MURDER AND CULPABLE HOMICIDE

by Kumar Saurav dev

Homicide is a term that originates from the Latin term ‘Homo’ means human and ‘Cida’ means killing. Homicide is a killing of a human being by a human being.

It can be both lawful and unlawful.

If the act falls within the general exceptions (chapter iv), then it will be considered as lawful homicide, otherwise, it will be considered as unlawful homicide. Such as

• Culpable homicide not amounting to murder (section 299)
• Murder (300)

Culpable Homicide

Culpable Homicide is a kind of unlawful Homicide and it is provided under section 299 of IPC.

Ingredients

• Causing of death of a human being.
• Such death must be cause by doing an act
• With the intention of causing death; or

This part will apply when the act will within the exception of section 300.

• With the intention of causing bodily injury as is likely to cause death;

To check the likeliness, three things are taken into consideration i.e. murder weapon, nature of the wound, It the wound is on a vital part.  

• With the knowledge as is likely to cause death

Act of dangerous nature

Death of a human being is caused is not enough and to attract this section one of the mental states mentioned in ingredient must be present otherwise it will not amount to culpable homicide.

Illustration

A not knowing that B is having a brain tumor hits him on the head with a cricket bat, D dies in consequence (because of the bursting of tumor). A will be held liable for culpable homicide as his intention was to cause injury, if a would have known about the brain tumor of D, then A would have been liable for murder.

The Empress vs Gonesh Dooley (Snake charmer case)

A snake charmer exhibited in public a venous snake whose fangs he knew has not been extracted however, he places the snake on the head of one of the spectators. The spectator while trying to push off the snake was bitten by the snake and consequently died also. The snake charmer was held liable for culpable homicide as his act was dangerous but he was not knowing that the snake would bite the spectator.

Murder

Murder is also a kind of unlawful homicide and it is provided under Section 300 of IPC.

Ingredients

• Causing death

(i) There should be an intention of causing death

• Intention

Doing an act

(ii) Intention of causing bodily injury as the offender knows to be likely to cause death. There should be an intention to cause bodily injury that is likely to cause death (Intention + Knowledge) or

(iii) The act is done with the intention of causing bodily injury to any person and the bodily injury sufficient in the ordinary course of nature to cause death.

• Knowledge

The act must be done with the knowledge that the act is likely to cause the death of another.

(iv) If the person committing the act knows that his act is so imminently dangerous that, it must in probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Section 300 is subject to the exception of section 300

Illustration

A knowing that B is having a brain tumor, hits him on the head with a cricket bat, B dies in consequence (because of the bursting of the tumor). Here, A would be held for Murder as he intended to cause bodily injury and the act was likely to cause death.

Illustration

A beats B with a bamboo stick with the intention to cause bodily injury, B dies in consequence. Here, A will not be held liable for murder as he was not sufficient in the ordinary course of nature to cause death.

A beats B with an Iron rod with the intention of causing bodily injury, B dies in consequence. Here, A will be held liable for murder as beating a person with an iron rod is sufficient in the ordinary course of nature to cause death.

Illustration

Dancing with a poisonous blade in his hand, B comes in the contact with the poisonous blade and dies in consequence. Here, A will be held liable for murder as dancing with a poisonous blade is so imminently dangerous that in all probability will cause death to any person.

Difference between Culpable homicide and Murder

Culpable homicide	Murder
Culpable homicide is the genus	Murder is a species
There is some intention. But it is not so stronger as in murder.	There is a strong intention to cause death. Generally, there shall be a plan to kill.
Less serious	More serious
Every culpable homicide is not murder	Every murder is primarily a culpable homicide
When there is the probability of death	When there is more probability of death
When there is a likelihood of death	When there is the certainty of death
Punishment is lesser (section 304)	Punishment is heavier (section 302)

State of A.P. v. R. Punnayya AIR 1977 SC 45

In the scheme of the Indian penal code Culpable homicide is genus and murder its species. All murder is a culpable homicide but all culpable homicide is not murder. Culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder.

Reg v. Govinda (1877) ILR 1 Bom 342

In this case, a clear distinction was made between culpable homicide and murder.

Facts

There was a quarrel between husband and wife in a fit of anger the husband knocked the wife. The wife becomes unconscious and the husband in order to wake the wife, punched her with closed palms but unfortunately, the wife died because of internal bleeding in her brain. The person was held liable under section 299 because there was no intention to cause death and the act was not grave enough to cause death. (Court takes three things into consideration i.e. intention, knowledge, and probability).

In this case, a clear distinction was made between culpable homicide and murder.

• Culpable homicide is wider then, the term Murder.
• Murder is a monstrous form of culpable homicide.
• Murder can’t happen without culpable homicide as every murder is culpable homicide but all culpable homicide is not murder.
• The intention is not absolute in culpable homicide but in murder the intention is absolute.
• The probability of causing death is higher in murder than culpable homicide.

Mohd. Rafiq @ Kallu vs State of Madhya Pradesh LL 2021 SC 461

The appellant was a truck driver who was alleged to have killed a Sub-inspector and the trial court and high court found him guilty of murder and imposed rigorous imprisonment for life under section 302 of IPC. After which an appeal was filed by the accused in the supreme court and the Supreme held him liable under section 304 for culpable homicide and he was imposed ten years imposed. The Supreme court also made a distinction between culpable homicide and murder.

The use of the term ‘likely’ in respect of culpable homicide (section 299), highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however, restrains from the use of the term likely, which reveals the absence of ambiguity left on behalf of the accused. There is a subtle distinction of intention and knowledge involved in both crimes. This difference lies in the degree of the act. There is a very wide variance of the degree of intention and knowledge among both the crimes.

Conclusion

In both cases is it culpable homicide or murder, death is caused but the difference is the intention of the accused, In, culpable homicide the intention is less intention but in the case of murder, the intention is absolute and culpable homicide is genus and murder are species. So, we can say that someway it goes parallel as in both the cases death is caused but intersect as the difference lies between the intention of the accused.

References

[i] Indian Penal code, Ratanlal and Dhirajlal (36^th edition)

[ii]https://www.livelaw.in

[iii] Picture: Lawfully Legal

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JUDICIAL INTERPRETATION OF RIGHT OF REFUGEES

By Geetanjali Sharma

This article explores the influence of the existing ad hoc structure of the legal framework that controls refugees in India on the basic parameters of refugee treatment under Indian law and administrative practice. It examines India’s normative commitment to refugee protection, as well as judicial efforts to broaden refugee protection and administrative processes that regulate refugee living. It aims to make a case for the creation of a distinct legislative framework that specifies the legal status of refugees in India based on this discussion.

INTRODUCTION

A refugee is defined as a person who is outside of his or her place of nationality or habitual residence and is unable or unwilling to return because of a well-founded fear of persecution based on race, religion, nationality, political opinion, or participation in a certain social group. There are several elements of refugees that are extremely important to both India as a country and the refugees themselves, notably in terms of law enforcement.^[1] Given the current security situation in the country, particularly as a result of the participation of some of the country’s Neighbours in this respect, a purely humanitarian issue like “refugees” has become impacted by national security concerns. It is a fact that we cannot afford to ignore this element of the situation in any dispassionate.

ISSUE

 While the Indian Constitution makes law and orders a state issue, foreign relations and international orders are solely the responsibility of the Union government. As a result, a number of government entities, both federal and state, have been tasked with dealing with refugee issues related to law enforcement. Furthermore, the Union government sets all refugee policies, even if the effect of the refugee crisis as a whole must be borne by the state administration to a greater extent, if not entirely. Security personnel at international borders, immigration personnel at land checkpoints, international airports and seaports, as well as a slew of state police officers, are all involved in law enforcement that affects refugees in some manner. All of the aforementioned categories of individuals are charged with the onerous obligation of preserving the country’s national and internal security as their first and foremost charge, as the name “security” implies. They must ensure that the rules of the nation are followed when it comes to refugees, without disregarding or neutralizing security concerns.

