court as per O.M. No. D12-10890/2016 of the High Court of Kerala. As such, the decision of the District Judge was set aside and the appeal was allowed. The District Court was also directed to return the records for presentation before the proper court.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice M.R. Anitha of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Crl.A has been filed against the order in O.P. (Adoption). No. 75/2016 dated 15.03.2016 of District Court, Kollam. According to the learned counsel for the appellant, respondents 2 and 3 are husband and wife. The 2nd respondent is the brother of the 2nd appellant and 3rd respondent is the wife of the 2nd respondent. The respondents 2 and 3 are the biological parents of Kumari, Maria Johnson aged 8 years old, who is the 4 th girl child of the said couple. The appellants are childless couple; both of them had undergone treatment for infertility for a long period. Doctors confirmed that it will not be possible for the appellants to become biological parent of a child. The 2nd appellant had to undergo uterus removal surgery. Hence, at present there is no chance for the 2nd appellant getting conceived. Kumari. Maria Johnson is the 4th girl child of the respondents 2 and 3. While so, the respondents 2 and 3 expressed their willingness to give in adoption of Kumari. Maria Johnson to the appellants. Hence, with a view to legalize the entire proceedings, O.P.(Adoption) No. 75/2016 has been filed by the appellants before the District Judge, Kollam. By the impugned order, the learned District Judge dismissed their O.P., finding that the court has no jurisdiction to entertain or adjudicate the issue of adoption mooted by the appellants and aggrieved by the same appellants approach this Court.”
As we see, the Bench then observes in para 3 that, “Heard both sides. Section 2(2) of the Juvenile Justice (Care and Protection of Children) , 2015 reads as follows: “‘adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”
Furthermore, the Bench then mentions in para 4 that, “Section 2(23) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows: “Court’ means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.”
What’s more, the Bench then added in para 5 that, “Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:
“ ‘relative’, in relation to a child for the purpose of adoption under this Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent.””
Going ahead, the Bench then points out in para 6 that, “According to the learned counsel for the appellants, being the brother’s child of the 2nd appellant, the child supposed to be adopted will come within the definition of ‘relative’ defined under Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 56(2) is also relevant which reads as follows:
“Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.””
Moving on, the Bench then also stated in para 7 that, “Next the learned counsel drew my attention to Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the Act) which deals with the appeals and reads thus:
“Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)”.”
To put things in perspective, the Bench then states in para 8 that, “So this is the proper forum for entertaining an appeal against the impugned order. The learned counsel drew my attention to the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2014 ( In short the rules). Rule 40(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 reads as follows:
“For all matters relating to adoption, these rules and guidelines issued from time to time by the State Government and notified by the State Government shall apply. In the absence of such rules the guidelines issued by the Central Adoption Resource Agency and notified by the Central Government under subsection (3) of Section 41 of the Act shall apply.””
As it turned out, the Bench then lays bare in para 9 that, “Rule 41(C) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 deals with the procedure for adoption reads as follows:
“The specialised Adoption Agency along with the prospective adoptive parent(s) shall file a petition in the Court having jurisdiction for obtaining the necessary adoption orders under the Act and these Rules within ten days from the acceptance of referral by prospective adoptive parent(s) and shall take necessary steps to get the process of legal adoption completed at the earliest.””
In addition, the Bench then points out in para 10 that, “The learned counsel also drew my attention to the Adoption Regulations, 2017. Regulation 4 of Adoption Regulations, 2017 deals with child eligible for adoption reads as follows:
The following shall be eligible for adoption, namely:-
“(a) any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
(b) A child of a relative defined under sub-section (52) of Section 2 of the Act;
(c) child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.””
Not stopping here, the Bench then notes in para 11 that, “Regulation 5(7) of Adoption Regulations, 2017 reads as follows:
“ The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.””
Interestingly enough, the Bench then further noted in para 12 that, “The learned counsel further drew my attention to Regulation 55 Adoption Regulations, 2017 reads as follows:
“Legal procedure:- 1)The prospective adoptive parents, who intend to adopt the child of a relative as defined in sub-section (52) of Section 2 of the Act, shall file an application in the competent Court under sub-section 2 of Section 56 of subsection (1) of Section 60 of the Act in case of in-country relative adoption or inter-country relative adoption, respectively, alongwith a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI.
Women in live-in relationships and the matter of stealthing: A hidden issue
With the changing lifestyle and westernisation of people’s ideology, the practice of non-formal relationships by “Live-in Relationship” has emerged. With time, the concept of companionship has evolved, and it is no more limited to the usual way of a Marriage. This new expression of a live-in implies two individuals having a consensus to cohabit under the same roof to check their compatibility before the actual marriage ceremony. Sometimes termed as a walk-in walk-out relationship, this kind of union is entirely legal, although it has never been recognised in any Acts or other legislation across India. Judiciary has undoubtedly, in the process, played a significant role to normalise this practice by delivering certain revolutionary judgments.
THE LEGITIMACY OF LIVE-IN RELATIONSHIP: A CONFLICT BETWEEN MORAL PREACHING AND LEGAL PRINCIPLES
Recent judgments delivered by the Punjab and Haryana High court have proven that courts should be concerned with constitutional morality and not with what is considered moral in the eyes of society. In the series of events, the two benches of the high court had formerly denied protection to a couple who demanded security from their family members, quoting those live-in relationships are illegal in the country and is looked down on by society. Later on, the other bench took cognisance of the case and held that the couple shall be protected at all costs and that an individual’s liberty cannot be merely taken away on the grounds of being immoral.
