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Juvenile Justice (Care and Protection of Children) Act, 2015

Since the prehistoric times, there has been a notion that juveniles should be treated leniently since there is a theory that says– juvenile people have the inclination to behave in a strong and protracted exasperation that is followed by violent methods. It has also been noted that the majority of offences committed by children aged 15 to 18 has escalated dramatically in recent years. Early-life experiences, authoritative patriarchy, parenting, economic chaos, poor education, and other aspects all contribute to the general propensity or psychology that promotes criminal behavior among children. Considering that children’s brains have a naive and manipulative nature, they may be enticed at a scanty cost. Greater opportunities for growth and reform should be provided for them. As a result, a distinct legal procedure for minors who have run afoul of the law is required.

The engagement of the Juvenile accused in the 2012 Nirbhaya rape case prompted the Indian Parliament to implement the Juvenile Justice (Care and Protection of Children) Act 2015 which strives to modify the existing Juvenile Justice (Care and Protection of Children) Act of 2000 by endeavoring to analyze the mental capacities of the juvenile who commits a crime rather than the age. Furthermore, on July 31, 2013, BJP leader Subramanian Swamy submitted a Public Interest Litigation in the Supreme Court of India, demanding that the minor be convicted as an adult. The Court then requested that the juvenile court postpone its decision. Maneka Gandhi, the Minister of Women and Child Development, announced in July 2014 that they were coming out with a new legislation that would empower 16-year-olds to be prosecuted as adults. She claimed that half of all juvenile offences are perpetrated by teenagers who are conscious that they will get away with it. She further said that modifying the legislation, which would allow minors to be prosecuted as adults for murder and rape, would terrify them. The wider problem is the argument over whether the human psyche has adequately grown before the age of 18, and why it is still behind the 18-year-old adult threshold. Is the legislation also extensive enough to lessen the chances of juvenile crime by emphasizing on complete rehabilitation of juvenile crime via psychiatric therapy and the creation of social circumstances that allow them to be incorporated into society? The acquittal of prisoners in the Nirbhaya rape case was met with violence by a quarter of civil society. The State issued a decree that examines the prospect of altering the substance and scope of the law, in response to concerns about the legislation’s capacity to act as a deterrent.

The Act of 2015 also distinguishes between several types of offences, classifying them as minor, severe, or horrific. It asserted that if a minor has finished or is over the age of sixteen years and is accused of committing a terrible crime, a thorough examination of his mental and physical competence to commit the crime will be undertaken, and the child may be charged as an adult. This Act recognized that the rights of juvenile offenders are just as valuable as those of victims, and as a result, additional measures were recommended to address horrific crimes committed by those aged 16 to 18. However, the Indian community has been against this section of the Act.

Provisions of the Act:

The following are some of the Act’s provisions: 

  • The Juvenile Justice (Care and Protection of Children) Act of 2000 is replaced by the 2015 Act. It focuses on children who are in dispute with the law as well as minors who require support and treatment.
  • For egregious crimes, the existing Act allows minors between the ages of 16 and 18 to be prosecuted as adults. Also, any minor between the ages of 16 and 18 who performs a smaller, but significant, offence may be prosecuted as an adult only if he is arrested after the age of 21.
  • For each district, a Juvenile Justice Board (JJB) and a Child Welfare Committee should be established.
  • Special measures have been developed under Section 15 to deal with minor offenders aged 16 to 18 who commit serious crimes. After performing the preliminary assessment, the Juvenile Justice Board has the alternative of forwarding matters of severe crimes committed by such minors to a Children’s Court (Court of Session). 
  • The regulations call for minors to be confined in a “secure position” both during and after the prosecution, until they passed the age of 21, at which point the Children’s Court will perform an examination of the juvenile. 
  • Following the examination, the minor is either freed on probation or transferred to prison for the duration of his or her punishment if he or she has not rehabilitated. The legislation will serve as a deterrent to minor criminals who commit horrible crimes like murder and rape, while also safeguarding the victim’s rights. 
  • A child who is found working in contravention to labor laws, is  at serious risk of marriage before achieving the legal age for the same, or who lives with such a person who has or has menaced to harm, exploit, harass, or overlook the child or breach any other legislation, or whose parents or guardians are unqualified to take responsibility of him is now defined as ‘child’ in the new Act’s definition.
  • In circumstances of care and protection of children, the Child Welfare Committee will no longer be the ultimate authority. The District Magistrate will be the CWC’s dispute settlement body, and anybody with a connection to the minor may submit a plea with the DM, who will assess and issue necessary directions.
  • In contrast to juveniles for whom production reports are obtained under Section 36 of the Act, the Child Welfare Committee will henceforth undertake an investigation on every child presented before it. Parentless and relinquished children are now included in the procedure. 
  • A key element of Children’s Court had been inserted, which was lacking from the 2000 act. Where a court is constituted under the Commission for the Protection of Child Rights Act, 2005, or a Special Court is organized under the Protection of Children from Sexual Offences Act, 2012, when such courts are not authorized, the Court of Sessions has authority to examine offences under the Act.
  • Adoption today has a comprehensive definition, and children’s rights have been acknowledged. The existing Central Adoption Resource Authority (CARA) is granted the status of a legal entity to assist it to fulfil its duty more efficiently in order to speed adoption procedures for orphaned, abandoned, and relinquished children. A distinct chapter (VIII) on adoption contains extensive requirements on adoption as well as penalties for failure to follow the protocol. 