However, it is also their job to ensure that the humanitarian undertones that are so closely linked with refugees, in general, are not overlooked. It is also generally recognized that any situation involving “refugees” has human rights implications. It goes without saying that law enforcement officers must take care of these as well. A thorough grasp of the circumstances surrounding unique refugee situations by the relevant law enforcement agency or even a single official would pave the path for taking care of both security and humane aspects—from both a humanitarian and human rights standpoint. Simultaneously, knowledge of the laws of the land and how security and enforcement personnel operate on the part of all those who deal with refugees, whether they are part of the government machinery or not (including international agencies, NGOs, and so on), would make looking after the refugees much easier.

JUDICIAL INTERPRETATION IN INDIA

The courts have played a critical role in ensuring the safety of refugees. Court decisions have addressed legal loopholes and, in many circumstances, provided refugees with humanitarian protection[2]. In addition, Indian courts have permitted refugees and intervening non-governmental organizations (NGOs) to bring lawsuits in their jurisdiction. In addition, the courts have interpreted constitutional principles, existing legislation, and, in the lack of municipal law, international law requirements to provide protection to refugees and asylum seekers. In a number of cases, Indian courts have ruled that refugees are entitled to the constitutional protection of life and liberty. The Supreme Court held that Article 21 of the Constitution, which protects the life and liberty of Indian citizens, is extended to all people, including aliens, and that the state is obligated to protect the life and liberty of all people.

The Imphal bench of the Gauhati High Court decided in Zothansangpuri vs State of Manipur^[3] that refugees have the right not to be deported if their lives are in danger. The Supreme Court ruled in Dr. Malvika Karlekar vs Union of India^[4] that authorities should evaluate whether refugee status should be given and that the petitioner should not be deported until that determination was reached. The Gauhati High Court, in Bogyi vs Union of India^[5], not only ordered the interim release of a Burmese man from incarceration but also authorized his stay for two months so that he may seek refugee status with the UNHCR.

In the case of U Myat Kayew and Nayzan versus State of Manipur^[6], the Gauhati High Court handed down a historic decision.  It featured eight Burmese, ranging in age from 12 to 58, who were held for unlawful entrance in the Manipur central jail in Imphal. These Burmese pro-democracy activists willingly surrendered to Indian police and were apprehended. They were accused of unlawful entrance into India under section 14 of the Foreigners Act. They did, however, file a plea for their release in order to apply for refugee status with the UNHCR in New Delhi. Under Article 21, the Gauhati High Court held that asylum seekers who enter India unlawfully should be allowed to visit the UN High Commissioner for Refugees to seek refugee status.

 In addition to the courts, the National Human Rights Commission has served as a watchful and effective monitor for refugees’ protection. The SC granted relief based on foreigners’ rights under articles 14 and 21 of the Constitution. The right of a refugee to leave the nation has also been supported by the courts. The courts decided in Nunag Maung Mye Nyan vs. Government of India^[7] and Shar Aung vs. Government of India^[8] that even those refugees facing charges of the unlawful entrance should be given departure permits to allow them to leave. However, because judicial interventions are case-specific by definition, every story of the invention has been mirrored by stories of apathy and non-interference. Consequently, while some rudimentary articulation of procedural rights for refugees, no particular acknowledgment of substantive rights has been made.

As a result of the foregoing discussion, India’s legal framework for refugee protection has been defined by an eclectic mix of administrative ad hocism and judicial assertion of constitutional rights. Certain fundamental rights are guaranteed by the Constitution to all people, including refugees. These constitutional principles have been bolstered by broad judicial interpretation. However, as the following section of this paper argues, the refugee community’s enjoyment of these rights has remained a pipe dream due to inconsistencies and arbitrary government policies driven more by political expediency than by legal imperatives.

CONCLUSION

Refugees in India are protected in a skewed and inadequate manner under Indian law and practice. In India, the law fails to recognize refugees as a unique group of people, instead of treating them like any other immigrant. As a result, it fails to recognize the unique circumstances under which a refugee departs his or her home country, as well as the resulting inconsistency in applying the general Foreigners Act regime’s conditions for legal travel. The lack of separate legislation on refugee protection, rights, and entitlements has resulted in a huge number of refugees being denied basic protection. This rejection is against the spirit of India’s international human rights commitments. The absence of a particular legal framework governing refugee status does not, however, imply that refugees do not get protection or aid.

The court and related organizations, like as the National Human Rights Commission, have attempted to address the refugee issue through inventive judicial interpretation, establishing various procedural rights and, in many circumstances, preventing forcible deportation. However, such interventions have been restricted to individual situations, with judicial decisions not being adopted across the board. This has arisen as a result of the lack of clear refugee legislation. Because of this, arbitrary executive actions and acts of discrimination have been difficult to address. This also implies that the decision to treat a person or a group of people as refugees or not is based on the facts and circumstances of the cases being considered, rather by political factors.

 Due to the lack of national legislation governing refugee status, refugees are reliant on the generosity of the state rather than a rights regime to rebuild their lives with dignity. As a result, refugees are at the mercy of the state and have no remedy against the state’s systematic breaches of its legal responsibilities. As a result, a just, fair, and humane response to the issue of refugees in India, in accordance with India’s international and constitutional obligations, necessitates the immediate adoption of a definite statutory regime that clearly defines refugees as a distinct class of persons, spells out a fair procedure for determining refugee status, and outlines a due process for refining the status of refugees.

#Refugees,#UNCHR, #constitutionalobligation, #humanrights, #humanitarian, #lawenforcement, #fundamentalrights,#nationallegislation, #judicialasseration,#

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^[1] Saikal Amin (ed.) Refugees in the Modern World : A Reader (Canberra,1989); B.S. Chimni, International Refugee Law(New Delhi,2000); Gowllard Vera Debbas, The Problem of Refugees in the Light of Contemporary International Law Issues (London,1995); Guy S Goodwin Gill, The Refugee in International Law (Oxford, 1996);J.Hathaway, The Law of Refugee Status (Toronto,1987): Tim Dunne and Nicholas J.Wheeler, (ed.) Human Rights in Global Politics (Cambridge, 1999); Cornellis D.Jong de, “The Legal Framework: The Convention Relating to the Status of Refugees and the Development of Law Half a Century Later” International Journal of Refugee Law, vol.10(1998),pp.688-99.

^[2] KSK Kumar, and J Parikh, Indian agriculture and climate sensitivity: Global Environmental Change, Part A: Human and Policy Dimensions [Global Environ. Change Pt. A: Human Policy Dimensions]. Vol. 11, no. 2, pp. 147-154. Jul 2001.

^[3] Civil Rule No 981 of 1989.

^[4] (Criminal) 583 of 1992 in writ petition.

^[5] Civil Rule No 981 of 1989

^[6] Civil Rule No 516 of 1991

^[7] CWP No 5120/94.

^[8] WP No 110 of 1998.

[9] Picture: Ashley Housing co

ANALYSIS OF SECTION 161(3) CRPC

By Kashish Batta

ABSTRACT

Before a trial is started in court there are certain procedures that must be followed known as pre-trial procedure or pre-trial process. There are many stages in an investigation process, one of which is a police investigation. The most important reason which is there for conducting an investigation is the evidence collection. This article discuss regarding the issues and the benefits of the section 161(3) of the code of criminal procedure along with the case laws.

INTRODUCTION

The Criminal Procedure Act (amendment) of 2008 ^[1]introduced a clause in the section 161 (3) under which the officer has the power to record a witness’s statement by audio-video or any other electronic means. The use of the term may in the Section.161 (1) and in clause S.161 (3) of the code of criminal procedure indicates that it is the police officer’s discretion to note or record the witness statement. It is not at all mandatory or there is no compulsion for the investigating officer to reduce the statement of the person who is examined in writing. But the declaration, if registered, must be registered as it was actually made. As subsection (3) prohibits making the details of a registered statement under Section 161 of the criminal procedure Code. It is also envisaged that the declarations made pursuant to this paragraph may also be recorded by electronic audio-video means^[2]. It is also expected that a statement which is being made by a woman that has to be recorded by the female police officer or any female officer.