The term constitutional morality was duly interpreted in the case of Manoj Narula v. Union of India, and it was found that to examine the constitutional character of any subject, it is to be assured that it aligns with the constitutional principles and does not become an act of arbitrariness by going against the set rules. The working of the Indian Constitution has been structured so that its principles match the needs of a progressive society. Its evolution is directly proportional to the conditions and culture prevailing in the community.
In its other leading judgment of Indra Sarma v. V.K.V. Sarma, the Supreme Court, via a liberal approach, opined that Live-in is a novel approach of the current generation to get into the nitty-gritty of a household without actually being bothered by an official tag of marriage. It is neither a sin nor a crime in the eyes of the law and shall be welcomed with open arms.
LIVE-IN RELATIONSHIPS: ABSENCE OF STATUSES AND ROLE OF COURTS AS GUARDIAN
The absence of a statutory enactment makes the practice swinging in uncertainty. There is neither any legal definition of the relationship nor any prescribed punishments for the wrongdoers. However, the court has tried to provide an identity to it by defining it in five different ways while delivering the judgment of Indra Sarma v. V.K.V. Sarma. The live-in relationship is where two individuals’ privacy needs to be protected. It does not matter how society pursues them to be about the privacy judgment held in K.S. Puttaswamy v. Union of India it is to be quoted that it is the decision of the individuals how they want to spend their lives as. It is not just providing them with the right to freedom to choose but the state’s duty to protect their very choice. It is necessary to ensure that the individual enjoys liberty with the utmost dignity and opt for whatever they deem suitable for a happy life.
The Supreme Court put forward certain conditions to certify a cohabitation as a “legal live-in relationship”. In the 2010 judgment of D. Velusamy and D. Patchaimal, the court specified the couple must adhere to the following points while establishing a legal live-in relationship. These were:
Both the boy and the girl have to present themselves as akin to being a husband and a wife.
They both must be legally eligible for marriage and should have attained the age of 18.
They must be eligible to get into a legal marriage and be unmarried.
Both have a consensus of mind for cohabitation without any pressure and have lived like a husband-wife for a considerable period.
The apex court acknowledging the menace of khap-panchayats and honour killings across the country strongly opined that it is highly crucial to ensure that the right to choose a partner is protected at all costs. It is a combined duty of the state and the judiciary to look after the rights of those young couples who usually run away to save their lives from brutal attacks.
DEALING WITH THE ISSUE OF WOMEN IN THE LIVE-IN RELATIONSHIP: AN ANALYSIS
The Protection of Women from Domestic Violence Act of 2005 (Pwdva) is the first piece of legislation to recognise live-in relationships by providing rights and protection to women who are not legally married but have chosen to live with a male partner in a relationship that is similar to but not identical to marriage. Section 2(f) of the Domestic Violence Act, 2005 defines: “Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family”. The court has interpreted the expression “relationships like marriage” on the same line and meaning with the live-in-relationships. The provisions of Pwdva will apply to all the individuals who are in live-in-relationships. “This provides women with fundamental rights to protect themselves from abuse, fraudulent marriage, and bigamous relationships”. Section 125 CrPC is one crucial legislation that was inducted to avoid vagrancy and destitution for a wife/minor children/old age parents, which has now been given to partners of a live-in-relationship after judicial interpretation. “Malimath Committee, also known as the Committee on Criminal Justice System Reforms, was founded in November 2000. The committee presented its report later in 2003, with some notable recommendations under the heading “offences against women.” One such bid was to amend Section 125 of CrPC to alter the meaning of wife, and the revision was made accordingly. The expression includes the ladies in the live-in-relationship, but the accomplice has abducted her at his own will, so now a lady in the live-in-relationship can get the wife’s status. It interprets that if a female has been in the live-in-relationship for a considerable period, she should have legitimate privileges as a spouse and claim maintenance under this section. A presumption would arise in wedlock where partners live together as husband and wife. However, a contradictory decision came when it was decided that the divorced wife could be treated as the wife and claim maintenance under Section 125 of CrPC. Still, it won’t apply to those staying in live-in-relationships because they are not legally married, and partners cannot divorce each other and claim maintenance under this section.”
