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loyallogic · 6 years ago

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Maneka Gandhi v. Union of India, 1978 AIR 597 1978 SCR (2) 621 1978 SCC (1) 248

This article is written by Akella Poornima, a 2nd-year law student of LL.B 3 yrs, Symbiosis Law School, Pune. This article talks about the landmark case of Maneka Gandhi and its impact on law and society.

Summary of Facts

The petitioner (Maneka Gandhi) was a journalist whose passport was issued on June 1, 1976, under the Passport Act, 1967. Later on July 2nd, 1977, the Regional Passport Officer, New Delhi, had ordered the petitioner to surrender her passport by a letter posted.

On being asked about the reasons for her passport confiscation, The Ministry of External Affairs declined to produce any reasons “in the interest of the general public.”

Therefore, the petitioner had filed a writ petition under Article 32 of the Constitution of India stating the seize of her passport as the violation of her fundamental rights; specifically Article 14 (Right to Equality), Article 19 (Right to Freedom of Speech and Expression) and Article 21 (Right to Life and Liberty) guaranteed by the Constitution of India.

The respondent counterfeited stating that the petitioner was required to be present in connection with the proceedings which was going on, before a Commission of Inquiry.

Identification of Parties (including the name of the judges)

Petitioner: Maneka Gandhi

Respondent: Union Of India And Other

Date Of Judgment: January 25, 1978

Bench: Before M.H. Beg, C.J., Y.V. Chandrachud, V.R. Krishna Iyer, P.N. Bhagwati, N.L. Untwalia, S. Murtaza Fazal Ali and P.S Kailasam.

Issues before the Court

Whether the Fundamental Rights are absolute or conditional and what is the extent of the territory of such Fundamental Rights provided to the citizens by the Constitution of India?

Whether ‘Right to Travel Abroad’ is protected under the umbrella of Article 21.

What is the connection between the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India?

Determining the scope of “Procedure established by Law”.

Whether the provision laid down in Section 10(3)(c) of the Passport Act, 1967 is violative of Fundamental Rights and if it is, whether such legislation is a concrete Law?

Whether the Impugned order of Regional Passport Officer is in contravention of principles of natural justice?

Contentions by Parties on issues

Petitioner’s Contention

The ‘Right to Travel Abroad’ is a derivative of the right provided under ‘personal liberty’ and no citizen can be deprived of this right except according to the procedure prescribed by law. Also, the Passports Act, 1967 does not prescribe any procedure for confiscating or revoking or impounding a passport of its holder. Hence, it is unreasonable and arbitrary.

Further, The Central Government acted in violation of Article 21 of the Constitution of India by not giving an opportunity to the petitioner to be heard. Hence, the true interpretation of Article 21, as well as its nature and protection, are required to be laid down.

Any procedure established by law is required to be free of arbitrariness and must comply with the “principles of natural justice”.

To upkeep the intention of the Constituent Assembly and to give effect to the spirit of our constitution, Fundamental Rights should be read in consonance with each other and in this case, Articles 14, 19 and 21 of the Constitution of India must be read together.

Fundamental rights are entitled to every citizen by virtue of being a human and is guaranteed against being exploited by the state. Hence, these fundamental rights should be wide-ranged and comprehensive to provide optimum protection.

To have a well-ordered and civilized society, the freedom guaranteed to its citizens must be in regulated form and therefore, reasonable restrictions were provided by the constitutional assembly from clauses (2) to (6) in Article 19 of the Constitution of India. But, the laid restrictions do not provide any ground to be executed in this case.

Article 22 confers protection against arrest and detention in certain cases. In this case, the government by confiscating the passport of the petitioner without providing her any reasons for doing so has illegally detained her within the country.

In Kharak Singh v. the State of U.P, it was held that the term “personal liberty” is used in the constitution as a compendium including all the varieties of rights in relation to personal liberty whether or not included in several clauses of Article 19(1).

An essential constituent of Natural Justice is “Audi Alteram Partem” i.e., given a chance to be heard, was not granted to the petitioner.

Passports Act 1967 violates the ‘Right to Life and Liberty’ and hence is ultra virus. The petitioner was restrained from traveling abroad by virtue of the provision in Section 10(3)(c) of the Act of 1967.

Respondents contentions

The Attorney General of India argued that the ‘Right to Travel Abroad’ was never covered under any clauses of article 19(1) and hence, Article 19 is independent of proving the reasonableness of the actions taken by the Central Government.

The Passport Law was not made to blow away the Fundamental Rights in any manner. Also, the Government should not be compelled to state its grounds for seizing or impounding someone’s passport for the public good and national safety. Therefore, the law should not be struck down even if it overflowed Article 19.

Further, the petitioner was required to appear before a committee for an inquiry and hence, her passport was impounded.

Reiterating the principle laid down in A.K Gopalan, the respondent contended that the word law under Article 21 cannot be comprehended in the light fundamental rules of natural justice.

Further, the principles of natural justice are vague and ambiguous. Therefore, the constitution should not refer to such vague and ambiguous provisions as a part of it.

Article 21 is very wide and it also contains in itself, the provisions of Articles 14 & 19. However, any law can only be termed unconstitutional to Article 21 when it directly infringes Article 14 & 19. Hence, passport law is not unconstitutional.

Article 21 in its language contains “procedure established by law” & such procedure need not pass the test of reasonability.

The constitutional makers while drafting this constitution had debated at length on American “due process of law” & British “procedure established by law”. The conspicuous absence of the due process of law from the Constitutional provisions reflects the mind of the framers of this constitution. The mind and spirit of the framers must be protected and respected.

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Difference between “procedure established by law” and “due process of law”

A.K. Gopalan’s case has been the primer case where the Supreme Court declined to consider “procedure established by law” in consonance with “due process of law”. But, in 1978 this case was turned down in Maneka Gandhi where the Supreme Court itself stated the act of confiscating her passport as arbitrary. Justice Kania referring to A.K Gopalan had said that the term “due process” mentioned in the article had limited the powers of the judiciary, to interpret it further and seek its reasonableness. But, through Maneka Gandhi a new precedent was set by broadening the vision of these two phrases.

“Procedure established by Law”

Inlay man’s terms it is defined as a law that is duly enacted by the legislature to be held valid and be mandated to be followed, provided if it affirms correct procedure. This doctrine has the power to withdraw from any person of his life or personal liberty according to the procedure established by law. In short, it means that any law duly enacted is valid even if it is contrary to the principles of justice and equity.

“Due Process of Law”

It is a doctrine that requires to check the efficiency of it as well as fairness and non-arbitrariness. Apex court can declare any law null and void if it is not just, fair and arbitrary. This doctrine safeguards all kinds of individual rights.

Judgment (Ratio and Obiter)

The judgment expanded the scope of Article 21 exponentially and became a landmark case in the legal world. The majority judgment was written by Justice Bhagwati, Untwalia & Fazl Ali JJ. while Chandrachud, Iyer & Beg (CJ) wrote separate but concurring statements.

It was held that:

Before the enactment of the Passport Act 1967, there was no law regulating the passport whenever any person wanted to leave his native place and settle abroad. Also, the executives were entirely discretionary while issuing the passports in an unguided and unchallenged manner. In Satwant Singh Sawhney v. D Ramarathnam, the SC stated that – “personal liberty” in its ambit, also includes the right of locomotion and travel abroad. Hence, no person can be deprived of such rights, except through procedures established by law. Since the State had not made any law regarding the regulation or prohibiting the rights of a person in such a case, the confiscation of the petitioner’s passport is in violation of Article 21 and its grounds being unchallenged and arbitrary, it is also violative of Article 14.

Further, clause (c) of section 10(3) of the Passports Act, 1967 provides that when the state finds it necessary to seize the passport or do any such action in the interests of sovereignty and integrity of the nation, its security, its friendly relations with foreign countries, or for the interests of the general public, the authority is required to record in writing the reason of such act and on-demand furnish a copy of that record to the holder of the passport.

The Central Government never did disclose any reasons for impounding the petitioner’s passport rather she was told that the act was done in “the interests of the general public” whereas it was found out that her presence was felt required by the respondents for the proceedings before a commission of inquiry. The reason was given explicit that it was not really necessarily done in the public interests and no ordinary person would understand the reasons for not disclosing this information or the grounds of her passport confiscation.

“The fundamental rights conferred in Part III of the Constitution are not distinctive nor mutually exclusive.” Any law depriving a person of his personal liberty has to stand a test of one or more of the fundamental rights conferred under Article 19. When referring to Article 14, “ex-hypothesi” must be tested. The concept of reasonableness must be projected in the procedure.

The phrase used in Article 21 is “procedure established by law” instead of “due process of law” which is said to have procedures that are free from arbitrariness and irrationality.

There is a clear infringement of the basic ingredient of principles of natural justice i.e., audi alteram partem and hence, it cannot be condemned as unfair and unjust even when a statute is silent on it.

Section 10(3)(c) of the Passports Act 1967, is not violative of any fundamental rights, especially Article 14. In the present case, the petitioner is not discriminated in any manner under Article 14 because the statute provided

unrestricted powers to the authorities. the ground of “in the interests of the general public” is not vague and undefined, rather it is protected by certain guidelines which can be borrowed from Article 19.

It is true that fundamental rights are sought in case of violation of any rights of an individual and when the State had violated it. But that does not mean, Right to Freedom of Speech and Expression is exercisable only in India and not outside. Merely because the state’s action is restricted to its territory, it does not mean that Fundamental Rights are also restricted in a similar manner.

It is possible that certain rights related to human values are protected by fundamental rights even if it is not explicitly written in our Constitution. For example, Freedom of the press is covered under Article 19(1)(a) even though it is not specifically mentioned there.

The right to go abroad is not a part of the Right to Free Speech and Expression as both have different natures and characters.

A.K Gopalan was overruled stating that there is a unique relationship between the provisions of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Earlier in Gopalan, the majority held that these provisions in itself are mutually exclusive. Therefore, to correct its earlier mistake the court held that these provisions are not mutually exclusive and are dependent on each other.

Critical Analysis of the Judgement

Overruling A.K Gopalan’s decision was appreciated nationwide and this case had become a landmark case in history since it broadened the scope of fundamental rights.

The respondent’s contention that any law is valid and legit until it is repealed was highly criticized by judges.

Also, by providing a liberal interpretation to Maneka Gandhi, the courts had set a benchmark for coming generations to seek their basic rights whether or not explicitly mentioned under part III of the constitution.

Today, the courts have successfully interpreted different cases in order to establish socio-economic and cultural right under the umbrella of Article 21 such as – Right to Clean Air, Right to Clean Water, Right to freedom from Noise Pollution, Speedy Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment, etc.as a part of Right to Life & Personal liberty.