BENEFITS

There are certain benefits with of this section 161(3) of the code of criminal procedure that are as follows

• EASY TO PROVE CASE- In the event or the situation that the person voluntarily admits a fact, or of the crime itself, then it is easier to prove it in court if this declaration by the witness is recorded by audio-video or other electronic means.
• LESS BURDEN ON INTERROGATING OFFICER- If an audio or video recording is made, the interrogating officer is exempted from the obligation to write down the person’s statement. With this advancement of technology also less burden is there of the investigating officers
• EASY ASSESSIBLE- The officer would also be able to assess the body language and the way the person being questioned, which could provide them with some much-needed insights into whether the person is being truthful or not. With this recoding, it helps in further investigation of the case which is there
• BENEFIT FOR YOUNG OFFICERS- some of these can be used later to train young officers and show them the appropriate method of investigation and interrogation.
• FAITH OF PUBLIC- Furthermore, this is also another progressive step towards increasing the confidence of the general public in the criminal investigation system and also the police practices as interrogations are no longer behind closed doors and the record of the statement can be viewed by the court
• TRANSPARENCY- It is imperative to remove this evil practice and amend clause S.161 (3) of the code of criminal procedure to introduce a mandatory requirement to record the investigation process and the witness statement will be a step in the right direction. This will be useful in determining whether the statement made by the witness is indeed genuine or was obtained by means of force or torture. The use of the audiovisual recording method also ensures transparency in the interrogation process and sheds light on whether the interrogating officers extracted the statement from the person by coercion, force or torture.

CASE LAWS

The legislative intent behind the introduction of the provision according to which depositions can also be recorded in audio and video mode was to avoid manipulation, falsification, insertion and replacement of the statements which is being made by witnesses and this was also held in the case of sube Singh v state of Haryana^[3]. In a case where there was an inexplicable delay for 10 days, and there were also some contradictions, the Supreme Court held that although the contradictions themselves may not have much significance, however, considered in light of the delay in examination, the suspicious evidence. In the case of balakrishna swain v state of Orissa,^[4] in this court said that if there is any such delay then in that situation the investigating officer can be asked about such delay and he has to specify the reasons for that. There is another case of jodha khoda rabari v state of Gujarat ^[5]in which court stated that there is common ground that a few hours’ delay in recording the informant’s statement does not in itself constitute serious infirmity, unless there is material suggesting that the detective agency deliberately delayed in order to offer the perpetrator the opportunity to set up a case of his choice

The police officer who is conducting an investigation is not required to reduce the statements of witnesses which is examined by him in writing, but it is desirable that he at least record the substance of such statements. If he does not also record the merit of the statements, then in that circumstance it may be taken into account by the court in assessing the evidence, since it is possible that if the witness were contradicted at the hearing with his previous statement, all his evidence could have been broken. But the court will not accept that a police officer deceives his investigation in order to make such a report. The police officer would be free to prove to the court that his failure to do so was due to reasons beyond his control. If he records the statements or their substance, he can do so either in the diary case kept under section 172, or on separate sheets, loose or sewn into a notebook, or in both but he must record the statement of each witness or its substance separately and truly as stated in subsection 3 and this was held in the case of paresh kalian das bhavsar v sadiq yakubbhai^[6].

SUGGESTION AND CONCLUSION

There are various benefits to recording a witness’s statement, including creating a durable record of the statement, the ease of proving the statement in court, and most importantly, making the investigation process open to public scrutiny. In addition, audiovisual methods of recording statements are useful for stemming cases of prison violence. The prevailing problem of a witness becoming hostile in court will be largely resolved if the law provides for a mandatory requirement of audio-video recording of statements under the section 161 (3) of the code of criminal procedure. It is the need of the moment to make the infrastructural and monetary investments necessary to make the mandatory video recording of declarations a reality. Central and state governments must take proactive steps to ensure that every police station in the country is equipped with video recorders for the purpose of recording statements. The necessary training must also be provided to people in the villages in order to effectively implement this process. It is time for the Indian legal system to evolve with the changing needs of society and keep up with the latest technological developments. 

#technologydevelopment #recording #audiovideorecording #amendment2008 #investigationofficer   #witnessstatement    #writingstatement   #investigation   #examination #criminal procedure amendment act

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^[1] https://indiankanoon.org/

^[2]Ayushi tripathi, Examination of Witness and Recording of Their Statement, law time journal (October 4, 2019)

^[3] https://main.sci.gov.in/

^[4] A.I.R. 1971 S.C. 804

^[5] 1992 CrLJ 3298 (Guj)

^[6] A.I.R. 1993 S.C. 1544

TAX APPLICATION ON MONETARY REWARDS OF MEDAL WINNERS OF THE OLYMPICS

by Anurag Yadav

Abstract: This article is talking about the issue whether monetary rewards given to medal winners of the Olympics are taxable? It also tell about the important section 10(17A) which clear about this question and also the Central Board of Direct tax, Circular that clears doubt regarding this question and also the judgment related to rewards given to Abhinav Bindra.

INTRODUCTION: The once in four years prestigious sporting event, which was originally scheduled to be held in 2020 is being held from July 23 to August 8, 2021, amid COVID-19 pandemic in which U.S.A topped the list and India won 7 medals. Neeraj Chopra, Indian Javelin thrower has created history by becoming the first ever Indian to win an Olympic gold in the track and field events at the 2020 Tokyo Games and also the second ever athlete from India after shooter Abhinav Bindra to win an individual Olympic gold. It’s raining rewards for Neeraj after securing second gold for the country as Haryan government announced 6 crore and 50% concession in land anywhere in Haryana, 2 crore by Punjab Government, 1 crore by BCCI, 2 Crore by Byjus, CSK announced 1 crore and many others. Other  players and Indian women hockey team who also brought Silver and Bronze medal also received monetary assistance from government and Other organisations. But the Major concern is Whether all these rewards or monetary assistance to Olympic players are taxable or not? To know answer of this question we have to look over the various legislations i.e Income tax act,1995, CBDT order 2014 and various other related aspects.

What does Section 10(17A)  of Income Tax Act,1995 says ?

Section 10(17A) in The Income- Tax Act, 1995

(17A) any payment made, whether in cash or in kind,-

(i) in pursuance of any award instituted in the public interest by the Central Government or any State Government or instituted by any other body. and approved by the Central Government in this behalf; or

(ii) as a reward by the Central Government or any State Government for such purposes as may be approved by the Central Government in this behalf in the public interest;

will be exempt.^[1]

What does Central  Board of Direct Taxes, Circular No. 2/2014 stipulates?

The Central Board of Direct Taxes had issued Circular No. 447 (hereinafter called “the Circular”) on 22nd January, 1986 clarifying that awards received by a sportsman, who is not a professional, will not be liable to tax in his hands as the award will be in the nature of a gift and/or personal testimonial.

The said Circular was applicable in a tax regime when gift was not taxable in the hands of the recipient and with the fundamental change in the manner of treatment of gift by amending the definition of income under sub-section (24) of section 2 by introduction of sub-clauses (xiii), (xiv) and (xv) therein and insertion of clauses (v), (vi) and (vii) in sub-section (2) of section 56 of the Income-tax Act, 1961 (‘Act’), the gifts became taxable in the hands of recipient w.e.f. 1-4-2005. The said Circular No. 447 had therefore become inapplicable with the change in law and is to be treated as overridden by the aforesaid statutory provisions w.e.f. 1-4-2005.

Further, in terms of provisions of clause (17A) of section 10, Central Government approves awards instituted by Central Government, State Government or other bodies as also the purposes for rewards instituted by Central Government or State Government from time to time. Tax exemption can be sought by eligible persons in respect of awards or rewards covered by such approvals.^[2]

Landmark Case law to answer this question is given below:

To know the answer, let’s revisit the case of Abhinav Bindra, who won gold at the Beijing Olympics in 2008. Bindra received Rs 4.81 crore in cash. The Income Tax Department demanded tax from him under Section 56(2)(v) of the Income Tax Act.

Bindra appealed to the Income Tax Appellate Tribunal (ITAT), arguing that the amount should not be taxed in view of Circular 447 issued by CBDT, which says only income received by a professional sportsperson shall be taxable, clearly implying a non-professional sportsperson is not liable to pay any tax. The ITAT ruled in Bindra’s favour. It held that no tax is required to be paid since he’s an amateur shooter and sum received by him is not in the nature of income.