STEALTHING: AN UNIDENTIFIED CRIME HIDDEN BEHIND THE MISINTERPRETED MEANING OF CONSENT AND IMPACT OF THIS IN A LIVE-IN RELATIONSHIP
Stealthing refers to the act of secretly removing a condom while having sexual intercourse with a partner who has consented to the protected sex. This is a deceptive form of sexual assault that grossly violates the sense of consent and exposes the partner to unwanted pregnancies, sexually transmitted diseases, etc. The non-consensual removal of condoms has been identified as a form of sexual assault by various western jurisdictions; for instance, “The Supreme Court of Canada and the Swiss Criminal Courts have identified stealthing as rape (R v. Hutchinson, 2011). Further, this issue acquired international attention when UK’s Supreme Court stated that stealthing fell under the ambit of rape and accordingly introduced the “doctrine of conditional consent” (Assange v. Swedish Prosecution Authority, 2011).” It is still a grey area between the white and black definitions of consent in India. It is an important issue that needs to be discussed because of India’s social conditioning and stigma attached to contraceptives. The National Health Survey of India 4 (NHS4) found that 80% of adult men aged between 20 to 24 years do not use contraception while having sexual intercourse; this might emerge from the notion that the use of condoms makes ‘one less of man’. The idea of ‘conditional consent’ has been identified under Section 375 (4) of the Indian Penal Code, which stipulates, “When the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is, or believes herself to be lawfully married, such sexual intercourse shall amount to rape.” This scenario explains that a woman’s consent is conditional on the man’s being her husband. When this factor is eliminated, the consent is effectively hampered, which the statute identifies as rape. Suppose the analogy has been drawn to the act of stealing, and the consent is based on the partner using a condom. In that case, the non-consensual removal of the protection during sexual intercourse invalidates the consent, thus amounting to rape. The non-consensual removal of condoms also is further covered under the ambit of Section 270 of the Indian Penal Code, which penalises malicious acts that are likely to cause the spread of deadly diseases. “The above analysis shows that stealing has all the elements of a crime but still has not been recognised as one; the policymakers and researchers have tried to look for the civil rather than criminal mechanisms while dealing with Stealthing. It is pertinent to note that Mrinal Satish, a professor involved in expanding the definition of rape in the Criminal Law Amendment Act, 2013, firmly believes that stealing should be covered within the ambit of rape”. Women in live-in relationships became very easy victims in such scenarios as the legislation for both live-in-relationship and stealing are unclear, leaving the victims unheard. If their issues are addressed in some circumstances, ambiguous legislation leaves the perpetrators free. It is time now that specific legislation concerning the above-stated matter is rolled out, and no room for injustice prevails.
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Worse than expulsion, punishment on constituency: SC
To start with, we saw how just recently the 12 BJP MLAs from Maharashtra had gone to the Supreme Court in protest against their year-long suspension from the State Assembly which definitely appears too harsh a punishment. Without any reservation, the Apex Court expressed an inclination to interfere with the resolution passed on July 5, 2021 by the Maharashtra State Legislative Assembly. We also saw how when the petition in this case titled Ashish Shelar And Ors. Vs The Maharashtra Legislative Assembly And Anr. in W.P.(C) No. 797/2021 and connected cases was called for hearing on January 11, 2021, the Apex Court Bench comprising of Justice AM Khanwilkar, Justice Dinsh Maheshwari and Justice CT Ravikumar after hearing the case in part minced no words to observe that the suspension of 12 BJP MLAs from the Maharashtra Assembly for a full year is “prima facie unconstitutional” and “worse than expulsion” as the constituency is remaining unrepresented.
It cannot be glossed over that the Apex Court has flagged the statutory requirement to not keep a seat vacant for more than 6 months! What Apex Court has said is absolutely valid. The Apex Court also minced no words to say most effectively, elegantly and eloquently that a “constitutional void” and a “hiatus situation” has been created in these constituencies and the “consequences are dreadful”.
To put things in perspective, the Bench also pointed out that, “If there is expulsion, there is a mechanism to fill up the vacancy. The suspension for one year will amount to a punishment on the constituency.” Justice AM Khanwilkar observed in simple, suave and straight language that, “This decision is worse than expulsion. No one can represent these constituencies in the House when they are not there…This is not punishing the member but punishing the constituency as a whole.”
To recapitulate, on July 5, 2021, we witnessed for ourselves how soon after the Assembly met for its two-day monsoon session, there was a lot of commotion and furore as Leader of Opposition and former Chief Minister of Maharashtra – Devendra Fadnavis of BJP objected seriously to an attempt by State Minister Chhagan Bhujbal of NCP to table a resolution demanding that the Centre release data on Other Backward Classes (OBCs) so that seats could be reserved exclusively for them in local bodies in Maharashtra. While protesting we also saw how several BJP MLAs had entered the well in protest, snatched the mace and uprooted mics which led to frayed tempers. We also witnessed how the Shiv Sena MLA Bhaskar Jadhav who was in the Chair presiding the House then adjourned the House for 10 minutes following which some BJP MLAs allegedly entered his chamber and threatened, abused and misbehaved with him which is definitely most outrageous and cannot be ever justified.
In hindsight, it must be mentioned here that the Maharashtra House was devoid of any Speaker in the House stemming from Nana Patole of the Congress party resigning and Shiv Sena MLA Bhaskar Jadhav was one of the four presiding officers that were named by Acting Speaker Narhari Zirwal the previous day. It also deserves mentioning here that Maharashtra Parliamentary Affairs Minister Anil Parab subsequently moved a resolution to suspend 12 BJP MLAs – Bunty Bhangdia, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia – for a year. Naturally, the suspended 12 BJP MLAs then filed a writ petition in the Apex Court in 2021 against the Maharashtra State Assembly and the State of Maharashtra and asked for the suspension to be quashed as they felt that the punishment was too much. The matter has been posted for further hearing on January 18.
To be sure, we need to pay attention here that the Bench made it absolutely clear that as per the relevant rules, the Assembly has no power to suspend a member beyond 60 days. In this regard, the Bench then sought it fit to refer to Article 190(4) of the Constitution which stipulates that a seat will be deemed to have become vacant if a member remains absent in the House without its permission for a period of 60 days. The Bench pointed out clearly that as per Constitutional provisions, a constituency cannot go unrepresented for a period beyond 6 months. It cannot be lost on us that while saying so, the Bench flatly refused to buy the argument of senior and eminent advocate of Apex Court C Aryama Sundaram who appeared for the State of Maharashtra that the court cannot examine the quantum of punishment imposed by a Legislative Assembly.