The judgment opened new dimensions in the judicial activism and PIL’s were appreciated and judges took interests in liberal interpretation wherever it was needed in the prevailing justice.

Conclusion

After this case, the Supreme court became the watchdog to protect the essence of the constitution and safeguard the intention of the constitutional assembly who made it. The majority of judges opined that any legislation or section should be just, fair and reasonable and in its absence even the established or prevailed law can be considered arbitrary.

The judges mandated that any law which deprives a person of his personal liberty should stand the test of Article 21, 14 as well as 19 of the constitution. Also, principles of natural justice are sheltered under article 21 and therefore, no person is deprived of his voice to be heard inside the court. Further, to declare any state action or legislation invalid, the “golden triangle” i.e, articles 14, 19 and 21 must be invoked.

References

https://lawyersnotes.com/blog/maneka-gandhi-vs-union-of-india/

http://lawtimesjournal.in/maneka-gandhi-vs-union-of-india/

Scc online

https://indiankanoon.org/doc/1857950/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

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loyallogic · 6 years ago

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Legal Backdrop of Prison Reforms

This article is written by Saloni Maheshwari and Surbhi Agrawal, 5th year BA.LLB students from DES Navalmal Firodia Law College, Fergusson Campus, Pune.

“It is not the prisoners that need reformation, it is the prisons” – Oscar Wilde

Introduction

Prison is where the criminal equity framework put its whole expectations. The correctional mechanism, if falls flat will make the entire criminal methodology futile. The regulation behind discipline for a crime has been changed considerably by the advancement of new human rights statutes. The idea of transformation has turned into the watchword for prison organization. Human rights statutes advocate that no crime ought to be punished in a pitiless, corrupting or in a cruel way. Despite what might be expected, it is held that any discipline that adds up to remorseless, humiliating or brutal ought to be dealt with as an offence by itself. The change caused to the criminal equity framework and its correctional mechanism has been embraced around the world and question of incorporation of the same in Indian scenario remains unanswered.

Internationally, it turns into an all-round acknowledged decision that the correctional mechanism in criminal equity organization ought to agree to reformative arrangements. It is likewise announced that all prisoners might be approached with deference because of their innate respect and incentive as human beings. There is an arrangement of rights distinguished by the international legal framework to spare the human poise and estimation of prisoners and thereby the reformative topic of rectification. It is additionally emphatically contended that the group can never endure a plan of adjustment that does not keep up an association with the evilness of the crime done. This discipline dependably keeps up a subjective point of view. The privileges of the imprisoned individuals must be perused regardless of this observation. It is genuinely implied that there can be changed disciplines for the same offence; however, one ought not to be dealt awfully while the sentence once pronounced by the Court goes on. In this domain, the rights ensured under the international legal framework are to be investigated and are to be incorporated in India.

Concept of Prison

Prisons serve as an arm of criminal justice system to punish the deviant behavior of a miscreant.

John Locke, the great English political theorist of seventeenth-century expressed that men were basically good, but laws were still needed to keep down ‘the few desperate men in society’.

The Online Oxford English dictionary defines prison as, “A building to which people are legally committed as a punishment for a crime or while awaiting trial”[1]. In our country “Prison” falls under State subject in List II of the Seventh Schedule to the Constitution of India. The administration of Prisons falls under the ambit the State Governments and is administered by the Prisons Act, 1894 and the Prison Manual of the respective State Governments. Thus, States have the preliminary responsibility and authority to change the current prison laws, rules and regulations.

Importance of Prisons

The presence of prisons in our general public is an antiquated wonder since Vedic period where the counter social components were kept in a place recognized by the rulers to secure the general public against wrongdoing. Prisons’ were considered as a ‘Place of Captives’, the place prisoners were kept for retribution and discipline. At first, there was a conviction that detachment and custodial measures would change the guilty parties but gradually it is being substituted by the advanced idea of social defence. Various issues concerning prisons are recognized by government and specialists from time to time.

Justice V.R. Krishna Iyer has rightly observed: “In our world prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift-wood juveniles to heroic dissenters”[2]

Today prisons serve mainly three purposes, which may be described as custodial, coercive and correctional. Prison as a place of correction historically is developing in conception.

Earlier prisons served only the custodial function, where an alleged offender could be kept in lawful custody until he could be tried and if found guilty, punished.

The Digest of Justinian, in Roman law, established the custodial principle with the statement that “prison is for confinement, not for punishment”[3]. The coercive function means that imprisonment may be used to command a person to comply with an order made by the Court of law, whether civil or criminal; if he complies, he is released.

The purpose of prison can be clearly said to be as that of the imposition of punishment, rehabilitation of the prisoners and protection of prisoners.

Background

The cutting-edge prison in India began with the Minute by TB Macaulay in 1835. A committee to be specific Prison Discipline Committee was delegated, which presented its report in 1838. The committee prescribed expanded thoroughness of treatment while dismissing every single philanthropic need and changes for the prisoners. Following the proposals of the Macaulay Committee between 1836-1838, Central Prisons were developed from 1846.

The contemporary Prison organization in India is consequently a heritage of British run the show. It is in view of the thought that the best criminal code can be of little use to a group unless there is great hardware for the curse of disciplines. In 1864, the Second Commission of Inquiry into Jail Management and Discipline made comparative suggestions as to the 1836 Committee. In addition, this Commission made a few recommendations with respect to convenience for prisoners, improvement in diet, clothing, bedding and therapeutic care.

In 1888, the Fourth Jail Commission was designated. On the premise of its suggestion, a consolidated prison bill was formulated. Arrangements with respect to the jail offences and discipline were exceptionally analyzed by a meeting of specialists on Jail Administration. In 1894, the draft charge moved toward becoming law with the consent of the Governor General of India.

Prisons Act,1894

The Prisons Act, 1894 is the only consolidated framework with regards to jail management and administration which operates across all parts of India. This is an antediluvian act which operates without any amends to it. This act, however, failed to resolve certain issues. The loopholes in the act were subsequently addressed in the report of the Indian Jail Committee 1919-1920 pertaining to the rehabilitation and reformation of offenders, which were recognized to be as the key objective of prison administrator.

Indian Jail Reform Committee

In the year 1919-20, the Indian jail reform committee, appointed to suggest prison reforms was headed by Sir Alexander Cardew. The committee took a stand on an international perspective after observing the condition of prison across the globe and laid down an inference that prisons should not only have a deterrent effect but also have a reformative approach. The committee emphasized the need for a reformative approach to prison inmates and dejected the use of corporal punishment in jails. It suggested the utilization of an inmate in productive activities. The Committee underlined the need for aftercare programs for the released prisoners for the purpose of rehabilitation.[4]

As a measure of prison reform, the Jail Committee further suggested that the maximum intake capacity of each jail should be set, depending on its shape and size. In the meantime, there was an outcry for retention of solitary confinement as a method of punishment.

Government of India Act, 1935

The Government of India Act,1935 is an important legislative framework which resulted in the transfer of the subject of jails from the Center list to that under the control and administration of provincial governments. This further condensed the possibility of a uniform prison policy at a national level. Thereafter the States started having their own prison policies, rules and procedure.

The Reckless Report, 1951

The Government of India invited the United Nations expert on correctional work, Dr. Reckless in the year 1951, to embark a study on the prison administration and to recommend policy reforms. He made a plea of transforming jails into reformation centers through this report titled “Jail Administration in India”. Furthermore, he also laid emphasis on modification to be made in the outdated manuals.

International Legislations

The Universal Declaration of Human Rights

The General Assembly of the United Nations started a movement in the form of the Universal Declaration of human rights in the year 1948. It lays down principles of administration of justice. Following are few important provisions which have been embedded in the draft-

(1) No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[5]

(2) Everyone has the right to life, liberty and security of person.[6]

(3) No one shall be subjected to arbitrary arrest, detention or exile.[7]

(4) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.[8]

The International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR)remains the core international treaty on the protection of the rights of prisoners. India ratified the Covenant in 1979 and is bound to incorporate its provisions into domestic law and state practice.[9]

The International Covenant on Economic, Social and Cultural Rights (ICESR)

The International Covenant on Economic, Social and Cultural Rights (ICESR) states that prisoners have a right to the highest attainable standard of physical and mental health.[10] Apart from civil and political rights, the so called second-generation economic and social human rights as set down in the ICESR also apply to the prisoners.

Declaration on Protection from Torture, 1975

The UN General Assembly by consensus adopted a declaration on the protection of torture. This declaration acts in tandem with the human rights principles of an individual and protects that person from any kind of torture, or inhuman and cruel behaviour.[11]

General UN directives

The UN standard Minimum Rule also made it mandatory to provide separate residence for young and child prisoners from the adult prisoners. Subsequent UN directives have been the Basic Principles for the Treatment of Prisoners (United Nations 1990)[12] for the Protection of All Persons under Any Form of Detention or Imprisonment (United Nations 1988)[13]

Convention against Torture and other Cruel, Inhuman or Degrading Treatment

The UN Assembly adopted, a document called Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment wherein the responsibility is shouldered on the state to take steps for effective judicial, legislative and administrative methods. Further, it clearly lays down the rules for interrogation and certain other instructions have been enumerated.[14]Though this is a concrete piece of legislation but unfortunately India has yet not ratified to it.

International Best Practices[15]

India is no less, no way behind in promoting prison reforms and incorporating them into practice but some practices which are laudable and can be easily adopted by India are mentioned under-

United States of America

TeleMedicine Technology

Tele-medicine is a practice where two health professionals, or a health professional and a patient, are in long-distance communication with each other. This may be helpful in cases where it is difficult to transport prisoners, or in far-away rural prisons, or in difficult-to-reach places. Tele-medicine can provide improved security, personal safety, cost savings and access to specialists, which might otherwise be impossible.

United Kingdom

Prison and Probation Ombudsman (Grievance Redressal)

A specialized inspection of prisons takes place every year in the UK. A routine Government follow-up takes place every year. This makes for greater accountability and increased system transparency.

Singapore

Yellow Ribbon Project (Community Involvement)

The goal of the yellow ribbon project is to reintegrate and rehabilitate prisoners. It involves prisoners voluntarily giving up all gang associations (including having tattoos removed). Part of the challenge prisoners faces after being released is that of the social stigma of having been in prison. Its objectives are:

(a) Creating awareness of the need to give ex-offenders a second chance;

(b) Generating acceptance of ex-offenders and their families in the community;

Indian Committees and Acts

During the post-independence era various committees and acts have been constituted to tackle the problems relating to prison administration in India. The following entails brief insight into all the important committees and acts.