A  similar view was taken in the case of cricketers Kapil Dev and G.R. Viswanath. Now what distinguishes a professional from an amateur sportsman? Since the I-T Act does not define a “professional”, whether a sportsman is a professional or a non-professional is decided based on facts and circumstances of each case. Further, awards and prizes received from any government or on its behalf are exempt under Section 10(17A) and from local authorities or trusts and funds are not taxable as per Section 56(2)(vii). Also, there is no special tax that covers such rewards. It can be safely assumed that an amateur sportsperson or a non-professional sportsperson actually gets all the sum of the prize as there’s no tax payable on it.^[3]

CONCLUSION AND SUGGESTION

After a brief discussion on the topic whether monetary rewards given to medal winners of the Olympics are taxable ? We studied the Section 10 (17A) of Income tax act 1995 And CBDT Circular No. 2/2014 and we came to know that the rewards given by central and state governments are not taxable. So all rewards given by the central and state government to Olympic players are not taxable, thus it means these awards received by Olympic players are exempted. But the awards that are given to them by other organisations like Byju’s, BCCI, CSK etc in case of Neeraj Chopra and other players are taxable and CBDT Circular stipulates that rewards are the gifts to the Olympic players that’s why gift should be exempted. In Landmark judgement of Abhinav Bindra,Income Tax Appellate Tribunal (ITAT) held that non professional players who are amateur play for hobby not as a profession are exempted from tax as it was not their source of income. The rewards given to Olympic players should be totally exempted from tax as this is not the source of their income and these are the gifts rewarded to them unilaterally from the organisation. Although Central and State government rewards are exempted but besides this the reward given by Organisation like Byju’s ,BCCI,CSK etc should also be exempted from tax.

Tags: #Olympic #Tokyo Olympic 2020 #Medal winners #Abhinav Bindra #Neeraj Chopra # Section 10(17A) of Income tax act, 1995 # CBDT #Monetary awards # Not taxable #Income tax appellate tribunal

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^[1] Available at: https://taxguru.in/income-tax/taxability-awards-u-s-10-17a-awards-professional-sportsman.html (Last visited August 27 2021)

^[2] CIRCULAR NO. 2/2014 [F.NO.199/01/2014-ITA.I], Available at: httCNNET.zesncometaxindia.gov.in/Communications/Circular/Circular2_2014.htm#:~:text=Further%2C%20in%20terms%20of%20provisions,Government%20from%20time%20to%20time. (Last visited August 27 2021)

^[3] Available at: https://m.economictimes.com/wealth/tax/olympic-medal-winners-wont-have-to-pay-tax-on-cash-prizes/articleshow/53993146.cms (Last visited August 27 2021)

[4] Picture: NBC

CONDONATION OF DELAY UNDER THE LIMITATION ACT

by Ekta Vats

INTRODUCTION

Condonation of delay means the extension of the limited time period as given under the limitations act,1963. The aggrieved party needs to show sufficient cause for the delay and if the court finds it as sufficient then such appeal or we can say the application is admitted by the court even after the limited time frame as prescribed by the Limitations act,1963. Hence we can say that condonation of delay is the exception of the limitations act, 1963. Section 5 of the limitations act says about the extension of the prescribed time period if sufficient cause is given by the aggrieved party. It means that if the party doesn’t show any reasonable ground for the delay then his appeal gets rejected by the court.

LIMITATION ACT, 1963^[1]

The limitation act, 1963 came into force after repealing of Limitation act, 1908 by the Third law commission. It basically contains 32 sections and 137 articles. This act provides a limited time period for different cases in order to prevent litigation from being dragged into longer periods of time and to give quick disposal of cases.

Section 3 of the Act says that if any suit or application is bought before the court after the expiration of time as mentioned then the appeal will get dismissed by the court. So appeal must be filed within the prescribed time in order to obtain further proceedings. However, condonation of delay is one of the exceptions to this act as it is the extension of the prescribed time period as given under limitation act,1963.

DOCTRINE OF CONDONATION OF DELAY

This doctrine of condonation of delay is the extension of the prescribed time period under the limitation act,1963 which provides the maximum time period for filing an appeal or application. This doctrine is applied to criminal cases only and is not available to execution proceedings. It is applied only when there is an interpretation of sufficient cause, then only the court accepts the appeal otherwise dismisses it. Hence for taking the benefits of this doctrine the applicant must need to prove sufficient cause in order to condone the delay. This doctrine doesn’t include suit, the reason is given below.

The reason behind the exclusion of suit under the doctrine of condonation of delay?^[2]

This doctrine includes appeal, application but is not suit under section 5 of the limitation act. The reason behind the exclusion of the term suit is section 3 of the limitation act. This section says that if any suit is filed after the expiration of the prescribed time period, then that suit is dismissed. So if the suit is included in section 5 then section 3 pertains to be irrelevant and will have no effect.

An expression ‘SUFFICIENT CAUSE’

The above expression has not been defined in the Act, it has a wider meaning, it is very comprehensive and broad in nature. The cause must be beyond the control of the invoking. In order to advance the cause of justice, it is construed liberally.

The two rules were laid down with regards to the expression sufficient cause by the Court:

a) The cause must be beyond the control of the invoking.

b) The parties must not be lacking bona fide, not be shown to be negligent or inactive.

General principles of the doctrine of condonation of delay

• The applicant must satisfy the court for not filing the application under the prescribed time. It means party must show the sufficient cause (reasonable grounds) for delay in filing the application.
• The event should occur before the period of expiration and not after the expiration period, if occurred so then sufficient cause will not be considered and at last the application or appeal will be dismissed by the court.
• It is the discretion of court to consider appeal or not, i.e the court can dismiss the appeal even after the proof of sufficient cause.
• The decision should not be mala fide or arbitrary, it must be judicial.

Instances where delay condoned

Under the following circumstances delay can be condoned:

• If applicant is suffering from fever.
• If applicant is minor who is not able to understand the procedure of court.
• If applicant has not sufficient money.
• If applicant is suffering from mental shock because of personal loss.
• If father of applicant is illiterate who needs more time for filling the application or appeal.

Case laws

• Union of India v. Tata yodogawa Ltd, 1988^[3]

In this case, the application for the condonation of delay gets dismissed by the court as there is no accurate explanation being explained by the applicant for the cause of delay in filing the special leave petition. Hence dismissed.

• Collector of Central Excise, Madras v. A.MD Bilal & Co., 1999^[4]

In this case, the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. 

CONCLUSION

It can be concluded that with this doctrine the main aim of the court is to provide justice and if a suit is filed after the limitation period then the appeal will dismiss but some exceptions go on with this doctrine i.e., the Doctrine of condonation of delay which provides the acceptance of appeal even after delay but the reason behind delay must show sufficient cause.

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^[1] Limitations act, 1963

^[2] https://blog.ipleaders.in/condonation-of-delay/

^[3] 1988 (38) Excise Law Times 739 (SC)], https://indiankanoon.org/search/?formInput=condonation%20of%20delay

^[4] 1999 (108) Excise Law Times 331 (SC)], https://indiankanoon.org/search/?formInput=condonation%20of%20delay

[5] picture: the indian corporate law

BREASTFEEDING LAWS: LAWS IN INDIA, USA, AND UK

by Chesta Bamel

ABSTRACT:

“A mother’s love for her child is like nothing else in the world. It knows no law, no pity. It dares all things and crushes down remorselessly all that stands in its path.” -Agatha Christie

The love of a mother towards her child is incomparable. There are so many modes of showing the love of a mother, but one of the purest forms is feeding her child from her breast. Breastfeeding is prolonged in India. There are so many cultural practices, especially in India, which are associated with breastfeeding and it is the concept of ritual purity. This article is all about breastfeeding and laws related to it in countries like India, the USA, and the UK.