As it turned out, what followed next was that after the Bench expressed its views, Sundaram then politely sought time to take instructions from the State. The hearing was then accordingly adjourned to January 18. The Bench made it clear that it will not go into other aspects except the quantum of punishment. Justice Khanwilkar told Sundaram that, “…we can say that the decision to suspension can only operate till 6 months and later than that it will be hit by a constitutional bar.”
As we see, the petition of suspended 12 BJP MLAs submitted that their suspension is “grossly arbitrary and disproportionate”. The challenge that they bank upon is denial of the principles of natural justice and violation of laid down procedure as per the law. It is the strong grievance of these MLAs that they were not even given an opportunity to present their case and that their suspension violated their fundamental right to equality before law as enshrined under Article 14 of the Constitution. They have also submitted that contrary to rules, they were not given access to video of the proceedings of the House and it was not clear how they had been identified in the large crowd that had gathered in the chamber. They do have a point!
Furthermore, the MLAs have reckoned that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker and it cannot be put to vote in a resolution as was done glaringly in this case. For esteemed readers exclusive benefit, it must be mentioned here that Rule 53 states that, “The Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly.” The member must “absent himself during the remainder of the day’s meeting.” Should any member be ordered to withdraw for a second time in the same session, the Speaker may direct the member to absent himself “for any period not longer than the remainder of the Session”.
Of course, it cannot be denied that the Bench rightly said that, “The basic structure of the Constitution would be hit if the constituencies of the suspended MLAs remained unrepresented in the Assembly for a full year.” The Bench very rightly referred to Article 190(4) of the Constitution which stipulates that, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”
Be it noted, under Section 151 (A) of the Representation of the People Act, 1951, “a bye election for filling any vacancy..[in the House] shall be held within a period of six months from the date of the occurrence of the vacancy.” This clearly implies that barring exceptions specified under this Section, no constituency can remain without a representative for more than six months. This is why the Apex Court flagged most commendably the statutory obligation to not keep a seat vacant for more than 6 months which no one can ever deny!
It would also be worth noting that Rules 373, 374 and 374A of the Rules of Procedure and Conduct of Business in Lok Sabha stipulate for the withdrawal of a member whose conduct is “grossly disorderly” and suspension of one who abuses the rules of the House or willfully obstructs its business. It is quite noteworthy that the maximum suspension as per these Rules is as stated “for five consecutive sittings or the remainder of the session, whichever is less.” It has to be conceded that the maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less.”
What’s more, the maximum suspension for Raja Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspension as we witnessed of members did not exceed the remainder of the season. This is exactly what the Apex Court took into account also.
In addition, we saw how Mahesh Jethmalani who is an eminent and senior lawyer of the Supreme Court pointed out cogently that recently when the Rajya Sabha suspended 12 MLAs for disorderly behaviour, it operated only for the duration of the session. He argued that the rights of the constituency are also to be protected. Mukul Rohatgi who is the former Attorney General of India and also an eminent and senior Supreme Court lawyer too argued that the principles of natural justice were violated by the House. The petitioner’s lawyers argued that the Court has jurisdiction to examine the correctness of the punishment of the House. Senior advocate Siddharth Bhatnagar raised the argument that the suspension cannot exceed 6 months. He submitted that, “If seats are allowed to be vacant then it has a major effect on the democracy. This is worse than expulsion.” He also added that this can allow the government to manipulate the strength in the House to secure majority votes in crucial issues.
In conclusion, we definitely have to keep our fingers crossed as to what the Apex Court will finally rule when it comes up for hearing on January 18. But it goes without saying that the case of the petitioner is strong. This quite evident from what we see the initial observations of the Judges who are hearing this high profile case. One is sure that the Apex Court will decide the case as per the law and we will soon read what is ruled also in this leading case!
Patentability and copyrightability of blockchain assets in India
Blockchain, Cryptocurrencies, and NFTs will get surrounded in our life in the potential future. The scope of blockchain is increasing day by day. The use of blockchain started with the Finance–Tech industry, i.e., cryptocurrencies. Its use has expanded to include the healthcare industry, real estate, governance, e-commerce and more. With its commercial use, several legal issues have started to come up. These issues include the patentability and copyrightability of blockchain.
Here, two questions arise- what is blockchain and what does patentability and copyrightability entail. Blockchain is a type of distributed ledger technology. At any moment, blockchain keeps a secure and transparent account of all transactions from the beginning to the end in the form of blocks. This article aims to highlight the patentability and copyrightability of blockchain in India and discuss the potential solutions.
BLOCKCHAIN PATENT IN INDIA
Seeing the potential of blockchain technology, various companies have started to file their patent applications. Thereby raising issues of intellectual property rights in each jurisdiction. A patent is a kind of Intellectual Property Right. In India, patent applications must pass three essential criteria- novelty, non-obviousness and industrial application.
Blockchain patents aim to protect a combination of application software and encryption. Therefore, they are linked to software patents. Section 3(k) of the Patent Act 1970 states that “mathematical or business method or a computer programme per se or algorithms are excluded from patentability.” In recent developments, computer programmes have been granted an exclusion from this provision and can be considered a patent if they have a technical effect.