All India Jail Manual Committee

The Government of India in the year 1957 accorded its assent to appoint All India jail manual committee to prepare a model prison manual. The committee laid down its submission in the year 1960. The report made forceful pleas for formulating a uniform policy and latest methods relating to jail administration, probation, aftercare, juvenile and remand homes, certified and reformatory school, borstal schools and protective homes, suppression of immoral traffic, etc. Moreover, the report suggested amendments in the century old Prisons Act of 1894 to provide a legal base for correctional work.

Model Prison Manual

The committee prepared the Model prison manual and presented it to the Government of India in 1960 for its implementation. The manual is the basis on which the current Indian prison management is regulated. The Model prison manual paved way for the Ministry of home affairs, Government of India in the year 1972, to appoint a working group on prisons.

Working Group on Prisons

In 1972, the Ministry of Home Affairs, Government of India, appointed a Working Group on Prisons which presented its report in 1973[16]. This Working Group brought out in its report the need for a National Policy on Prisons. Its salient features are as under: ��

(1) To make effective use of alternatives to imprisonment as a measure of sentencing policy.

(2) Emphasized the desirability of proper training of prison personnel and improvement in their service conditions.

(3) To classify and treat the offenders scientifically and laid down principles of follow-up and after-care procedures.

(4) That the development of prisons and the correctional administration should no longer remain divorced from the national development process and the prison administration should be treated as an integral part of the social defence components of the national planning process.

(5) Identified an order of priority for the development of prison administration.

(6) The certain aspects of a prison administration are included in the five-year Plans.

(7) An amendment to the Constitution be brought to include the subject of prisons and allied institutions in the Concurrent List, the enactment of suitable prison legislation by the Centre and the States, and the revision of State Prison Manuals be undertaken.

Mulla Committee

In 1980, the Government of India set-up a Committee on Jail Reform, under the chairmanship of Justice AN. Mulla. The basic objective of the Committee was to review the laws, rules and regulations keeping in view the overall objective of protecting society and rehabilitating offenders. The Mulla Committee submitted its report in 1983[17]. The All India Jail Committee focuses on bringing equilibrium between States and Union territories on the legal framework concerning prison administration.

The Committee suggested setting up of a National Prison Commission as an enduring body to bring about modernization of prisons in India. The Committee also made a proposition that the existing dichotomy of prison administration at Union and State level should be removed. It recommended a total ban on the atrocious practice of associating together juvenile offenders with hardened criminals in prisons. The Committee also recommended separation of mentally disturbed prisoners and their placement in mental asylums. Another recommendation of the Jail Committee was a vis-à-vis classification of prisoners on the scientific and rational basis[18].

Some of the prominent recommendations of the Mulla Committee are:

The condition of prisons should be improved by making adequate arrangements for food, clothing, sanitation, ventilation etc.

The prison staff should be properly trained and organized into different cadres. It would be advisable to constitute an All India Service called the Indian Prisons &Correctional Service for recruitment of Prison officials.

After-care, rehabilitation and probation should constitute an integral part of prison service. Unfortunately, probation law is not being properly implemented in the country.

The media and public men should be allowed to visit prisons and allied correctional institutions periodically so that public may have first-hand information about conditions inside prisons and be willing to co-operate with prison officials in rehabilitation work.

Lodging of undertrials in jail should be reduced to bare minimum and they should be kept separate from the convicted prisoners. Since under trials constitute a sizable portion of the prison population, their number can be reduced by speedy trials and liberalization of bail provisions.

The Government should make an Endeavour to provide adequate resources and funds for prison reforms [19].

Krishna Iyer Committee

The Government of India in the year 1987 appointed the Krishna Iyer committee to carry out a study on plight of the women prisoners in India. It has recommended the induction of more women in the police force with a view of their special role in controlling women and child offenders. The committee submitted its report in the year 1988 to the Government of India.

Subsequent Developments

The Supreme Court in Ramamurthy vs. State of Karnataka[20] laid directions to bring about a unified national consolidated framework on prison laws and to prepare a draft model prison manual, subsequently a committee was set up in the Bureau of Police Research and Development (BPR&D).

In 1999, a Draft Model Prisons Management Bill was circulated to replace the Prisons Act, 1894 by the Government of India but the bill is still limping to find its place.

The All India Committee on Jail Reforms (1980-1983), the Supreme Court of India and the Committee of empowerment of women (2001-2002) have all pressed on the need for a comprehensive revision of the prison laws but the process of revision and implementation have a remorseful future.

Prisoners Rights

Constitutional Provisions

The rights of all human beings are safeguarded by our constitution. Ironically, the prisoners are treated differently; not par with non- prisoners and their rights are denied and neglected.

This is a major concern which needs to be addressed to protect the edifice of the constitutional provision. The Supreme Court in its various judgments has declared prisoners as a natural as well as a legal person. It is the responsibility of the Courts to protect these détentes from torture, harassment and provide them with justice.

(a) Right to life and personal liberty

Right to life is much more than mere physical existence. Furthermore, the Supreme Court has widened its horizon while interpreting Article 21 of the Constitution by the inclusion of right to life with human dignity. Mere animal existence is not the criteria. The Supreme Court held that right to life is one of the basic human rights, guaranteed to every person by Article 21 and not even the State has authority to violate it.

(b) Right to health and medical treatment

The Supreme Court in various cases has declared the right to medical care comes under the ambit of Article 21 of the Constitution.

It imposes an obligation on the state to preserve life. This right is a basic human right. But we still find instances where the prisoners’ health is neglected, and no proper healthcare facilities are accorded. This can be clearly termed as a violation of one’s fundamental rights by the state. The state has a moral duty cast upon it to preserve and protect the life of the ailing convicts.

The Supreme Court has considered the right to a speedy trial as one of the essential ingredients of Article 21 of the Constitution. Delay in the disposal of cases is a denial of justice, so the Court is expected to adopt necessary steps for expeditious trial and quick disposal of cases.[21] The Supreme Court has stated guidelines for affecting the right to a speedy trial but unfortunately, it has ignored the time frame for the trial of these offences. The right to a speedy trial can be demanded by the accused at any time during proceeding i.e. investigation, inquiry, and appeal and so on. The time limit for the offence changes with various circumstances. The Court comes to conclusion in the interest of natural justice that when the right to speedy trial of an accused has been infringed the charges of the conviction shall be quashed.[22]

The unreasonable detention of the prisoners is clearly violative of Article of 21. The constitutional guarantee of speedy trial is an important safeguard to prevent undue and oppressive incarceration prior to trial; to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delays will impair the ability of an accused to defend him.

(d) Right to free legal aid

Right to free legal aid is one of the facets of Article 21 of the constitution which casts a duty upon a state to provide legal recourse. The State is under a constitutional mandate to provide legal redressal to the ones who are unable to afford it. The state cannot sway away from its liability on the ground of unavailability of funds and deformities in administration.

The only pre-condition for providing free legal aid is that the accused who is charged with an offence, the conviction of that being imprisonment, and the social need requires that he been given free legal aid. But there may be some cases such as economic offences, prostitution, where social justice requires that the accused must not be given free legal aid. The prisoners should also have access to legal justice without any interference from the prison authority. Any arbitrary procedure to regulate the interviews between the prisoners and the legal advisor is completely unjustified. Regarding the right of free legal aid, Justice Krishna Iyer declared that “this is the State’s duty and not Government’s charity”. If a prisoner is unable to exercise his constitutional and statutory right of appeal including Special Leave to Appeal for want of legal assistance, the Court will grant such right to him under Article 142, read with Articles 21 and 39A of the Constitution.[23]

(e) Right to reasonable wages for work

The notion behind the payment of reasonable wages to the prisoners for the work is that it will create a healing effect on the minds of the prisoners. It is not only the legal right of a workman to have wages for the work, but it is a social imperative and an ethical compulsion.

The wages should be equitable to fulfil the objective of rehabilitation of the prisoner and the compensation to be paid to the victim. Fair and equitable wages if not paid would result in bonded labour and further would violate the fundamental right enumerated in Article 23 of the Constitution. In order to decide the quantum of wages to be paid to the prisoners, the state should constitute a wage fixation body and allow suggestions and recommendations from that body.

(f) Directive Principles of State Policy

Article 39A of the Constitution of India deals with the obligation of the State to provide free Legal Aid to such accused prisoners both in the prison and outside, as are unable to engage a lawyer due to lack of means to defend themselves in the Court for the criminal charges brought against them.

Other Rights

Right to Bail

The bail ought to be allowed to the persons when there is no sensible worry with respect to the accused that he will flee and will evade the appearance under the steady gaze of the Court. Bail can be an extremely helpful apparatus for mingling a detainee. In addition, the bail candidate should have the capacity to set up his protection more productively than one who stays in jail custody. This advances the social and open equity as well as maintains a strategic distance from the extensive open costs in keeping the under trial in custody, where no threat or unsettling influence or vanishing on the substance of the record.

Right to basic amenities

Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served and accommodation of suitable nature.

Right against Arbitrary prison punishment

In the Right against Arbitrary prison punishment, the prisoner has a right to entitlement in case of disciplinary violation to have precise information as to the nature of violation of prisons Act and Rules, to be heard in defense, to communication of the decision of disciplinary proceedings and to appeal to the Inspector General of Prisons as provided in the rules under the Act.

Right to leave and special leave (Furlough and Parole)

Right to leave is matter of right of the prisoners granted only after a condition prescribed in various manuals, acts etc. Ironically there is no national framework which prescribes the number of days for which the parole or furlough is to be granted. The grant of parole is discretionary in nature and depends on the facts and circumstances of each case.

Special Treatment

The law extends its protection to the most vulnerable section of the society, i.e. the youth and women offenders who are in actual need of security, safety.

Females

The element of security and safety in the lockups, prisons have to be given it due accord while considering the female suspects.

Further, the Court directed that the concerned prison authorities should take into consideration before sending the prisoner to jail that all reasonable facilities of ensuring pre- natal and post-natal care for the mother and the child are provided.

The children of the women prisoners should be provided with facilities of health care, education and recreation. Facilities such as crèches, foster homes can add to the better care and custody of the child.

Youth Offenders

The youth offenders if kept with the adult offenders will impact the mindset of these youth.

It is very important to keep in mind, is that the younger the offender the greater the care he needs and the more tactful and sympathetic has to be his handlings.[24] The young offenders should be sent to borstal school where the young offenders are endowed with opportunities of educational and vocational training to reform them. These schools can be precisely described as “Reformative schools”. The facility of foster care also has to be given an impetus to enhance the reformation in the youth offender.

Approaches

Socialistic Approach

The prisoners are human beings like us. The society still looks down upon them. They are socially outcast from every sphere of society. It is not only the prisoners’ reformation which is required but most importantly it is the mindset of the society which needs reformation. If the society neglects it then it fails to accord equal status to human being irrespective of various terms. Society, as an important institution, endeavours the development of an individual. The aftercare programmes will give an impetus to the growth and development of an offender. Community basis participation will help the offender to interact with the community and to pace his degree of rehabilitation and reformation.