INTRODUCTION:

Breastfeeding is the most effective way to improve the health of the child and it also ensures the survival of the child. It is considered as the most ideal food for babies, because it’s clean, safe, and healthy, as it contains antibodies, which help the child to protect against many illnesses like urinary infection, diarrhea, etc. But, according to a report of World Health Organization, nearly 2 out of 3 infants are not exclusively breastfed for the recommended 6 months,[1] and according to the report of the Centers for Disease Control and Prevention, nearly 80% of the infants are ever breastfed and 20% are breastfed exclusively six months.[2] Despite these issues, the mothers who breastfed their children are also facing various problems. Whenever a mother breastfeeds her child in public, it becomes a debatable issue. The mothers are also not sure about their rights, as to whether they can breastfeed in public or not. Various countries provide some rights to women in order to breastfeed their children. Some of these countries are:

LAWS RELATED TO BREASTFEEDING IN INDIA:

India ranks 78^th position in the World Breastfeeding Trends initiative (WBTi) out of 97 countries. The country has set a target for an exclusive breastfeeding rate of 69% by 2025.^[3] The Constitution of India provides a right to women under Article 42 as, “the arrangement for the conscious states of work and maternity alleviation the state, that will make the arrangements for verifying the empathetic states of work and for maternity help.”^[4]

The Maternity Benefits Act also provides some benefits to women and the act states that “the employers should provide nursing breaks of prescribed duration for new mothers in order to express breast milk for their child. These breaks provided to them are out of any compensation to the employer and they are fully paid and are available until a child reaches the age of 15 months.”[5] This Act was amended in 2017 and passed by the Rajya Sabha in August 2016, and this Act has also been passed by the Lok Sabha in March 2017. The new amendment Act provides that, “the facility of crèche must be provided tot hem in every firm having 50 or more employees. A woman worker will be allowed 4 visits to crèche a day.”^[6] 

There are some rules provided especially for those women who are working in factories. According to Factories Act, 1963, all employers should construct crèches for workers’ children. The Act also compels the rules in order to maintain the structures of such crèches.^[7]

LAWS RELATED TO BREASTFEEDING IN THE USA:

On March 30, 2010, President Mr. Obama signed an Act called Affordable Care Act (ACA).^[8] Under which a lot of provisions were amended, among them, section 7 of the law amends the Fair Labor Standards Act of 1938, [9]which stated that an employer should provide a reasonable break for the employees so that they can breastfeed their child. The employee has no right to compensate the employer, receiving reasonable break time for any work time spent for such purpose. It is the duty of every employer to provide a place to breastfeed other than a bathroom. It is mandatory in case there are more than 50 employees in a firm or any business. The Act also provides new private coverage for specified women’s preventive health services with no cost-sharing. This includes breastfeeding support, supplies, and lactation counseling.

LAWS RELATED TO BREASTFEEDING IN UNITED KINGDOM:

In the United Kingdom, it is completely legal to breastfeed in public areas, without any hesitation, and the Equity Act of 2010, protects women by stating that, “treating a woman unfavorably, because she is breastfeeding a child of any age is considered as sex discrimination.”[10] Discrimination includes the refusal of any kind of service, providing lower standards of service, and so on. The persons who are indulged in businesses like shops, cafes, restaurants, etc., have no right to ask a woman to stop breastfeeding her child and they cannot refuse to serve her. The Equity Act of 2010, also provides that, “A business may ask a breastfeeding woman to leave their premises if the reason for this request is not due to her breastfeeding. And if, the woman claims later, that she faced discrimination because she was breastfeeding, then the business will have to prove that there was no discrimination.” ^[11]

SUGGESTION AND CONCLUSION:

There are a lot of benefits of breast milk. It is really helpful for the development of a nation, because if the future is healthy, so the nation is. Breast milk is easily available for babies and it is wonderfully convenient, wherever the mother is. But breastfeeding is also an issue sometimes. If a mother breastfeeds her child at a public place, then everybody stares at her very strangely. It becomes uncomfortable for the mother, she feels unsafe. People should not stare at her like that, they should give some space to her because babies have some requirements which need to be fulfilled and it is the duty of every mother to fulfill that requirement. The government has made so many laws related to that, but that is not enough, the government should make some provisions, which makes the mother safe and protected. The government should make some legislations, to provide some basic knowledge about breastfeeding to the people of society, so that they can understand, how it is important to breastfeed a baby and so that they cannot make a mother uncomfortable, and can give some space and respect.

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^[1] Breastfeeding, World Health Organization (WHO), https://www.who.int/westernpacific/health-topics/breastfeeding.

^[2] Key breastfeeding Indicators, Centers for Disease Control and Prevention, https://www.cdc.gov/breastfeeding/data/facts.html.

^[3] Are our Babies off to a Healthy Start, World Breastfeeding Trends, https://www.worldbreastfeedingtrends.org/uploads/resources/document/wbti-report-europe-2020.pdf.

^[4] INDIA CONST. art. 42.

^[5] 02, Apr. 2021, Breastfeeding for Mother’s at work and labour laws in India, Paycheck.in, https://paycheck.in/labour-law-india/maternity-and-work/breastfeeding#:~:text=The%20Maternity%20Benefits%20Act%20requires,the%20age%20of%2015%20months.

^[6] .Ibid.

^[7] Supra note v.

^[8] Fact Sheet #73: Break time for Nursing Mother’s under the FLSA,  https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers.

^[9] Ibid.

^[10] Pregnancy and Maternity discrimination, citizens advice, https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/pregnancy-and-maternity-discrimination/.

^[11] Ibid.

[12] the borgen project

BLACK LIVES MATTER MOVEMENT: A GLOBAL ANALYSIS

By Anurag Yadav

Abstract: This article is dealing with Black People’s movement and their life around the world. It discusses in detail the deterioration of Blacks since the period of colonisation to the contemporary world. It also deals with the problems faced by Black people and also the necessary reforms to raise their standard of life as Black People are also humans and should be treated equally without any discrimination on the basis of color especially in the United States of America.

INTRODUCTION: In 2013, three female Black organizers — Alicia Garza, Patrisse Cullors, and Opal Tometi — created a Black-centered political will and movement building project called Black Lives Matter.  Black Lives Matter began with a social media hashtag, #BlackLivesMatter, after the acquittal of George Zimmerman in the shooting death of Trayvon Martin back in 2012.  The movement grew nationally in 2014 after the deaths of Michael Brown in Missouri and Eric Garner in New York.  Since then it has established itself as a worldwide movement, particularly after the death of George Floyd at the hands of police in Minneapolis, MN.  Most recently, #Black Lives Matter has spearheaded demonstrations worldwide protesting police brutality and systematic racism that overwhelmingly affects the Black community.^[1]

The movement engaged in 2013 or became a topic of concern but the deterioration of Blacks by white since the period of Colonisation. They were deprived of their rights for a long period of time and ill-treated by the white as whites considered themselves superior and blacks as inferior to them. Black lives matter is basically a social movement devoted to fighting against racism and anti-black violence especially Police brutality. The main motive of this movement is to improve the position of Blacks in European countries and the United States of America. Activists seek to combat Police brutality and aims to treat the blacks fairly just like the whites and also seek blacks’ participation in the governance system. Martin Luther King Jr. Says “I look to a day when people will not be judged by the color of their skin, but by the content of their character.” It means Martin Luther King Jr. also emphasized that people should be judged by their behavior, work, or activities rather than on the basis of their color of skin.