Therefore, two main issues relating to blockchain patents are-
1. Will invention be considered patentable subject matter under Section 3(k) of the Indian Patent Act?
2. How to decide whether blockchain technology developed is novel and non-obvious?
• Issue 1- u/s 3(k) of Indian Patent Act
In “Ericsson v. Intex Technologies, the Delhi High court interpreted the term per se. It stated, “any invention which has a technical contribution or has a technical effect and is not merely a computer program per se” is patentable. This was also upheld in Ferid Allani vs UoI, wherein it was held that “If the invention demonstrates a ‘technical effect’ or a ‘technical contribution’, it is patentable even if it is a computer program. The Court relied on the Computer Related Inventions Guidelines 2013 to define technical effect”. Therefore, for blockchain technology to be considered for a patent application, it must demonstrate a specialised product or technical contribution.
• Issue 2- Novelty and Non-obvious
There are three main essentials for a patent application- novelty, non-obviousness and industrial application. In the introduction, blockchain has vast applications in different industries. The main issues lie with originality and non-obviousness. It is noted that blockchain technology has limited novel features because innovators are merely using existing technology for making transactions. Concerning non-obvious nature, it’s essential to figure out whether a person who is usually skilled in the art can apply the same technique to blockchain technology.
On top of that, few people understand how this technology works. To overcome this, government employees technologically advanced specialists must determine whether the application is novel and has an inventive step. It is essential as granting a patent to a technology that is not novel and is vital would give a monopoly to a company and further reduce the growth of technology.
THE INTERSECTION OF COPYRIGHT AND BLOCKCHAIN
You might be hearing the word NFT accompanied by the news, such as The girl in this viral meme selling her iconic image as an NFT for $1,000,000. So, you might be thinking, what is an NFT and what does the selling of NFT means?
NFT stands for a non-fungible token, a digital token representing art, films, video and other media and is recorded on a blockchain and kept as a link. They are purchased and traded over the internet using cryptocurrency, primarily Ethereum. Artists monetise their digital art, audio, and other digital assets by selling them to anybody in the world using NFTs. NFT has also raised important questions in Intellectual Property Rights- Does selling of NFT confers IP Rights to the buyer? What are the implications of selling NFT by infringing the IP rights of the creator? What are the remedies in case of infringement?
NFT is a form of expression. Therefore it embodies the copyright of the creator in it. “Many people think that owning NFT is the same as owning the copyright to work. However, it is not the case. Copyright always remains with the creator, and only ownership is transferred to the buyer. It is the same as owning a physical copy of an artist’s painting. Here, the artist who painted the picture would be the holder of copyrights in it, and he will be entitled to make duplicates and create other derivatives of it”.
Given how frequently things are copied and distributed online, NFT can be copied and circulated indefinitely. As a result, there’s a reasonable risk that NFT’s copyright will be violated. The Copyright Act of 1957 protects and registers the author’s creative works in India. Copyright can be obtained for original literary, musical, dramatic, and artistic works that last sixty years after the author’s death. “Section 51 of the Act specifies the circumstances under which a copyrighted work is considered infringing. Interlocutory injunctions and damages are available as remedies for infringement. Infringers will face up to three years in jail and a fine of two lakhs if they violate the copyright”.
These remedies are ineffective when persons make money by selling NFTs under false identities. There are currently no stringent laws to prevent copyright infringement in the case of NFTs. It is essential to enact legislation that will aid in assessing the legitimacy of the underlying asset.
Blockchain has gained prominence worldwide with its varied industrial and innovative applications. Legal solutions related to IPR, such as patent and copyright, play a vital role in determining its future. Blockchain and NFT trading present several IP issues, and it is required to develop worldwide norms based on pre-existing IP laws and treaties to prevent a breach. This will eventually defend the creator’s moral and commercial rights.
In addition, blockchain technology would help in the protection of intellectual property. The content owner will register how they want their material to be utilised and disseminated on the database. The decentralised ledger will ensure that the content is delivered in a regulated way. There will be no confusion about where the content came from, who contributed it, who used it, and how it was used, as well as the constraints that came with it, putting a stop to conflicts. Content artists, like authors, might use blockchain’s decentralised, peer-to-peer structure to directly distribute their work to customers, circumventing existing distribution methods and retaining a more significant part of earnings. This might influence everyone from huge media companies to small blogs, allowing artists to connect directly with their audiences.
WHOLE POLICE STATION SHOULD BE MONITORED THROUGH CCTVS INCLUDING INTERROGATION ROOM: P&H HC
In one of the best judgment that I have ever read, it is most heartening to learn that the Punjab and Haryana High Court in a very commendable, cogent, courageous, composed and creditworthy judgment titled Kaushal v State of Haryana and others in CRM-M-43672 of 2021 delivered on January 7, 2022 has directed that CCTVs should be installed in every part of police stations including the interrogation room as per the directions issued by the Apex Court. According to the single Judge Bench comprising of Justice Amol Rattan Singh of Punjab and Haryana High Court, the directives issued by the top court clearly state that no portion of police stations should be left uncovered by CCTVs. The court further stated that our country cannot make the excuse that our interrogations techniques are different than that of western countries and authorities cannot use methods like the third degree as a means of interrogation.