Educational Approach

The mechanism for achieving this revolution in approach to prisons is to confer responsibility for education and freedom to design their own curriculum. Education will be a key part of prison life. The educational approach will not only help the illiterate ones but also the literate ones. Incarceration should not act as a hindrance in the overall development of the personality of the offender. The prisoners should be provided with ample opportunities to pursue his education and furthermore if any training or special teaching is required for pursuing; the same should be made available. The Universities should collaborate with prison authorities and can start ahead with distance learning programs, degree courses, etc. so that the prisoners do not feel differentiated from being a citizen who has right to education.

Reformative and Therapeutic Approach

India still holds and believes in its spirit, the reformative theory of punishment. The reformative approach is a holistic one and focuses on reforming the individual through various channels. This approach has been devised to reform the individuals to repent for a crime committed and it works as a device of self- realization of one’s mistake. Furthermore, the therapeutic approach deals with the offender being under the continuous supervision and care of the counsellor or the psychoanalyst. In this way, the prisoner will share his grievances and his behaviour will be understood in a clear manner. The alternative of meditation can help achieve mental peace to the prisoners, it can be sought to construe as a channel of relief for them. This approach merely revolves around the concept of mental study of the human mind. The concept of psychological analysis is briefly discussed as under

Psychoanalysis is a school of psychology founded by Sigmund Freud. This school of thought emphasized the influence of the unconscious mind on behaviour.

Freud believed that the human mind was composed of three elements:

The id – The id consists of primal urges

The ego – The ego is the component of personality charged with dealing with reality.

The superego – The superego is the part of personality that holds all the ideals and values we internalize from our parents and culture.

Freud believed that the interaction of these three elements was what led to all the complex human behaviors. Freud’s school of thought was enormously influential, but also generated considerable debate. This controversy existed not only in his time but also in modern discussions of Freud’s theories.[25]

Recreational Approach

Recreational activities should be given equal impetus. These activities include outdoor activities like sports, cultural programs, handling prison industries. The prisoners who are interested in developing a career through these activities should be supported. These activities not only would develop prisoners’ physique but would refresh his mental state and would serve as a break from the tiresome work and would imbibe in him a spirit of sportsmanship. The inclination towards the literature should be given due consideration by making available various books on self-help, motivation, novels, etc. The library should be available 24*7 to the prisoners. The most innovative is the idea of setting up souvenir shops and handling the prison business; this would not only serve as an activity but would also generate income for the prison.

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Alternatives to Punishment

Parole

Parole is thus a grant of partial liberty or lessening of restrictions to a convicted prisoner, but released on parole does not, in any way, change the status of the prisoner. Parole is a penal device which seeks to humanize prison justice. It enables the prisoners to return to the outside world on certain conditions. The main objects of the parole as stated in the Model Prison Manual are:

a) To enable the inmate to maintain continuity with his family life and deal with family matters

b) To save the inmate from the evil effects of continuous prison life.

c) To enable the inmate to retain self-confidence and active interest in life.[26]

Fine

Fines are a common punishment for an assortment of violations, particularly for less serious offences committed by first-time offenders. Offences that are normally rebuffed with fines incorporate minor drug possession, fish and game violations, traffic violations, first-time drunken driving cases. In more serious offences or where the litigant has a criminal record, many judges combine fine with other punishment, for example, detainment, community service, suspended sentence and probation.

Suspended Sentence

As another option to detainment, a judge can issue a suspended sentence where he or she either forgoes passing on a sentence or settles on a sentence yet avoids doing it. This is by and large saved for less serious offences or first-time offenders. Suspended sentences can be unconditional or conditional.

Probation

Another alternative to prison is probation. Like a suspended sentence, probation discharges a defendant back into the community, but he or she does not enjoy the same level of freedom as a normal citizen. Courts normally allow probation for first-time or low-risk offenders. Statutes decide when probation is conceivable, yet it is up to the condemning judge to decide if to really allow probation.

Probation accompanies conditions that confine conduct, and if the probationer disregards one of those conditions, the Court may repudiate or change the probation. Courts have a great deal of watchfulness while probation conditions.

Restitution

Restitution is like a fine, but the payment made by the culprit goes to the victims of that crime rather than to the Court or municipality. This was suggested in the 78th Law Commission Report[27]. Judges usually order restitution in cases where victims endured some sort of monetary loss due to the crime committed. The payment is intended to make the victims whole and restore them financially to the point they were at prior to the commission of the crime.

For example, a litigant who harmed the victim in a fight might be asked to pay the victim for his medicinal expenses.

Community Service

Judges can condemn litigants to perform unpaid community work called “community service” to compensate an obligation to society for having committed the offense. The litigant might be required to perform community service notwithstanding getting some other type of punishment, for example, probation, a fine, or compensation.

Diversion

Certain sort of offences and offenders may qualify for programs that bring about having charges rejected if the respondent completes indicated conditions. It can be called diversion or deferred adjudication; these projects take out the respondent from the common procedure of indictment so he or she can complete certain conditions. When he or she is done, either the prosecutor or the Court expels the charges.

The objective of diversion programs is to permit a litigant a chance to show that they are fit to act responsibly, and this method is commonly used for drug offences or first-time offenders. Normally the conditions imposed include counseling or probation.

Problems

The Supreme Court, in its landmark decision in Ramamurthy v. State of Karnataka[28] has identified nine major problems which need immediate attention for implementing prison reforms.

The Court observed that the present prison system is affected with major problems of-

Rampant Overcrowding

India’s prisons are overcrowded with an occupancy ratio of 14% more than the capacity of the prisons. Due to severe overcrowding in these prisons, the segregation of serious criminals and minor offenders has turned out to be difficult, which can, in turn, cause bad influence over minor offenders. They might turn into professional offenders due to their continuous contact with hard criminals. Prisons in India have a sanctioned strength of 49030 of prison staff at various ranks, of which, the present staff strength is around 40000.

Delay in Trials

According to what statistics represent, 67% of the people in Indian jails are undertrials. Under trials refer to those people who are detained in jail amid trial, investigation or inquiry yet not indicted of any crime in the Court of law. The share of the jail populace anticipating trial or sentencing in India is commendably high when compared to other countries.

Torture and Ill-treatment

The prisoners including the undertrials are forced to do severe labour without any remuneration and treated with utmost torture and are made to do rigorous work which is barred by law. There has been a continuous rise in the custodial deaths due to torture and ill-treatment towards prisoners in jail. Women prisoners are more vulnerable to abuse.

Severe staff crunch

While 33% of the aggregate prerequisite of jail authorities still lies vacant, right around 36% of opening for regulating officers is yet unfulfilled. The ratio between the prison staff and the prison population is approximately 1:7. It means only one prison officer is available for 7 prisoners, while in the UK, 2 prison officers are available for every 3 prisoners.

Without adequate prison staff, overcrowding in the prisons prompts widespread savagery and other criminal exercises inside the prisons.[29]

Neglect of Health and Hygiene

The prisoners in India suffer from severe unhygienic conditions, lack of proper medical facilities and consistent risk of torment and misuse. Women prisoners suffer more in these prisons due to lack of hygiene facilities. It may be at the time of their pregnancy or other complications.

Insufficient food and Inadequate clothing

Food and clothing provided in the prisons are barely enough to survive. It is inadequate and insufficient for the prisoners which lead to harsh effects on their health.

Deficiency in Communication

The prisoners are left to live in isolation without any contact with the outside world, their family members and relatives. They remain uninformed about the lives and wellbeing of their family.

Management of Open-Air prisons

It becomes very difficult to manage open-air prisons due to the prevailing overcrowding scenario in the prisons, staff crunch and weak management in prisons.

Psychological effect

Lack of inspection and crude usage of oversight mechanisms transform prisons intro startling wrecks with poor living conditions. This rot in the criminal justice framework affects the psychological condition of the prisoner. It causes adverse psychological effects such as depression, claustrophobia, anxiety and panic attacks, stress etc. it makes the prisoner more vulnerable than before to criminal penchants. The prisoner leaves the prison more demolished than improved.

Lack of transparency

Another issue confronting the Indian justice system is the absence of transparency. It is seen that the Right to Information (RTI) Act is thoroughly out of the ambit of the legal framework. Hence, in the working of the judiciary, the significant issues like the nature of equity and responsibility are not known appropriately.

Disparity in Laws and Dispensing Justice

It is evident that disparity exists in the implementation and application of the law. There is a lack of uniformity in the remission laws governing each state. The quantum of punishment differs at varied length.

Remedies

Increase in wages

The remuneration given to the prisoners should be enough to suffice their sustainable living.

Speedy Trials

The prisoners languishing in jail should be given legal aid at the earliest by accelerating the pace of the criminal justice system.

Separation of Under Trials, women offenders, first-time offenders and youth offenders

Under trials are usually people who haven’t been convicted of the offence yet and such prisons should be kept in a separate prison cell, away from hardened criminals so that they do not get influenced by such offenders.

Increasing to number of prisons

To deal with the problem of overcrowding the number of prisons should be increased in the country and prisoners should be transferred from overcrowded prisons to prisons where there are prisoners are sparse. People should be appointed with such management skills that are required to deal with overcrowding. Imprisonment should not be the punishment but should be substituted with high penalty in case of petty offences.

Improved Transparency

The transparency in the judicial system should be increased to understand the actual scenario in the prisons. Transparency can be brought by NHRC inspections and Court mandated inspections and mainly the follow up of these would serve the purpose.

Suggestions

Touch-screen Kiosk Application: There are numerous touch-screen kiosks around the prison for prisoners to use. At these kiosks’ prisoners can access their PDR, remission earned, prisoner property and cash details, parole/furlough application status, transfer status and under-trial detention alarm. Most prisoners are literate, but those, that are not, can get education classes inside the prison, including how to read and write in English.

A mobile complaint box should be installed outside the prisoner’s cell to ensure the problems of the prisoners are taken into consideration. The key to such should be only with the bodies which will inspect the prison.

The prison waste which is collected should be turned into a biofertilizer and sold to various companies and the profit should be shared with the prisoners.

Mentally ill should be accommodated in the psychiatric wing if such wing exists in the prison hospital, or he should be sent to the nearest mental hospital for treatment. Further, if the prisoner fails to recover from mental illness even after completing half of the maximum term of conviction, the State Government should consider his case for release.

Campus placements to the ones who have completed their education in the prisons.

Prisoners Welfare Fund with Government contribution shall be created in all the States to undertake various welfare measures for Discharged Prisoners and their families.