The Black Lives Matter Movement is fighting to end colorblind racism and the belief that race is no longer significant in today’s society. If race was truly insignificant and black lives mattered, there wouldn’t be racial disparities present in the criminal justice system and other societal factors (Smiley and Fakunle 2016). Race does matter and it needs to be discussed out in the open without the people being in fear of being labeled as a racist. Ignoring that racism is an ongoing problem only exacerbates the issue. The Black Lives Matter Movement is not ignoring colorblind racism. It is a social movement that is seeing race and admitting that it matters.^[2]

HISTORICAL BACKGROUND

1. TRIANGULAR SLAVE TRADE: Triangular slave trade was referred to as the trade between three continents or regions that were Europe, Africa and America in 17th century. When most of the parts are the colony of European countries then the Europeans went to Africa and bought slaves (Black people)  from chiefstman in exchange of goods gifted by Europeans. After then the slaves or black people were branded and packed into the ships for 3 months long voyage to America where they engaged in plantation of cash crops such as sugar, tea and coffee etc. And slaves or blacks were treated very badly by whites like they were beaten up by them and harsh punishment for trifling matters.
2. SOUTH AFRICA: Struggle Against Apartheid: Apartheid is a African word which means separateness. It was a system of racial segregation that governed in South Africa for nearly 50 years. It was a racial discrimination based on skin color i.e. White, Black and Colored. Africa was ruled by the whites which known as white minority rule. So the Government was in the hand of whites so the native black People’s rights were sidelined by brought 148 apartheid laws like all interracial marriages were banned, separate education system for blacks i.e. allowed to study for 13 years, no voting rights available for blacks, Transportation was very poor for blacks, Blacks can’t owned property, Blacks were forbidden to live near whites, Public places were separated for whites and blacks etc. Whites were discriminating against Blacks very badly and Blacks were not allowed to oppose the whites and This crumbled after Nelson Mandela became the President of South Africa in 1994.

MODERN CONTEXT

Blacks were not ill-treated during the phase of colonialization but still, their position is deteriorating and we often see many incidents of ill-treatment by whites. Some of the famous incidents which enrage the Black lives matter are as follows:

1. KILLING OF TRAYVON MARTIN: In 2012 George Zimmerian fatally shot down 17 year old African-American school student Trayvon Martin in Stanford, Florida who was walking back to the father’s fiancée’s house from a nearby convenience store. Zimmerman was injured during the altercation with Martin. He said he shot Martin in self-defence and was not charged at the time. The police said there was no evidence to refute his claim of self-defence, and Florida’s stand your ground law prohibited them from arresting or charging him. After national media focused on the incident, Zimmerman was eventually charged and tried, but a jury acquitted him of second-degree murder and manslaughter in July 2013.
2. DEATH OF GEORGE FLOYD: George Floyd, 46, was arrested in the city of Minneapolis on 25 May for allegedly using counterfeit money to buy a pack of cigarettes. He died after a white police officer kneeled on his neck for nearly nine minutes, while he pleaded that he could not breathe. The officer, Derek Chauvin, 44, has been dismissed from the police department and charged with murder. Three other officers who were on the scene were also sacked and later charged with abetting the crime. Unrest has broken out across the country. Police have used tear gas and force against demonstrators and President Donald Trump has threatened to send in the military.^[3]

PROBLEMS FACED BY BLACKS:

1. POLICE BRUTALITY: Police brutality was the major problem faced by Blacks nowadays. Blacks was very harsh treated by Police official in comparison to Whites. African Americans are arrested for drug abuse at a much higher rate than white.
2. RACIAL DISCRIMINATION: It is still prevalent in countries like U.S.A. and U.K. as whites considered themselves as superior in comparison to Blacks. So they I’ll treated the Blacks.
3. LESS PARTICIPATION OF BLACKS IN GOVERNANCE SYSTEM:  Blacks are very few in number while it is about the participation of Blacks in higher government post.

CONCLUSION AND SOLUTION

After a brief discussion on Black lives matter that how Black lives are deteriorating since the era of Colonisation nowadays. They are always ill-treated by whites like in the colonisation by making them their slaves and nowadays by giving harsh punishment to them in comparison to whites for very trifling crimes or sometimes on the basis of suspicion like we saw in case Trayvon Martin case and George Floyd case. The necessary step can bring to reform or improve the condition of Blacks by defunding of police funds i.e cutoff police funds and use them for social policies beneficial for blacks, by making laws to stop the police brutality against blacks and Government should also focus on increase the participation of Blacks in higher government positions. Overall Black people are also human beings just like whites so obviously, their life matters. In this world everyone’s life is priceless and no one should be discriminated against on the basis of skin color because physical appearances are God’s gift and not at the discretion of humans. So everyone is equal and no one is inferior whether they are whites, Blacks, colored, or whatever creed is. Now People should change their minds to judge the people on the basis of skin color rather than the people should be known by their manners, work and behavior and YES BLACK PEOPLE LIVES MATTER as their life is also priceless just like whites and they are not inferior to anyone

Tags: #Blacks #Whites #Blacklivesmatter #Europe #Africa #America #TrayvonMartin #GeorgeFloyd #Policebrutality #Racial discrimination

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^[1] Available at: https://library.law.howard.edu/civilrightshistory/BLM (Last visited August   17 2021)

^[2] Siscoe, Tanika, “#BlackLivesMatter: This Generation’s Civil Rights Movement” (2016). University Honors Theses. Paper 237. https://doi.org/10.15760/honors.279 (Last visited August 17 2021)

^[3] Available at: https://www.bbc.com/news/world-us-canada-52904593 (Last visited August 17 2021)

[4] Picture: BBC

SECTION 80 CIVIL PROCEDURE CODE AND ARBITRATION ACT: AN ANALYSIS

By Ekta vats

ABSTRACT

This article basically talks about section 80 of CPC,1908 and Arbitration Act, 1996. In introduction part it deals with the question of the fact that why this act is being implemented. Under CPC, this article mainly covers the nature, object of section 80 of CPC and also case laws Under Arbitration act, it mainly talks about the term conciliation and Arbitration and their purpose.

INTRODUCTION^[1]

In general sense, for filling suit no notification is required between individuals but when it comes to govt. or public officer then section 80 of CPC says 2 month notice is required if the suit is filed to govt. or public officer while section 80 of Arbitration act makes it clear that conciliator cannot acts as arbitrator for any party in case of dispute between the parties in judicial proceedings, rather if the parties agrees by mutual understanding then only this section is applied. Here the word Conciliator means the settlement of dispute in an agreeable manner, where a neutral person meets with the parties to dispute and explore how the dispute might be resolved. Hence it is different from arbitration as arbitration is the tribunal selected by the parties to decide disputes and it is binding over the parties.

NATURE OF SECTION 80: CPC

Section 80, CPC is not procedural rather substantive one, hence it contains the rule of procedure which is regarding notice before filing suit. This sections mainly deals which the two types of cases: 

• Suit against government
• Suit against public officer

Case laws:

State of Madras V. Chander Kant^[2], In this case SC observed that notice must be given to government in every cases if the suit is filed against govt. And when it comes to public officer then notice is necessary only when the suit is in respect of any act purporting to be done by the public officer discharge to his duty and not otherwise.

OBJECTIVE OF SECTION 80: CPC^[3]

The objective of section is the advancement of justice and securing of public good by avoidance of unnecessary litigation which purports to save money.

ARBITRATION AND CONCILIATION ACT,1996

Salient features of Arbitration and Conciliator act,1996

The Arbitration and Conciliation Act, 1996 improves upon the previous laws regarding arbitration in India namely the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961.Further, the new statute also covers conciliation which had not been provided for earlier.

The Act of 1996 aims at consolidating the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and rules regarding conciliation.

OBJECTIVE: Arbitration and Conciliator act,1996

• To ensure that rules are laid down for international as well as domestic arbitration and conciliation.
• To ensure that arbitration proceedings are just, fair and effective.
• To ensure that the arbitral tribunal gives reasons for its award given.
• To ensure that the arbitral tribunal acts within its jurisdiction.
• To permit the arbitral tribunal to use methods such as mediation and conciliation during the procedure of arbitration.
• To minimise the supervisory role of courts.
• To ensure that an arbitral award is enforceable as a decree of the court.

SECTION 80: ARBITRATION AND CONCILIATION ACT,1996^[4]

This section provides two types of restrictions on Conciliator. Section 80, Arbitration act provides the restriction on Conciliator that he is not permitted to act as an arbitrator or as a representative or counsel for any party in any arbitral or judicial proceedings. However, the Conciliator may be permitted to act as an arbitrator by mutual agreement between the parties. The Conciliator is also not allowed to appear as a witness on behalf of parties in any arbitral or conciliation proceedings. Although the Conciliator may be prevented by the parties as a witness in any such proceedings only by an agreement between the parties.