To start with, in this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice Amol Rattan Singh of Punjab and Haryana High Court, the ball is set rolling by first and foremost pointing out that, “Case heard by way of video conferencing. By this petition, the petitioner seeks a direction to respondents no.1 to 3, with a prayer that whenever the petitioner is sought to be taken for interrogation in any case, a videography be done of his leaving the jail premises till his reaching the concerned police station and during interrogation, a videography be also done.”
While continuing in the same vein, the Bench then states that, “It is further prayed that during interrogation his medical examination be also got conducted through a board of doctors or through a civil hospital, so that if any torture ‘is done to him’, then it can be revealed through the said medical examination; with a further prayer made that when he is to be taken outside jail on remand, then either his family members or his lawyer be informed of the location, with his lawyer to be permitted to be present there, where he is being taken and appropriate security be also provided so that he may not be killed in a fake encounter. It is further prayed that respondents no.1 to 3 be directed to comply with the provisions of Section 31 of the Prisons Act, 1894.”
To be sure, the Bench then discloses in the next para that, “A detailed order had been passed by this court on 03.12.2021, directing the DGPs of Punjab and Haryana to file affidavits in response to the observations made in that order, in reply to which both, the DGP, Punjab and the DGP, Haryana, have filed affidavits, both dated 06.01.2022, which are ordered to be taken on record. The affidavit earlier filed by the SSP, Chandigarh, dated 26.10.2021, which is now on the case file, is also ordered to be taken on record.”
While narrating what happens with many of the prisoners, the Bench then points out that, “Before proceeding further, what has been contended by the petitioner in paragraph 22 of the petition is again being reproduced in this order, which is as follows:- 22. That the incidents that are happening with the petitioner inside the jail and during remand are as follows:-
i) The investigating agency spits on the floor and asks the petitioner to lick it and if the petitioner refuses to do so, then he is forcible made to lick the spit of the police officers.
ii) The investigating officers urinates on the face and on the body of the petitioner after removing his clothes.
iii) The petitioner is made to be naked throughout the remand and given merciless beatings.
iv) Sharp objects are inserted in the private parts of the petitioner.
v) The petitioner is given electric shocks behind is ears and on his private parts so that he is tortured badly and even signs of said torture are not openly visible to the ld. Magistrate as well as medical officer.
vi) His legs are put in wooden logs and then pulled aside thereby causing damage to his muscle and rollers are rolled over his thighs so that the petitioner feels the worst kind of pain and still there is no visible mark of injury.
vii) The petitioner legs are tied with a rope and he is hanged with his head down and this is repeated every day while in police remand.””
As anticipated, the Bench then states that, “As regards the allegations of absolute inhuman treatment, as made in the aforesaid paragraph, as expected, the allegations have been completely denied by both the DGPs, with is also stated that no such allegation was ever made earlier by the petitioner and that therefore the petitioner has only made the allegations with mala fide intentions.”
Most significantly, what forms the cornerstone of this notable judgment is then elucidated stating that, “As regards video recording of investigation of the interrogation process, the DGP, Haryana, has stated that there is no such provision in the Cr.P.C. for conducting investigation under surveillance of CCTV cameras. The DGP, Punjab, is conspicuously silent in his affidavit on that aspect. Though, as regards installation of video cameras in all police stations, as pointed out by the learned State counsel, in the affidavit of the DIG (Law & Order), Haryana, dated 02.12.2021, it has already been stated that CCTV cameras are installed in all entry and exit gates of prisons and all police stations (which has already been noticed in the order previously passed by this court), it is to be noticed that such cameras were also installed by both the States on directions issued by the Supreme Court and this court, with Mr. Ghai again pointing today to the directions issued by the Supreme Court in the case of Paramvir Singh Saini v. Baljit Singh and others (2021) 1 SCC 184, which read as follows:-
“16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.
17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.
18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.”
To put it differently, the Bench then observes that, “Hence, with the directions issued by the Supreme Court also being to the extent that cameras be installed at not just entry and exit points and main gates of police stations, but also in all lock-ups, corridors, lobby and reception areas, verandas, out houses, rooms of officials, outside the lock-up rooms, station hall and in front of the police station compound, as also outside washrooms and toilets, the obvious implication is that no part of the police stations would be left uncovered by CCTV surveillance. Naturally therefore, any interrogation room would also be covered by such directions.”
Furthermore, the Bench then holds that, “Consequently, the DGP, Haryana, the DGP, Punjab, as also the DGP, U.T., Chandigarh, are now directed to file affidavits as to whether the aforesaid directions of the Supreme Court have been complied with or not, and if of course the matter is still being monitored by the Supreme Court, any order passed after 02.12.2020 would be brought out in the affidavits to be filed by the DGPs of both the States and the U.T., Chandigarh.”
Be it noted, the Bench then points out that, “It is to be again specifically noticed that the contention of the DGP, Haryana, to the effect that there is no such provision in the Cr.P.C. would seemingly get completely negated by the aforesaid directions given by the Supreme Court of India, with it to be highlighted by this court (which obviously would be in the knowledge of every authority), that as per Article 142 of the Constitution of India, the Supreme Court, in the exercise of its jurisdiction, may pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it, and any order or decree so passed would be enforceable throughout the territory of India. Further, the law declared by the Supreme Court would be binding on all courts as per Article 141.”