To set up a State Board of Visitors to visit prisons at regular periodicity and to report on conditions prevailing in the prisons for consideration of the State Government;

Sanitation and hygiene: Some of the important recommendations in this area are properly equipped laundries for washing, disinfecting and fumigating clothes and beddings; ratio of latrines should be 1:7 prisoners; cubicles for bathing at the rate of 1:10 prisoners; covering of open gutters in prisons; inspection of every prison by the local Public Health Officer periodically.

Inspection shall be carried by the advisory body at regular intervals without interference from the prison authorities. The prison administration should be brought under the ambit of the Right to Information, Act 2005.

Use of Technology: For people on parole and for first-time offenders, it would be better if, instead of imprisoning them, the State could simply put an ankle tracker on them and provide them with a relative degree of freedom. This would also cost the State far less money to house, feed and care for them. While the state has the technical capability to do this, it does not yet have the system to monitor and ensure that people on GPS software are doing what they are supposed to do.

Installation of CCTV cameras in the cells.

Appointment of the Welfare Officer

Extensive use of Probation Services in deserving cases by amending the appropriate provisions of the Probation of Offenders Act, 1958, adequately strengthening the infrastructure of the Probation Services and arranging sensitization programs regularly for judicial Officers, Prosecuting Officers and Police Officers.

Insertion of a new Section 357-A in the Cr.P.C, 1973 for the payment of compensation to the victims of crime out of the earnings of the Prisoners under Wage Earning Scheme.

Amending the existing Section 53 of the Indian Penal Code to include the Community services as one of the punishments prescribed under this Section.

Amending suitably the existing Section 433 of the Cr.P.C to consider and release under the Advisory Board Scheme the Lifers who offer a good prognosis for reformation and rehabilitation even before the completion of 14 years of actual imprisonment say 8-10 years.

Allowing NGOs and Philanthropists who are really interested in the welfare of Prisoners liberally in all the treatment programs in Prisons like Classification, Education, Vocational training, Medical and Health care, Sanitation and Hygiene, Recreation Activities etc.

As per the existing provision, the duties, rights and privileges of Prisoners should be printed in bold letters in vernacular language and pasted at several prominent places inside the Prison to make the prisoner aware of the same. Ahead of this, marquee of the above with picturization may be installed in conspicuous places for better understanding and learning of the prisoners.

To alleviate the misuse of Adolescent offenders by the Adult Prisoners in Prisons they may be segregated and confined in Borstal Schools (Remand).

There should be a minimum fixed tenure for the investigating officers to ensure timely completion of investigation and trial.

Role of National Human Rights Commission should be widened.

Conclusion

Prison is the important wing of administration of crime and criminology in the country. Ironically the research in the development of it is still in infancy. There are many hurdles to cross for the prisons to be a reformative institution than a custodial home of torture. The progress is mainly hindered by factors such as resource allocation, deterrent functions of punishment and rehabilitation approach. Prisons in the country shall endeavour to reform and re-assimilate offenders in the social milieu by giving them appropriate correctional treatment. Though there have been suggestions and recommendations by various committees, the major concern in India stands to be that of actual enforcement.

In conclusion it must not be overlooked that the issue of prison administration and reformation of prisoners is just a piece of the bigger picture of social recovery. The jail organization alone can’t effectively reform the prisoners. It can just try its modest endeavours to set right the prisoners; however, endeavours will succeed only when our economics, education, social institution and values are appropriately coordinated into a cogent and congenial whole in view of the learning of the human establishment.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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Endnotes

[1] “Prisons” <https://ift.tt/3626fe4; last seen on 05/10/2019

[2] P Diwan and P Diwan, Human Rights and the Law (Deep & Deep Publications 1996) 169

[3] Heinrich Oppenheimer, “The rationale of punishment” (1970) Core <https://ift.tt/2NdyzRQ > last seen on 5/10/2019

[4] Paranjape NV, Criminology & Penology with Victimology, (Sixteenth Edition, Central Law Publications, 470,479 (2014)

[5]Universal Declaration of Human Rights, 1948, Art 1

[6]Ibid., Art 3

[7]Ibid., Art 9

[8]Ibid., Art 11

[9]U.N. General Assembly, The International Covenant on Civil and Political Rights,1966, Res. 2200, Sess. 22, U.N. Document A/RES/2200XXI available at https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf last seen on 7/10/2019

[10]U.N. General Assembly, The International Covenant on Economic, Social and Cultural Rights, 1966, Res. 2200. Sess. 23, U.N. Document A/RES/2200XXI available at https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf last seen on 7/10/2019

[11]The Declaration on Protection from Torture, 1975, Art 2 and 3

[12] U.N. General Assembly, Res 45/111 (14th December 1990), UN Document A/RES/45/111 available at https://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf last seen on 07/10/2019

[13] U.N. General Assembly, Res 43/ 173 (10th December 1984) UN Document A/RES/43/173 available at https://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf last seen on 07/10/2019

[14] U.N. General Assembly, Convention against Torture and other Cruel, Inhuman or Degrading Treatment, Res 39/46 (1984), UN Document A/RES/39/46 available at https://redress.org/wp-content/uploads/2018/10/REDRESS-Guide-to-UNCAT-2018.pdf last seen on 07/10/2019

[15]National Consultation on Prison Reform, Report on the National Consultation on Prison Reform, 3-4 April 2010, New Delhi

[16]Amarendra Mohanty, Narayan Hazary, Indian Prison Systems, (Ashish Pub. House, 1990)

[17]Zubair Ahmed, “Jail reforms in India in- A study of Indian jail reform committees” 1 International Journal of Multidisciplinary Education and Research, Page No. 01-04, (2016)

[18]Supra note 2, at 481

[19]Ibid, at 482

[20] Ramamurthy v. State of Karnataka, (1997) S.C.C. (Cri) 386.

[21]Kadra Pahadiya v. State of Bihar, AIR 1983 SC 1167

[22]AR Antulay v. RS Nayak, [AIR 1984] SC 1630, again some directions were passed by SC in the case of Common Cause Society v. Union of India, AIR 1996 SC 1619

[23]MH Hoskot v. State of Maharashtra, (1978) 3 SCC 544

[24] Roy, Joy tilak Guha, Prison and Society, 112 (Gian Publishing House, 1989)

[25] Saul McLeod, ‘Psychodynamic Approach’(Simply Psychology 2013) <https://ift.tt/33Wbiuw; last seen on 08.10.2019

[26] Bhikhabhai Devshi v. State of Gujarat, AIR 1987 SC 136

[27]78th Law Commission of India Report, ‘ Congestion of under trial prisoners in jail’ 78, 1979 available at http://lawcommissionofindia.nic.in/51-100/Report78.pdf last seen on 08/10/2019

[28] Supra 20

[29]Basant Rath, ‘Why We Need to Talk About the Condition of India’s Prisons’(The Wire, 26 July, 2017) available at https://thewire.in/uncategorised/india-prison-conditions last seen on 08/10/2019

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Text

The legal odyssey of the Uniform Civil Code

This article has been written by Hitul Sehgal.

Introduction

“Wisdom alone can take your firm hand towards a common civil code, a more progressive civil code so that we can achieve more brotherhood, more intimacy.”[1]

-Justice V.R. Krishna Iyer

The preamble of our constitution guarantees us the liberty of thought, expression, faith, and worship. Throughout our constitutional history, the courts have contemplated, scrutinized and expanded upon the meaning of these words. The importance that our state granted to religion while attempting to remain secular, was perhaps the masterstroke of our lawmakers. It was a justified necessity to unite the myriad groups of people that inhabited our country. It will be a huge error to classify this move as mere appeasement, as it helped forge the unique identity of our nation that balances the separation of religion and state, while at the same time respecting the various religions that are a part of it.

However, balancing these two positions has time and again and proved to be rough terrain, full of unforeseen calamities. The unbelievably complex nature of the thousands of religious practices has resulted in a storm of conflicting legal issues, at the heart of which lies the question of a Uniform Civil Code (UCC). The oft-debated provision enshrined in Article 44 of our constitution that states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India[2]” remains untouched and the position of our Parliament almost unchanged.

What is a Uniform civil code?

In its most rudimentary sense, UCC refers to a unilateral system of civil laws for all citizens of a country. Although this might seem a gross oversimplification, it helps us understand a basic question, that was also alluded to by the father of our constitution Dr. B.R. Ambedkar, in the constituent assembly debates on Article 44[3], that if our country already has a Civil Procedure Code that does apply to all civil matters and extends to all citizens, and there exists a Contract act as well as various other provisions in Civil Law such as the Indian Partnership Act that apply uniformly to all our citizens, where exactly does Article 44 endeavors to provide uniformity? The answer being the kaleidoscopically complex provisions of our family laws, and this is where the debate gets heated. The personal laws of the various communities, whose cultural and religious beliefs our constitution guarantees to protect have been scrutinized, codified and legislated into several detailed and sometimes conflicting enactments. Moreover, even in our modern constitutional democracy, orthodox personal laws that originate from ancient sources like the Manu Smriti or The Holy Qur’an have not entirely lost their validity, and still, exist to provide validation to malignant patriarchal value systems.

Battling Discrimination Through Legal Challenges

Amendments to Christian Law

One only needs to turn the pages of our constitutional history, and therein he can find a labyrinth of cases that highlight the misogynistic and conservative characteristics of our personal laws. Here the Indian Courts and Law Commission have always proved to be a beacon of light, especially when faced with the challenges of rectifying historically discriminatory provisions such as Section 10 of the Indian Divorce Act[4], which the Parliament amended through the Indian Divorce (Amendment) Act[5], after a string of decisions by the High Courts of Bombay, Calcutta, and Kerala[6].

Gender Discrimination under Muslim Law

Perhaps, the most controversial of these challenges was the well-known case of Shah Bano[7] and the ensuing chaos which led to the passing of the ironically titled The Muslim Women (Protection of Rights on Divorce) Act[8], that overruled the judgment. The Supreme Court once again came to the rescue of Muslim women and the dignity of our society through its decision in Danial Latifi,[9] by upholding Muslim women’s right to maintenance after the period of Iddah is over. More recently, in Shayara Bano[10], the Supreme Court once again restored our faith in the ideals of equality and justice that it seeks to uphold by abolishing the highly contentious provision of talaq-e-biddat, paving the way for the Muslim Women (Protection Of Rights On Divorce) Bill, 2019, that criminalizes the practice[11]. An interesting point that emerged in the above case that is worth mentioning here is the Attorney General’s contention that talaq-e-ahasan and talaq-e-hasan, the other two modes of divorce available to Muslim men were also unconstitutional due to their arbitrary and unilateral nature[12]. But even if the arbitrariness is remedied in matters of divorce, the truly controversial provision of polygamy for men would still prevail.