PURPOSE: SECTION 80 ARBITRATION ACT, 1996^[5]

Section 80 is necessary in order to provide equal protection and equal status to the parties based on the principle of natural justice as Conciliator being friendly person with the parties knows the weak or strong points of the subject matter of disputes which may cause undue influence on the parties against whom he applies his knowledge.

CONCLUSION

By the analysis of section 80 of Arbitration act and CPC, it can be concluded that both sections ensures justice by avoiding unnecessary litigation. However under section 66 ^[6]of Arbitration act,1996 the Conciliator is not bound by the rules of CPC,1908 and Indian Evidence act, 1872 but this doesn’t mean he can act arbitrarily in the conduct of conciliation proceedings.

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^[1] https://www.scribd.com/document/474535505/Dr-S-C-Tripathi-Arbitration-and-Conciliation-Act-1996-India-with-Alternative-Disputes-Resolution-ADR-Central-Law-Publications-2012-pdf

^[2] (1977) 1 SCC 257

^[3] https://indiankanoon.org/search/?formInput=section%2080%20of%20civil%20procedure%20code

^[4] https://www.casemine.com/search/in/Section%2080%20of%20arbitration%20and%20conciliation

^[5] https://ibclaw.in/arbitration-act-sections/80/

^[6] https://www.scribd.com/document/474535505/Dr-S-C-Tripathi-Arbitration-and-Conciliation-Act-1996-India-with-Alternative-Disputes-Resolution-ADR-Central-Law-Publications-2012-pdf

[7] Picture: law_all.com

Various Modes of Divorce under the Muslim Law

By Chesta Bamel

Abstract:

Family is a set of persons who are non professionally related to each other and the marriage is the thread which connects all those family members, especially children. But, is it possible to break that thread? The answer is yes, is can be, with the help of divorce. The pattern of divorce has developed from time to time, especially in Muslim law. This article is all about the types of divorce under Muslim law.

Introduction:

Under Muslim law, marriage is a contractual relationship between two parties.^[1] All the essentials like offer, acceptance, consent, consideration, etc. are required for a contract under the Muslim law. The main purpose behind such form of marriage is to legalize the sexual intercourse and for the procreation of children. And if any of the parties doesn’t wish to stay in a marriage, then he/she could seek a decree of divorce.

The first thing after hearing the term divorce comes to our mind is that, what is the actual meaning of divorce? Divorce (also known as dissolution of marriage) is a process of terminating a marriage or a marital bond.^[2] It can also be defined as “the process of cancellation of the legal duties and responsibilities of spouses in a marriage.”  There are several modes of divorce under Muslim law, which are discussed below.

Types of Divorce under the Muslim law:

There are basically two modes of divorce under Muslim law, i.e., Divorce and Talaq. The Dissolution of Muslim Marriage Act, 1939, governs the divorce, whereas Talaq is governed by the Muslim Personal Laws.

1. Dissolution of Muslim Marriage Act, 1939:

There are two ways of  dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939 and these are:

• Lian:  It is defined as “the wrong charge of adultery on wife by her husband.” Under this situation, a wife can sue her husband and can obtain a divorce on the ground of false adultery. In case of Zafar Husain V. Unnat-ur-Rahman,^[3] the High Court of Allahabad held that, a wife can file a suit against her husband for the dissolution of marriage and can obtain a decree of divorce on the ground of false charges of adultery against her.
• Faskh:  Section 2 of the Dissolution of Muslim Marriage Act, 1939^[4] states nine grounds that gives a right to wife to get a divorce. And those grounds are:
• When a husband is missing from past 4 years.
• If a husband fails to maintain his wife continuously for 2 years.
• If a husband is not able to perform his marital duties for 3 years.
• If a husband in mentally not stable or suffering from any venereal disease.
• Is a husband is imprisoned for 7 years or more.
• If a husband was impotent at the time of marriage.
• If a person treats his wife badly or treats her with cruelty, then she has a right to approach the court and can claim for judicial separation.
• If a girl is married at the age 15 or less, after the consent of her father or guardian, then, according to Muslim law, she has a right to repudiate such marriage after she attains the age of majority i.e., 18 years. She has a right to get a decree of divorce for the same.
• Wife has a right to obtain a decree of divorce on the grounds recognized by Mohammedan law.^[5]

There are other ways of divorce under Muslim law and these are:

• Divorce by the husband,
• By wife, and
• By Mutual consent.

Divorce by Husband:

There are four modes of divorce by husband under Muslim law:

1. Talaq-ul-Sunnat: It is also known as Talaq-ul-raje. In this type of talaq, the consequences of Talaq don’t become final at one stage. There is still a possibility of compromise between the couple. This mode is recognized by both the Sunnis and Shias. This can be further classified into two forms:
2. Ahasan: To take such divorce, the person has to make a pronouncement of divorce in a single sentence in a state of purity (when a woman is free from menstrual cycle) and the husband must not indulge in any form of sexual intercourse with his wife.
3. Hasan: Hasan is an Arabic word which means good, therefore the divorce through Hasan is considered as good, but it’s less worthy than the one pronounced in Ahasan.
4. Talaq-ul-Biddat: This was introduced by ‘Umayyads’ in order to escape from the strictness of law.^[6] This mode is recognized by the Sunnis. In this mode, the husband has to utter the word Talaq three times in order to get separated, and the partners separated through triple talaq cannot remarry without the formality of woman marrying another man and getting divorced from him, this process is called “Nikah Halala”^[7]

But, in Shayara Bano V. Union of India and Ors.^[8] Case, the practice of triple talaq got unconstitutional, declared by the Honorable Supreme Court of India, because triple talaq was violating the Fundamental Right of Article 14 of the Constitution of India.^[9]

1. Zihar: If a husband compares his wife with his sister or mother, then the husband according to this law, is prohibited to cohabit with the wife for four months, and after the completion of the time period, the wife has a right to go to court to file a decree of judicial separation on the basis of that ground.
2. Ila: It is also called the “vow of continence”.^[10] India doesn’t practice Ila. It is a situation wherein a husband (who is of sound mind and above the age of 18)  swears in the name of God, that he’ll not have sexual intercourse with his wife and leaves her to observe iddat. This process is called Ila.

Divorce by wife:

Talaq-e-tafweez: It was the only way through which a wife could give a divorce to her husband under Muslim law. It is a kind of agreement which is made by either of the party, before or after the marriage, providing that the wife will be privileged to get a decree of divorce from her husband in case, if the husband marries the second wife and if the husband is unable to maintain the wife for a specific time period.

Divorce by mutual consent:

The practice of divorce by mutual consent was not mentioned in Muslim law, it was only available to women only after the enactment of Dissolution of Muslim Marriages Act, 1939.

1. Khula: The meaning of Khula is “to lay down”, which means the husband lays down his rights over wife. It is an arrangement in order to dissolve a communal connection in respect of compensation paid by the wife to her husband.^[11] Is a mutual consent divorce under which a wife has to agree to give some consideration to the husband. In order to get this divorce, there must be an offer by the wife and that offer must be accepted by the husband for consideration.
2. Mubarat: It means “mutual discharge from the marital tie.”^[12] The important essentials to get a divorce by mutual consent is offered from any side, acceptance of that offer which makes the divorce irrevocable and Iddat is necessary. After the acceptance of offer of divorce, it becomes irrevocable from the side of husband, but the wife can revoke it.

Suggestion and conclusion:

“The family is a unit of interacting persons related by ties of marriage, birth or adoption, whose central purpose is to create and maintain a common culture which promotes the physical, mental, emotional and social development of each of its members.” by Duval

Family is necessary for the development of children and also for the development of social ethics. But sometimes relationships doesn’t work between the husband and the wife. Divorce works as a medium for their separation. Divorce is an ancient practice, previously it was considered as not good for the society. But nowadays, this practice has increased because of bad relationships and these relationships are spoiling the lives of couples. Less compatibility could be one of the main reasons for divorce. And when we talk about Muslim law, the right of divorce was given to the husband only, but the time has changed. Now, wife can also seek a decree of dissolution of marriage through various modes which were discussed above.

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^[1] Subodh Asthana, Talaq under Muslim Law, blog ipleaders, https://blog.ipleaders.in/muslim-law-divorce/.