As a corollary, the Bench then naturally observes that, “Consequently and obviously, non-compliance of the directions issued by the Supreme Court in Paramvir Singh Sainis’ case, would amount to contempt of Court and this court would, naturally, also be bound to ensure that the directions issued by the Supreme Court are actually carried out at ground level by the States and Union Territory falling within the jurisdiction of this court. Hence, the aforesaid direction to the DGPs.”
At the risk of repetition, the Bench then envisages that, “Of course, to repeat, if the Supreme Court has passed any further order after 02.12.2020, as would grant further time to the States to comply with the directions given on that date, or the order issued has been modified in any manner, such orders would be brought out very specifically in the replies to be filed by the DGPs.”
It is worth noting that the Bench then mines no words to hold that, “Further, it is directed that not just in the case of the present petitioner, but in the case of every person who is in police custody or is being taken into police custody, all provisions of the Cr.P.C., including Section 41-B, 41-C, 41-D and 54, 55 and 55-A would be meticulously followed, with compliance reports in that regard to be made a part of the report under Section 173 of the Cr.P.C., as regards even medical examination necessarily to be conducted in terms of Section 55-A thereof.”
Quite ostensibly, the Bench then hastens to candidly add that, “Naturally, any non-compliance of the said statutory provision would amount to violation of the direction hereby given and any accused would have his/her remedy available to him/her in respect of violation of any such provisions and the directions given.”
Most remarkably, the Bench then is quite forthright in holding that, “It is to be again reiterated in this order, as was said in the last order, that no court is oblivious to the fact that the police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force. Hence, violation of such procedure, especially leading to violation of human rights even in the case of the worst criminal, cannot be ignored by any court.”
Most forthrightly, the Bench then also underscores that, “Further it is not an excuse for us, in India, to take a plea that many other countries are far more advanced than us and therefore there can be no comparison with the methods adopted there, in interrogating accused persons here. We are the 5th or 6th largest economy in the world and therefore any such plea taken would only seem to be taken as an excuse to not actually adopt contemporary methods of investigation, including interrogation, rather than taking shortcuts by using third degrees methods etc.”
Finally, the Bench then concludes by holding that, “Adjourned to 09.02.2022. To be shown in the urgent motion list.”
To sum it up, it merits no reiteration that what the Punjab and Haryana High Court has directed must be strictly implemented in letter and spirit. Of course, it must be rigorously ensured that the whole police station is monitored most effectively through CCTVs including interrogation room as directed most commendably by the High Court! No doubt, it must also be regularly ensured that no third degree method is resorted to by police under any circumstances and those who are found complicit in indulging in torture must be punished adequately and strictly so that the right message percolates among the men in uniform that they cannot take the right to life and personal liberty as guaranteed to every person as a fundamental right in India under Article 21 of the Constitution is actually rigorously implemented on the ground also where it matters the most! Let’s fervently hope so because this is exactly what forms the touchstone of this most commendable judgment!
Sanjeev Sirohi, Advocate.
CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power.
A comparative study on capital punishment in India
India is a well emerging nation simultaneously bunches of crime percentages were expanding these days. There are heaps of regulation in India to pause and control wrongdoings, despite the fact that the wrongdoing rates are expanding in light of the fact that the disciplines are not adequate for the crimes. The discipline ought to be extreme to lessen the crime percentage. All disciplines depend on a similar rationale to give punishment for the transgressor. There are various types of discipline in India like capital discipline, life detainment, detainment etc., Capital discipline is known as the most serious type of discipline.. This paper says about the situation with the death penalty generally the world and furthermore characterizes the idea of capital offense. It additionally clarifies about the methods of capital discipline in India . This article clarifies two significant speculations connected with the death penalty, to be specific reformative hypothesis and preventive hypothesis. In this exploration the specialist additionally clarified about most extraordinary of uncommon cases. This article referenced with regards to abolitionist and retentionist nations, likewise the death penalty in old India. This article has a point by point view about the capital discipline in India and furthermore the techniques for execution in India.
India is a country which comprise of enormous number of violations and crooks. In India all disciplines depend on the thought process to give punishment for the miscreant. There are two fundamental purposes behind monumental the discipline, one is the transgressor ought to endure and other one is forcing discipline on miscreants deters other from doing wrong. There are various types of discipline in India in light of their offense like the death penalty, detainment, life imprisonment, imprisonment with fine, ,etc. In this exploration the analyst zeroed in on the death penalty or capital punishment. The death penalty is one of the significant piece of Indian criminal equity framework. Violations bring about capital punishment are known as capital wrongdoings or capital offences. The term the death penalty is gotten from the Latin word “capitalis” signifies “with respect to head”. The term capital punishment is otherwise called capital punishment .Capital Discipline is an interaction by an individual is executed by a state for their criminal offense. Capital discipline or capital punishment implies the guilty party condemned to death by the official courtroom for a criminal offense. The death penalty which has been granted for the most terrible wrongdoings against humankind .Death punishment varies from spot to place, state to state and nation to country. There are numerous common liberties developments in India which says the death penalty is unethical. The common liberties associations are contended that death penalty influence one individual’s right. In jurisprudence, criminology and punishment, the death penalty implies a sentence of death.