Patriarchy in Hindu Law

Coming to Hindu law, which applies to more than 80% of the country’s population[13], it still continues to have glaringly unequal provisions. For instance, the discriminatory wording of Section 6 of the Hindu Minority and Guardianship Act[14] challenged in Gita Hariharan’s case[15] which gave mothers, a secondary position as guardian. Similarly, until the 2005 amendment[16], the Hindu Succession Act[17] was also filled with various handicaps for women coparceners, and widows who wished to remarry. And while we are still on the issue of marriages, a major handicap in our personal laws is that the registration of marriages is not a mandatory provision under most personal laws. As the law commission judiciously pointed out in its 2017 report[18] that making registration compulsory, “would also aid in eliminating practices such as early and forced marriages. It can be helpful in achieving gender equality and empowering women. (270th Law Commission of India Report, 2017)”[19]

Miscellaneous inequitable provisions under personal laws

Another serious matter is the unbelievably discombobulating stance of our country on child marriage laws. Even after lengthy pieces of legislation, and acts passed by the Parliament[20], in an effort to eradicate this evil, the real blow has come, once again, in the form of a successful writ petition[21], that finally criminalized intercourse with a minor wife.

Even now we have barely scratched the surface of the problem, there are still a number of inconsistencies that need to be remedied. For example, the adoption laws of our country which vary from religion to religion. Under Hindu law, the adopted child has the same rights as a biological child, but Islamic Law does not even recognize the status of an adopted child. Only through a 2014 judgment[22] of our apex court, Muslims have been granted the right to adopt through the provisions of Juvenile Justice act[23].

Oppositions to a Uniform Code

It would be prejudicial to ignore the contrary view about the UCC. The first opposition comes from religious activist groups, devoted to safeguarding their traditions from invasive law reforms. For the fundamentalists, unifying our personal laws will be a death blow to diversity. But if in the name of culture and custom, all they want is the perpetuation of their hackneyed class traditions of patriarchal dogma, it will perhaps be in the best interest of the principles of equity and justice to do away with such traditions.

The second and more reasonable objection came from the law commission itself, when in its recent report it declared a UCC to be, “neither necessary nor desirable at this stage.” (Consultation Paper on Reform of Family Law, 2018)[24]. Further suggesting, that small amendments, and codification of existing personal laws will be the better way forward. Indeed, the position seems to be the golden mean for two extremely polarizing opinions. The suggestion will definitely preserve the dignity and diversity of our religions, while also changing their more draconian aspects in accordance with the changing status quo. However, the problem with this approach is evident, as these amendments and reforms take years to shape and successfully implement, and while no one is arguing that the change should come with a finger snap, the piecemeal approach does seem to be an elaborate way of saying that the Parliament and Supreme Court should keep following its current one at a time method of correcting injustices.

Constitutionality of a Common Civil Code

Courts and the UCC

The whole Common code conundrum, in the simplest of terms, seems to center around two often conflicting fundamental rights- the Right to Equality[25] and the Right to freedom of religion[26]., both unequivocally inalienable in nature. In Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[27], the question arose about the distinction between religious and secular affairs. The question, in the above context was perhaps best answered in Sarla Mugdal’s case[28], where the honourable court expressly stated that “Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27”[29], while questioning Parliament’s incompetence in implementing a Uniform Civil Code. Two years later, while rejecting the petitions filed under Ahmedabad Women Action Group’s case[30], our apex court clarified that a Uniform Civil code could only be introduced and implemented by the Parliament. The ratio behind the verdict comes from cases like Narasu Appa Mali[31] and Krishna Singh[32]where the courts have held that personal law, which exists through tradition cannot be constitutionally challenged, as it is outside the ambit of Part III our constitution. But only very recently the scales of justice tilted in the favour of transformative constitutionalism when our honourable Judges in their infinite wisdom finally eroded the constraints of this regressive precedent, when they finally allowed women to walk the grounds of Sabrimala.[33] The historical judgment has definitely moved us one step closer towards ending the injustices ingrained in our personal laws.

The Shining Example of Goa

It would be criminal not to mention the example of Goa in a discussion about the UCC, especially in light of the recent Supreme Court judgment[34], in which the court praised the state’s unique position of being the only Indian province with a Uniform personal law, albeit with some concessions. While mentioning the fact that it is the only state where verbal divorce and polygamy cannot be practised by Muslim men the court once again highlighted our Government’s failure of fulfilling the expectations of our founding fathers. But even the Portuguese Civil Code[35] is filled with inconsistencies such as limited polygamy and adultery as a fault ground, available only to men.[36]

Parliament and the Uniform Civil Code

From the above discussion, it becomes conspicuous that not only do our courts ardently support a Uniform code, but they also have time and again called for it to be implemented. But unlike a Fundamental Right, Article 44 is a provision under Directive Principles of State Policy, is non-justiciable in nature. In John Vallamattom[37], the Supreme Court once again lamented the forgotten wording of Article 44 and asserted its importance in bringing about national integration.

Unfortunately, the legislature seems to be the sole authority that can make it a reality, and so far, the courts’ wishes have fallen on deaf ears. However, it would be unwise to be utterly pessimistic about its prospects. As mentioned above, the changes the courts and Parliament together have made in the personal laws, have removed various outdated provisions and the existence of acts such as The Dissolution of Muslim Marriages Act, [38] The Muslim Women (Protection Of Rights On Divorce) Act[39], The Prohibition Of Child Marriage Act [40], and the amendments to Indian Divorce Act[41], have had the combined effect of homogenizing our personal laws. But still our lawmakers have a long way to cover, and several promises to keep.

Given our religiously fueled political climate, it may seem hopeless that the only way to uniform personal laws is through our legislature and our courts can only urge the government for its implementation. So, one might rightfully ask this, historically what has been the stance of our Parliament on committing towards this radical change? The answer would definitely not raise any eyebrows. When the legislature decided to codify existing religious laws, it unwittingly set our country on a course that would have never led to a common civil code. It made the thought of a uniform code seem poisonous, so much so, that in the past when the calls for a uniform civil code arose from various opposition parties, instead of feeling reformatory, their motives felt vindictive and mala fide. In its 2019 manifesto, the BJP government has once again promised to deliver the nation a Uniform Civil Code[42], it is yet to deliver on this promise.

Conclusion

The quest towards a Common Civil Code though incomplete has served as a real test of the true nature of our democracy. Hindered by-laws that reek of appeasement and politicians who owe their entire existence to the cataclysm of religious wars, this quest has been guided by the pole star of our judiciary. The vision of our founding fathers is still an aspiration to be achieved.

A personal law system based on religious principles is unable to function under a secular democracy. It is fundamentally against any notion of a just society, a concept which John Rawls once defined as “In a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”[43] (Rawls, 2005). One might wonder, for how long the citizens of this country will have to bear the law’s delay and the insolence of political offices, in failing to secure for them the ideals of our own constitution.

Endnotes

[1] [1] Iyer, V.R. (1986). Strategy Towards a Uniform Civil Code: Journal of Dharma: Dharmaram Journal of Religions and Philosophies, [online] 11(3), p.226. Available at: https://ift.tt/2Mm5Wmp [last seen on 20 Sep. 2019].

[2] Article 44, The Constitution of India, 1950.

[3] See CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII, 23rd November 1948, speech by Dr. B. R. Ambedkar 25, Available at: http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C23111948.pdf.

[4] 1869.

[5] 2001.

[6] See Raj Kumar Gupta v. Barbara Gupta, AIR 1989 Cal 1, Ammini E.J. And Etc. v. Union of India (Uoi) And Ors., AIR 1995 Ker 252 and Mrs. Pragati Varghese And Etc. v. Cyril George Varghese And Etc., AIR 1997 Bom 349.

[7] Mohd. Ahmed Khan v. Shah Bano Begum and Ors, AIR 1985 SC 945.

[8] 1986.

[9] Danial Latifi & Anr v. Union of India, (2001) 7 SCC 740.

[10] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[11] S.4, The Muslim Women (Protection of Rights on Marriage) Act, 2019.

[12] See Shayara Bano v. Union of India, (2017) 9 SCC 1, pg. 119.

[13] Censusindia.gov.in. (2019). Census of India: Religion. [online] Available at: https://ift.tt/Zha321, last seen on 24 Sep. 2019.

[14] 1956.

[15] Ms. Githa Hariharan & Anr v. Reserve Bank of India, AIR 1999, 2 SCC 228.

[16] The Hindu Succession (Amendment) Act, 2005.

[17] 1956.

[18] 270th Law Commission of India Report, Government of India, Compulsory Registration of Marriages, available at: https://ift.tt/33wo4zy, last seen on 24 Sep. 2019.

[19] Ibid. pg. 5-6.

[20] For example, The Child Marriage Restraint Act of 1929, The Prohibition of Child Marriage Act, 2006 and Protection of Children from Sexual Offences Act, 2012.

[21] Independent Thought v. Union of India, 2017 SCC Online SC 1222.

[22] M/S Shabnam Hashmi v. Union of India & Ors., (2014) 4 SCC 1.

[23] 2000

[24] LAW COMMISSION OF INDIA, GOVERNMENT OF INDIA, Consultation Paper on Reform of Family Law, pg. 7, available at: https://ift.tt/2Bin1aB, last seen on 24 Sep. 2019.

[25] Article 14, The Constitution of India, 1950.

[26] Article 25, The Constitution of India, 1950.

[27] Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and anr. v. the Commissioner, Hindu Religious Endowments, Madras and ors., (1952) IMLJ 557.

[28] Sarla Mudgal, & others. v. Union of India, AIR 1995 SC 1531.

[29] Ibid. pg. 11.

[30] Ahmedabad Women’s Action Group v. Union of India, AIR 1997, 3 SCC 573.

[31] State of Bombay v. Narasu Appa Mali, Air 1952 BOM 84.

[32] Sri Krishna Singh v. Mathura Ahir And Ors., AIR 1982 SC 686.

[33] Indian Young Lawyers Association v. The State of Kerala WRIT PETITION (CIVIL) NO. 373 of 2006 (Supreme Court, 28 September, 2018).

[34] Jose Paulo Coutinho V. Maria Luiza Valentina Pereira & Anr., CIVIL APPEAL NO. 7378 OF 2010 (SUPREME COURT, September 13, 2019).

[35] 1867.

[36] Feminism In India. (2019). Is Goa Civil Code The Answer To India’s Sexist Laws? | Feminism In India. [online] Available at: https://ift.tt/2SXxcZx, last seen on 24 Sep. 2019.

[37] John Vallamattom & Anr v. Union of India, Writ Petition (C) No. 242 of 1997 (Supreme Court, 21/07/2003).

[38]1939.

[39] 1986 and 2019.

[40] 2006.

[41] 2001.

[42]BJP Election 2019 Manifesto English. [online] Documentcloud.org. Available at: https://ift.tt/31n3aS6 [Accessed 25 Sep. 2019].