^[2] Kiruthika Dhanpal, Annulment of Marriage under Hindu Law, LegalserviceIndia, http://www.legalservicesindia.com/article/1700/Annulment-of-Marriage-under-Hindu-Law.html. 

^[3] 49 Ind Case 256.

^[4] Dissolution of Muslim Marriage Act, 1939 § 2.

^[5] Subodh Asthana, Talaq under Muslim law, blog ipleaders, https://blog.ipleaders.in/muslim-law-divorce/.

^[6] Ibid

^[7] Dec. 11, 2020, Explain various Modes of Divorce under Muslim Law. When Talaq become Irrevocable? Law Corner, https://lawcorner.in/explain-various-modes-of-divorce-under-muslim-law-when-talaq-become-irrevocable/#Nikkah_Halala.

^[8] (2017) 9SCC 1.

^[9] INDIA CONST. art. 14.

^[10] The concept of divorce under Muslim Law, LegalserviceIndia, https://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html.

^[11] Supra note i

^[12] Supra note x

[13]Picture: DNA India

CUSTODIAL VIOLENCE: AN INFRINGEMENT OF HUMAN RIGHTS

By Chesta Bamel

ABSTRACT:

Violence is one of the biggest elements to kill the humanity.  It can be in any form like a murderer, a thief, sometimes the police. Yes, the police, sometimes does heinous crimes, by misusing their powers, it is called Custodial Violence. Custodial Violence is considered as one of the torturous forms of human rights abuse. It includes all types of physical as well as mental torture.

But, there are some questions arising here that, what is custodial violence?  Is it not a crime in the eyes of law? If yes, then why is it still happening? And are there any provisions which protect people from this? The answers to all these questions are explained in this article.

INTRODUCTION:

“Torture is a wound within the soul which is so painful that, sometimes you’ll almost touch it, but it’s also intangible, that there’s no way to heal it. Torture is despair or fear or hate. It is a desire to destroy and to kill including yourself.”[i]

The term ‘custodial violence’ has not been directly defined under any law of the country. It is basically a combination of two words, i.e., custody and  violence. Here, the term custody means guardianship and it is used in reference when a person is arrested by the official authority in order to find something. The another term violence means, the behavior of inflicting injuries to a person or any property by the use of physical or mental force. The custodial violence together defined as ‘the violence on the judicial and the police custody, involving the victim subject to rape, torture and even death.’[ii] The Police authorities are the custodians of law and it is their duty to protect the rights of people. But sometimes, they degrade their powers they  hold and causes crime. The cases of custodial violence are increasing, which is shown by a report of the National Campaign against torture. The report stated that in 2019, there were around 1,700 people died in heinous custodial violence.[iii]  Now, another question arises here that, how this crime has committed by the police authority or what are the elements of this violence?

ASPECTS OF CUSTODIAL VIOLENCE:

The act of custodial violence is done by the police in order to investigate the matter. The element by which the act is called violence is that, the police, using the wrong way and commit heinous crimes by using physical or mental force. The person who has a power to protect the rights of the citizens, misuses his powers, intentionally imposes the force to confess the matter.

However the legal frameworks like the Constitution of India, doesn’t consider it a crime. Even the National Crime Records Bureau has no record of such crimes. But, the National Human Rights Commission has a record of deaths in police custody, which has rapidly increased from 128 deaths in 2011-2012 to 145 deaths in 2016-2017.[iv]

REASONS BEHIND INCREASING CUSTODIAL VIOLENCE:

There are many reasons which promote custodial violence like, lack of awareness about their rights, lack of proper legislation, ignorance of reality, and so on. Some of the main reasons are explained below:

• LACK OF STRONG LEGISLATION:  This could be one of the main reasons behind increasing such violence. India doesn’t have any proper anti-torture legislation, and because of that, this crime has  increased, under the bridge, where nobody could notice it.
• USE OF EXCESSIVE FORCE:  The use of excessive force can be helpful to the government, as it can be used to target the marginalized communities and can be used to control the people  in any propaganda or any movements.
• INSTITUTIONAL CHALLENGES: India fails to bring a good prison reform and due to this, the prisoners continue to be affected by the poor conditions like lack of minimal safety, overcrowding, and so on.

PROVISIONS PROVIDING PROTECTION AGAINST CUSTODIAL VIOLENCE:

The Constitution of India doesn’t directly explains the custodial violence, but it does give some recognition to the prisoner’s, by giving them certain rights as the citizens of India. Part III of the Constitution of India provides six Fundamental Rights to all the citizens of India. This part includes various articles such as Article 14, 19, 20, 21 and 22. The relevance of some of the articles are given below:

• ARTICLE 20 OF CONSTITUTION OF INDIA:

Article 20 provides a remedy against double jeopardy, which explains that ‘no one can be punished twice for the offense which that person has committed only once.’[v]

• ARTICLE 20(3) OF THE CONSTITUTION OF INDIA:

This article also provides protection to the person from self- incrimination. This provision is formulated to impose a restriction on the powers of the state authorities, so that they cannot violate the rights of the person by misusing their powers.[vi]

• ARTICLE 21 OF THE CONSTITUTION OF INDIA:

Article 21 of the Constitution of India provides the Right to Life and Personal Liberty, which also includes a right against assault and any kind of torture by the state officials.[vii]

The Constitution also provides certain other rights with the help of some landmark case, D.K. Basu V. State of West Bengal is one among  them. The Supreme Court, in this case, held that, “Custodial torture is a naked violation of human dignity. The situation is aggravated when violence occurs within the four walls of a police station by those who are supposed to protect the citizens from such crimes.”[viii] In that case, in total eleven guidelines were issued in order to regulate the procedure of detention.

In case of Sunil Batra II V. Delhi Administration,[ix] the court stated that, ‘handcuffs and irons be speaks a ruthlessness, aggressive to our goal of human dignity and social justice.’ In other words, it can be said that, sometimes the procedure of detention could be against the law of humanity.

OTHER REMEDIES:

Some other provisions are also there in Indian legal system, in order to remove this violence, one of them is mentioned in Section 176(1) of Code of Criminal Procedure,[x] which states that, the magistrate has a power to hold the inquiry of a case, if the person has died on police custody. On that section, the matters related to the disappearance and custodial rape were also added, after the amendment of 2005. The UDHR in its article 5 stated that, “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[xi]

SUGGESTIONS AND CONCLUSUON:

The legal system of India could make a medicine to remove such disease which is hindering the development of the country. In order to remove such crime from the country, the government should make police reforms in order to provide education about the basic rights of the citizens and the government should also make some decent methods of investigation, so that the police do not have to use extra force. There should also be some unrestricted access to any qualified person to the places of detention in order to inspect. CCTV cameras should also be installed in police stations.  

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[i] Manmeet Singh, “Custodial violence in India;legalserviceindia.com. http://www.legalservicesindia.com/article/1893/Custodial-Violence-in-India.html#:~:text=Custodial%20violence%20primarily%20refers%20to%20violence%20in%20police%20custody%20and%20judicial%20custody.&text=Sections%20330%2C%20331%20%26%20348%20of,torture%20to%20extract%20confessions%20etc.   

[ii] Gaurav Gautam, “Custodial violence: an infringement of Human Rights. Legal service India.com https://www.legalserviceindia.com/legal/article-6254-custodial-violence-an-infringement-of-human-rights.html.    

[iii] National Campaign Against Torture: Annual report on torture, 2019.

[iv] Baljeet Kaur, “India’s Silent Acceptance Of Torture Has Made It Public Secret” ,Quill Foundation, 6  September,2018.

[v] INDIA CONST. art. 20.

[vi] INDIA CONST. art. 20 cl. 3.

[vii] INDIA CONST. art. 21.

[viii] D.K. Basu V. State of West Bengal, A.I.R. 1997 SC 610.

[ix] Sunil Batra V. Delhi Administration, A.I.R. 1980 SC 1579.

[x] Code of Criminal Procedure, 1973, §176 cl. 1.

[xi] United Nations, Universal Declaration of Human Rights, 1948 art. 5

[x] Picture: ibailmeout. com