Indian criminal statute depends on the blend of two hypotheses. The constitution too gave powers to president and lead representative to suspend or exonerate capital punishment. In India capital discipline is granted for the most genuine and appalling offenses. The death penalty is given for murder, robbery with murder, waging battle against the public authority and abetting mutiny,etc.,. Capital punishment is given just when the court reaches a conclusion that life detainment is lacking, in light of circumstance of the case. The Main point of this review:
To learn about the death penalty in India.
To learn about the criminological methodology of the death penalty.
CAPITAL PUNISHMENT IN INDIA
The death penalty is a lawful capital punishment in India. India gives the death penalty for a genuine offences .In India the death penalty is granted for generally egregious and terrible offense. In India Article 21 of the Indian constitution is”security of life and individual freedom”. This article says,” No individual will be denied of his life or individual freedom besides as per technique set up by law”. This article says right to life is guaranteed to each resident in India. In India IPC gives capital punishment as a discipline for different offenses, for example, criminal conspiracy, murder, waging battle against the government, abetment of insurrection, dacoity with murder, and hostile to – psychological warfare. The Indian Constitution has arrangement for kindness of capital discipline by the President. There are 22 the death penalty is occurred in India starting around 1995. After the autonomy a there are 52 the death penalty is taken in India In “Mithu vs territory of Punjab” the Supreme Court struck down the IPC Section 303 which give obligatory capital punishment for the offenders, India casted a ballot against a United Nations General Gathering goal requiring a restriction on the demise penalty. In November 2012, India again proceed with its stance on the death penalty by casting a ballot against the UN General Assembly draft goal demand. to boycott passing penalty.
MITHU VS STATE OF PUNJAB ( 1983)
In this case the Supreme Court struck down Section 303 of the Indian Penal Code, which provided for mandatory death sentence for offenders.
BACHAN SINGH VS STATE OF PUNJAB
In this case the Supreme Court says that capital punishment was given only to the rarest of rare Cases
JAGMOHAN VS STATE OF UP
This was the first case dealing with the question of constitutional validity of capital punishmentin India.
METHODS OF EXECUTION IN INDIA
In India the capital punishment is executed by hanging or shooting.
All capital punishment in India is implemented by hanging. After independence , In Mahatma
Gandhi case Godse was the first person to be executed by capital punishment in India. The SC
of India suggested capital punishment must be given only to the rarest of rare cases in India .
In India the Army Act and Air Force Act also provide implementation of capital punishment in India In Air Force Act, 1950, section 34 allows the court martial to thrust the death sentence for the unlawful act mentioned in section 34(a) to (o) of The Air Force Act, 1950. In Indian the government mostly used hanging method to execute capital punishment.
CRIMINOLOGICAL APPROCH OF CAPITAL PUNISHMENT-:
There are two types of theories of punishment in capital punishment are-:(1)- Reformative theory
(2)- Preventive Theory
“tit for tat turn the entire world blind” by Mahatma Gandhi. This line is the pushed of reformative hypothesis of discipline. All speculations depend on the guideline to offender. The primary goal of every one of these hypothesis is to change the sentenced individual through individual treatment. The principle point of the reformative hypothesis is to instruct or change the wrongdoer without anyone else. A guilty party is discipline for his own benefit. This hypothesis has been upheld from different sides. Reformative hypothesis support criminal science. Criminal science says each wrongdoing as phenomenon, a gentle type of madness. criminal human sciences ,criminal social science and therapy upholds Reformative hypothesis. This hypothesis intends to address the criminal personalities into a decent way and they can lead a day to day existence like typical resident. This hypothesis condemn all sort of corporal punishment.
The principle point of this preventive hypothesis is to get the wrongdoer far from the general public. As per preventive hypothesis the fundamental point of discipline is to set a model for other people and keep them from crimes. In this hypothesis the guilty parties are rebuffed with death punishment, life detainment. Preventive hypothesis was upheld by numerous law reformers on the grounds that preventive hypothesis has adapting Penal law. On numerous reformers view the preventive hypothesis has a genuine impact on guilty parties. The primary reason for preventive hypothesis is to make strides that blamed individual doesn’t rehash the wrongdoing after satisfaction in Punishment. This hypothesis clarifies that capital discipline as a most extreme type of discipline due to its disadvantage impact. A man has ended the existence of another man. So he is dependable to be denied of his life. In India they follows preventive hypothesis.
In India, the death penalty has been Practiced since old occasions. Numerous nations nullified capital punishment11. At the point when we check out our public wrongdoing insights capital punishment has not ended up being obstacle for doing offense, the wrongdoings rates increment as it were. We need to change our laws particularly for capital punishment in India. Our laws should change and the discipline ought to be so afflictions and it ought to be a model for individuals around him, about his unlawful demonstrations. There is a discipline more terrible than capital punishment. Make the wrongdoer nonstop conversation about the death penalty and the thorough life in jail is more awful than capital discipline. Every constantly the wrongdoer should feel for his offense.
The death penalty isn’t viable to lessen violations in Society.
Henceforth invalid theory demonstrated.
Indian criminal statute depends on the blend of two hypotheses. The constitution too gave powers to president and lead representative to suspend or exonerate capital punishment. In India capital discipline is granted for the most genuine and appalling offenses. The death penalty is given for murder, robbery with murder, waging battle against the public authority and abetting mutiny,etc.,. Capital punishment is given just when the court reaches a conclusion that life detainment is lacking, in light of circumstance of the case.
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