[43] Rawls, J. (2005). A theory of justice. 1st ed. Cambridge, Mass.: Harvard University Press, pp.3-4.

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AIBE: Mock Test for Bar Exam Preparation- Part 6

AIBE: Mock test 6, Solve the Mock Test to strengthen your Preparation for All India Bar Exam and increase your chances of clearing the paper.

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Mock Test 6

1.) Doctrine of election is based on the foundation that a person taking the benefit of an instrument must

A.) not bear the burden

B.) burden is not the subject of election

C.) burden is the subject of election

D.) bear the burden

2.) frost v knight is a leading case on

A.) s.32

B.) s.33

C.) s.34

D.) s.35

3.) which among the following is a law based on equity

A.) indian contract act 1872

B.) indian penal code 1863

C.) indian partnership act 1932

D.) specific relief act 1963

4.) which section of specific relief act describes temporary injunction

A.) 45

B.) 41

C.) 37

D.) 36

5.) the maintenance amount which can be transferred is

A.) future maintenance

B.) right to future maintenance

C.) arrears of maintenance upto a certain date

D.) none of the above

6.) the maximum period during which a property can be tied up is

A.) only 15 years

B.) one or more life or lives in being at the date of transfer and the minority of an unborn person

C.) during the lifetime of the transferor and the minority period of an unborn person

D.) none of the above

7.) whoever causes bodily pain disease or infirmity to any person is said to have inflicted……. On victim

A.) grievous hurt

B.) hurt

C.) assault

D.) none of the above

8.) personation at election is an offence under s…… of IPC

A.) 124A

B.) 121 A

C.) 153 B

D.) 171 D

9.) raman having found a key of raju’s house which raju had lost, commits a house trespass by entering raju’s house after opening the door with that key. Raman has comitted the offence of

A.) house trespass

B.) criminal trespass

C.) house breaking

D.) none of the above

10.) ……. Defined crime as a violation of public rights and duties to the whole community considered as community

A.) Blackstone

B.) justice Bhagwati

C.) V.R Krishna Iyer

D.) Lord Heward

11.) Who among the following is not a public servant?

A.) liquidator

B.) a civil judge

C.) secratory of cooperative society

D.) none of the above

12.) The sampoorn grameen rozgar yojna was launched in 2001 and was implemented through

A.) labour offices

B.) government

C.) panchayati raj institution

D.) all of the above

13.) Right to freedom to acquire, hold and dispose of property is abolished by

A.) 44th amendment act 1978

B.) 43rd amendment act 1976

C.) 50th amendment act 1950

D.) 1st amendment act 1951

14.) Which of the following is covered under the definition of state

A.) The Indian statistical institute

B.) Indian counsel of agricultural research

C.) Sainik school society

D.) NCERT

15.) National conservation strategy and policy statement on environment and development is a major environmental and development is a major environmental policy in india and it was passed in the year

A.) 1988

B.) 1982

C.) 1992

D.) 1990

16.) …….. Of environment protection act defines environment

A.) 2(a)

B.) 3(a)

C.) 1(a)

D.) 11(a)

17.) Polluter pays principle means

A.) a polluter shall bear the cost of pollution as the polluter is responsible for pollution

B.) polluter shall not necessarily bear the cost as he might not be responsible for the pollution

C.) a polluter may bear the cost of pollution as the polluter is responsible for pollution

D.) none of the above

18.) Pollution is a civil wrong, if a tort committed against the community as a whole, a person who is guilty of causing pollution has to pay damages for restoration of the environment he also has to pay

A.) Exemplary damages

B.) Nominal damages

C.) Real damages

D.) None of the above

19.) Section 89 of CPC was incorporated through CPC amended act of ……. Which is the prominent provision that discusses about the jurisdiction of civil courts in applying alternate dispute resolution mechanisms

A.) 1989

B.) 1999

C.) 1988

D.) 2009

20.) In case the Supreme Court held that Part I of the Arbitration and Conciliation Act would equally apply to international commercial arbitration held outside India, unless any or all provisions have been excluded by agreement between the parties

A.) Bhatia international vs bulk trading S.A

B.) United India Inc Company ltd vs associated transport corp. ltd.

C.) Hakam singh vs gammon ltd.

D.) Ajmera brothers vs. suraj naresh kumar jain

21.) Establishment of permanent lok adalat is envisaged under s….. Of the legal service authority act1987

A.) 22B

B.) 22A

C.) 22(1)

D.) 22

22.) What are the remedies open to the party aggrieved in a suit of contract

A.) Specific performance and injunction

B.) Specific performance and damages

C.) Specific performance only

D.) All of above

23.) A’ resides at delhi and ‘B’ at Agra. B borrows Rs. 20,00 from A at benares and passes a promisory note to A payble at benaras. B fails to repay the loan . A may sue B at

A.) Benaras or agra

B.) Benares only

C.) Agra only

D.) Benares, agra, delhi

24.) The general principle of waiver that provides that failure to raise objection in the court of the first instance and at the earliest opportunity shall prevent the defendant from raising such objection at a subsequent stage and the judgement would not be vitiated on the ground of absence of territorial or pecuniary jurisdiction is reflected in which provision of CPC

A.) s.15

B.) s.16

C.) s.51

D.) s.21

25.) Act of court can do no wrong to any person. Which concept relates to this ideology

A.) precept

B.) caveat

C.) restitution

D.) injunction

26.) As per the provision of Crpc the word inspection used in section 93(1)© refers to

A.) things or documents

B.) documents only

C.) locality and place

D.) none of the above

27.) Statement recorded during an investigation under s 161 of crpc can be used during trial for

A.) corroborating the witness

B.) contradicting the witness

C.) both A and B

D.) neither A nor B

28.) if an accused is charged of a major offence but is not found guilty, he can be convicted of minor offence, if the fact established indicates that such minor offence has been committed, it was held in which case

A.) sangarabonia sreenu v state of A.P

B.) state of Himachal Pradesh vs tara dutta

C.) shamsher singh vs state of punjab

D.) nalini vs state of tamil nadu

29.) Ex dolo malo oritur is

A.) an action arose only when a right infringes

B.) an action could not prevent a legal right

C.) no action on an immoral act

D.) none of the above

30.) Quifacit per aliumfacit per se means

A.) act of an agent is the act of principal

B.) act of agent is not the act of principal

C.) principal and agent are liable jointly

D.) agent must not act in contravention of the act of principal

31.) The concept of privity of contract was rejected in

A.) winterbottom vs wright

B.) donoghue vs stevenson

C.) longmeid vs holiday

D.) heaven vs pender

32.) …… is observed as the world consumer rights day

A.) 15t march

B.) 16th march

C.) 12th march

D.) 11th march

33.) Accountability of medical professional and the need for qualitative change in the attitude of the medical service provided by the hospitals was emphasized by the Supreme Court in which of the following cases

A.) bhatia international vs bulk trading S.A

B.) indian medical association vs VP shantha and ors.

C.) maneka gandhi vs UOI

D.) lucknow development authority vs MK Gupta

34.) Renewal of driving licenses is envisaged under s… of motor vehicle act1988

A.) 20

B.) 21

C.) 22

D.) 15

35.) S. 82 of IPC is an illustration on

A.) presumption of fact

B.) presumption of law

C.) presumption of fact and law both

D.) none of the above

36.) Meaning of nemo moriturus praesumitur mentire

A.) a dying man can never speak truth

B.) a dying man can never speak false

C.) a dying man can speak truth

D.) a dying man may not speak false

37.) If a court lower to the sessions court tries a murder case that court is called as-

A.) coram sub judice

B.) coram non judice

C.) coram non sub judice

D.) coram judice

38.) Rashtriya swasthya bima yojna is mainly meant to serve the needs of

A.) organised workers

B.) unorganised workers

C.) unrecognised sector workers belonging to BPL category and their family members

D.) All of the above

39.) Equal pay for equal work for both men and women is proclaimed under ….. Of the constitution of india

A.) Art. 39(a)

B.) Art. 39(d)

C.) Art.39(b)

D.) Art.39(c)

40.) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him the employer shall pay to such workman subsistence allowance. This provision was inserted in the industrial employment Act 1946 in which year

A.) 1992

B.) 1982

C.) 2009

D.) 2010

41.) ……. Was a leading case on the point as to whether the employer has a right to deduct wages unilaterally and without holding an inquiry for the period the employees go on strike or resort to go slow

A.) bank of india vs TS kelawala and ors.

B.) Randhir singh vs UOI

C.) kamani metals and alloys ltd. Vs their workmen

D.) workmen vs reptakos brett and co ltd.

42.) Under the Industrial Disputes Act, if the employer terminates the services of an individual workman any dispute any dispute arising out of such termination shall be deemed to be

A.) industrial dispute

B.) individual dispute

C.) both industrial and individual dispute

D.) none of the above

43.) Gloucstershire grammar school case is a leading case to explain

A.) volenti non fit injuria

B.) injuria non fit volenti

C.) damnum sine injuria

D.) injuria sine damnum

44.) Main characteristic of the Code of Criminal Procedure is

A.) empowerment of executive megistrate

B.) separation of legislature from executive

C.) separation of executive from judiciary

D.) separation of revenue work from executive

45.) Object of investigation is

A.) To punish accused

B.) To acquit accused

C.) To collect evidence

D.) To convict accused

46.) Any dispute relating to possession of immovable property is decided by

A.) Judicial Magistrate

B.) Executive Magistrate

C.) Either by Judicial or Executive Magistrate

D.) Neither by Judicial or Executive Magistrate

47.) A conditional order for removal of public nuisance under section 133 Cr. P.C. may be passed by –

A.) The District Magistrate only

B.) The Sub-Divisional Magistrate only

C.) The Executive Magistrate only

D.) Any of above Magistrates

48.) In reference of information relating to commission of cognizable offence which of following statement is not correct? –

A.) it may be given to the officer incharge of police station

B.) It is reduced to writing by or under direction of officer incharge of police station

C.) Information reduced to writing is to be signed by person giving it

D.) Copy of information cannot be given free of cost to informant –

49.) Procedure for summary trail is provided in which section of Cr. P.C.?

A.) Section 251 to Section 260

B.) Section 238 to Section 250

C.) Section 260 to Section 265

D.) Section 255 to Section 265

50.) When a person who would otherwise be competent, to compound an offence under section 320 of Cr. P.C. is dead, then? –

A.) Offence cannot be compounded

B.) Offence can be compounded by an eye witness

C.) Offence can be compounded by legal representative of such person without consent of the Court

D.) Legal representative of such person can compound offence with consent of the Court

51.) When can a trial court release an accused on bail under section 389(3) of Cr. P.C. after conviction?

A.) Where accused is on bail, and imprisonment is not exceeding 3 years

B.) Where accused is on bail, and imprisonment is not exceeding 5 years

C.) Where accused is on bail, and imprisonment is not exceeding 7 years

D.) Where offence is exclusively bailable whether accused is on bail or not

52.) In proceeding under section 107 of the Code of Criminal Procedure an Executive Magistrate may require to execute a bond for keeping peace for such period not exceeding…as Magistrate thinks fit.

A.) 1 year

B.) 2 years

C.) 3 years

D.) 6 months

53.) Point out the incorrect statement

A.) In a cognizable offence any police officer may without any order from a Magistrate and without a warrant arrest any person

B.) A private person may arrest or cause to be arrested any person committing a cognizable offence

C.) An Executive Magistrate may arrest offender when any offence is committed in his presence and within his jurisdiction

D.) none of the above

54.) Rabindra Kumar Pal and Dara Singh v Republic of India, a famous case coming under S.30 of Evidence Act is also well known as

A.) Graham Staines Murder Case

B.) Graham Bells Murder Case

C.) Graham Street’s Murder Case

D.) Graham Stoits Murder Case

55.) Statement by a person who is dead is a relevant fact under ____ of the Indian Evidence Act

A.) Section 32

B.) Section 11

C.) Section 34

D.) Section 45

56.) A chargesheet filed under Section 173 of Cr. P.C. is an example of __

A.) Public document

B.) Private document

C.) Patent document

D.) Latent Document

57.) Procedure of investigation of criminal cases under the Criminal Procedure Code is contained in the chapter __

A.) XI

B.) XII

C.) X

D.) IX

58.) Identify the correct order in which the following law making treaties are concluded – (1) The Vienna Convention on Consular Relations (2) The General Agreement on Trade and Tarrifs (3) The Declaration of Paris

A.) 1, 3, 2

B.) 3, 2, 1

C.) 2, 1, 3

D.) 1, 2, 3

59.) Which one of the following doctrine requires that the parties to a treaty are bound to observe its terms in good faith?

A.) The Drago Doctrine

B.) Right of Asylum

C.) Doctrine of Equality

D.) Pacta Sunt Servanta

60.) General Assembly adopted the definition of the word aggression through

A.) Resolution 3314 (XXIX), 1974

B.) Resolution 3312 (XXXIX), 1973

C.) Resolution 2213, 1982

D.) None of the above

61.) The admission of a new political entity into the United Nations can be termed as

A.) Express recognition

B.) Conditional recognition

C.) Collective recognition

D.) De-facto recognition

62.) “A state is and becomes and international person through recognition only and exclusively.” Who stated this?

A.) L. Oppenheim

B.) Hobbes

C.) Fenwick

D.) Starke

63.) The United Nations Committee on International Trade Law (UNCITRAL) adopted the model law on e-commerce on

A.) 1997

B.) 1998

C.) 1996

D.) 2013

64.) Section 3 of Information Technology Act, 2000 which was originally “Digital Signature” was renamed as _____ in ITAA 2008

A.) Digital Signature and Electronic Signature

B.) Digital Signature and e-Signature

C.) Digital and Electronic Signature

D.) None of the above

65.) Which of the following are digital signature certifying authorities in India

A.) M/s. Safescrypt

B.) M/s. NCERT

C.) M/s. MTL

D.) All of the above

66.) Section 43 of the IT Act deals with

A.) Criminal liability

B.) Civil liability

C.) Both of the above

D.) None of the above

67.) “When a body corporate is negligent in implementing reasonable security practices and thereby causes wrongful loss or gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.” Which section of the ITAA, 2008 envisages so?

A.) 43

B.) 43A

C.) 43B

D.) 43C

68.) R obtained a sum of Rs. 50,000/- from D by putting D in fear of death. Here R commits

A.) Extortion

B.) Cheating

C.) Mischief

D.) Robbery

69.) Period of limitation for execution of the order of maintenance is ____ from the date on which it becomes due.

A.) 1 year

B.) 5 years

C.) 9 years

D.) 15 years

70.) The jural correlative of immunity is

A.) Power

B.) Disability

C.) No claim

D.) Claim

71.) Who defines “eternal law as the divine order or will of God which requires the preservation of natural order and forbids the breach of it”

A.) Ambrose

B.) Augustine

C.) Gregory

D.) All of the above

72.) “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one”. Who stated so?

A.) Thomas Paine

B.) Gregory Peck

C.) Jefferson

D.) Dicey

73.) The Constitution of India has recognized the concept of tribunals as instruments of quasi-judicial administrative adjudication

A.) Article 39A and 39B

B.) Article 323A and 323B

C.) Article 368

D.) Article 202A and 202B

74.) Nemo judex in causa sua meaning no man can be a judge in his own cause was first stated by ____ in Dr. Graham’s Case

A.) Lord Grey

B.) Lord Heward

C.) Lord Coke

D.) Lord Moulton

75.) General power of the Bar Council of India to make rules is envisaged under which Section of the Advocates Act, 1961

A.) Sec 48

B.) Sec 49

C.) Sec II-2

D.) Sec IV A

76.) Seven lamps of advocacy is attributable to

A.) Justice Abbot Parry

B.) Justice Heward

C.) Justice Bhagwati

D.) Justice Grey

77.) Which Section of the Advocates Act, 1961 speaks of disciplinary powers of the Bar Council of India?

A.) 35

B.) 37

C.) 36

D.) 39

78.) Section __ of the Advocates Act speaks of constitution of Legal Aid Committees

A.) 9

B.) 10

C.) 9A

D.) 10A

79.) Who among the following is not empowered to tender pardon to an ‘accomplice’ under

the Code of Criminal Procedure

A.) Metropolitan magistrate

B.) Chief Judicial Magistrate

C.) a Magistrate of the First Class

D.) Magistrate of Second Class

80.) A complaint case is commenced by

A.) Filing a complaint before the Executive Magistrate

B.) Writing a letter to the Superintendent of Police or the Commissioner, as the case may

C.) Filing an FIR

D.) Filing a complaint before the Judicial Magistrate

81.) A conditional order for removal of public nuisance under the Code of Criminal Procedure may be passed by

A.) District Magistrate

B.) Executive Magistrate specially empowered

C.) Sub-Divisional magistrate

D.) Any of the above authorities

82.) Who among the following is not empowered to tender pardon to accomplice under the code of criminal procedure

A.) Metropolitan Magistrate

B.) Magistrate of Second Class

C.) Chief Judicial Magistrate

D.) a Magistrate of the First

83.) Section 89 of the Civil Procedure Code was incorporated through the Civil Procedure Code Amendment Act of ____ which is the prominent provision that discusses about the jurisdiction of civil courts in applying Alternate Dispute Redressal Mechanisms

A.) 1999

B.) 1989

C.) 1988

D.) 2009

84.) Which one of the following is not essential for an offence?

A.) Intention

B.) Motive

C.) Prohibited Act

D.) Punishment for act

85.) In which of the following mens rea has been considered to be an essential element of an offence?

A.) Srinivasmal Barolia Vs. Emperor

B.) R. Vs. Tolsen

C.) Nathulal Vs. State of Madhya Pradesh

D.) All of the above

86.) Which one of the following is not a valuable security?

A.) A postal receipt for an insured parcel

B.) A rent note

C.) A promissory note

D.) Added of divoree

87.) Common Intention means–

A.) Similar intention

B.) Same intention

C.) Sharing of intention by all persons

D.) Common plans

88.) Nothing is an offence which is done by a child of –

A.) Eight years

B.) Ten years

C.) Seven years

D.) Twelve years

89.) What punishment may be awarded to the person, whose act is covered under general exceptions?

A.) No punishment

B.) Half of the punishment prescribed for that offence

C.) One-fourth of the punishment prescribed for offences

D.) Depends upon the discretion of court

90.) A makes an attempt to pick pocket of B by thrusting his hand into B’s pocket. A fails in the attempt in consequence of B’s having nothing in his pocket. A is guilty of –

A.) No offence

B.) Theft

C.) Attempt of theft

D.) Using Criminal Force

91.) Making preparation to commit dacoity is punishable in the Indian Penal Code 1860 under–

A.) Section 393

B.) Section 395

C.) Section 398

D.) Section 399

92.) A does sexual intercourse with a widow below 16 years of age with her consent–

A.) A has not committed Rape

B.) A has committed Adultery

C.) A has committed Rape with B

D.) Nothing above is correct

93.) Section 2 of Indian Contract Act provides

A.) Proposal

B.) Consideration

C.) Agreement

D.) Void Contract

94.) Section 6 of The Indian Contract Act 1872 provides

A.) Revocation how made

B.) Revocation of proposal

C.) Communication of proposal

D.) Nothing above is correct

95.) An agreement enforceable at law is a

A.) Enforceable acceptance

B.) Accepted offer

C.) Approved promise

D.) Contract

96.) Every promise and every set of promises, forming the consideration for each other, is an

A.) Agreement

B.) Contract

C.) Offer

D.) Acceptance

97.) In a valid contract, what comes first

A.) enforceability

B.) acceptance

C.) promise

D.) proposal

98.) Tender is

A.) an offer

B.) an invitation to offer

C.) a counter offer

D.) a promise

99.) In India, the express provisions of the Contract Act applies to

A.) Hindus.

B.) Females.

C.) Businessman.

D.) All of the above

100.) ____ is a one-sided contract in which only one party has to perform his promise or obligation.

A.) Void contract

B.) Illegal agreement

C.) Unilateral contract

D.) Bilateral contract

Answers

1.) D 2.) D 3.) B 4.) D 5.) C 6.) C 7.) B 8.) D 9.) A 10.) A 11.) D 12.) C 13.) A 14.) A 15.) C 16.) A 17.) A 18.) A 19.) B 20.) A 21.) A 22.) D 23.) C 24.) D 25.) A 26.) C 27.) A 28.) B 29.) D 30.) A 31.) B 32.) A 33.) B 34.) D 35.) B 36.) B 37.) B 38.) C 39.) B 40.) B 41.) A 42.) A 43.) C 44.) C 45.) C 46.) B 47.) D 48.) D 49.) C 50.) D 51.) A 52.) A 53.) D 54.) A 55.) A 56.) A 57.) B 58.) D 59.) D 60.) A 61.) C 62.) A 63.) C 64.) A 65.) A 66.) D 67.) B 68.) A 69.) A 70.) A 71.) B 72.) A 73.) B 74.) B 75.) B 76.) A 77.) C 78.) C 79.) D 80.) D 81.) D 82.) B 83.) A 84.) B 85.) D 86.) D 87.) D 88.) C 89.) A 90.) C 91.) D 92.) C 93.) A 94.) A 95.) D 96.) A 97.) D 98.) B 99.) D 100.) C

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