Criticism:

One of the most common critiques is that this Act allows minors to be prosecuted as adults.Every child below the age of 18 must be acknowledged as a minor, according to the United Nations Convention on the Rights of the Child. As a result, the clause in the Act of 2015 indicated above appears to be in violation of the Convention. Some argue that it undermines the rehabilitative underpinning of India’s current juvenile justice system. Additional critique is that the current regulation charges children differently depending on their age and the severity of the crime. It is also not based on the concept that, due to their developmental immaturity and amenability to rehabilitative treatment, children cannot be held to the same standards of guilt as adults. It is also argued that under the current legislation, Children’s Courts, which were created primarily to prosecute crimes against children, are now being used to hear crimes committed by children, therefore eliminating the purpose of these courts. The process of determining whether a minor between the ages of 16 and 18 has committed the crime as a juvenile or as an adult is also contested, as it is subjective and can be erroneous at times.

Conclusion:

In many aspects, the Juvenile Justice (Care and Protection of Children) Act 2015 is a forward-looking and robust law that protects children in scenarios where there is a legal dispute or where genuine care and protection is required. The legislation continues to distinguish between “children who need care and protection” and “children who breach the law,” in keeping with the spirit of juvenile justice reform and renewal. The government hopes that the measure would alleviate public outrage over the idea that youthful criminals are escaping off with low sentences after performing horrendous crimes involving murder and rape. However, implementation is a major challenge, and the Supreme Court of India is currently reviewing the existing Act’s enforcement in court proceedings. 

 

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India’s Pharmaceuticals Patenting System

Over the last several decades, the Indian pharmaceutical industry has witnessed a robust and remarkable revolution. Considering profits and competitiveness drive the pharmaceutical business, each business strives to be the first to discover cures for specific ailments. The industry is anticipated to remain to adapt and evolve in the long term. This has been made feasible by strong scientific and technical manpower, as well as innovative process development efforts. Owing to circumstances such as supportive regulatory strategies and deficient competition externally, the contemporary industry participants encompass numerous privately held Indian corporations that have acquired a significant proportion of the national pharmaceutical market. The expansion of India’s pharmaceutical industry may be divided into four phases. The first phase is the time before 1970 when foreign corporations regulated the Indian market with minimal indigenous engagement. The time between 1970 and 1990 is the second phase. Several domestic enterprises commenced operations at this time. During this time, the Indian Patent Act of 1970 was implemented, and export endeavors were initiated. The third phase lasted from 1990 until 2010. During this time, liberalization prompted Indian companies to establish a presence in other nations.

The TRIPS agreement:

Developing an ingenious medicine and delivering it to the marketplace is a tremendously costly errand. Patenting products is always a concern for companies introducing new medications to safeguard their commercial and financial interests. It is essential for the industry’s success that investors feel comfortable putting their money in the field and pharmaceutical businesses get that assurance because of patent law. Patents are prevalent forms of Intellectual Property Rights (IPR) in the pharmaceutical sector. After India signed the Trade Related Aspects of Intellectual Property Rights (TRIPS) pact in 1995, substantial improvements occurred in India’s patent law. Intellectual property (IP) frameworks in most World Trade Organization member nations have evolved with the inception of Trade-Related Aspects of Intellectual Property Rights (TRIPS). The agreement constructed the prerequisites for intellectual property legislation that each of its member nations must adhere to. As a signatory to the TRIPS agreement, India was legally bound to modify its Patent legislation to comply with regulations of the agreement.

Evolution and amendments of Patent Laws In India:

Until 1972, India’s pharmaceutical sector was entirely reliant on imports, with the majority of pharmaceuticals deemed costly. The Patent Act of 1972 and the Drug Price Control Organization (DPCO), 1970, among other political and policy events in the early 1970s, laid the groundwork for India’s robust pharmaceutical sector. The Patent Act of 1972, however, prohibited product patents in medications, and the Drug Price Control Organization (DPCO) placed a substantial number of products under cost controls and patents were only granted for a term of seven years under this Act. Before TRIPS, the lack of product patents allowed for local manufacturing of patented pharmaceuticals at a fraction of the original value. Process patents pushed generic businesses to lower medication manufacturing costs. India’s total compliance with the TRIPS regulation, which enables product patents, transformed the competitive alternatives available to Indian pharmaceutical companies. Because the unavailability of patent protection in India coincided with significant growth in the local pharmaceutical business, TRIPS was deemed as a serious threat. India took the maximum amount of time permitted for developing countries to patent medicinal inventions, which was 2005. However, the Patents (Amendment) Act, 1999 was the first in this series of amendments, and it provided mainline protection until the government began issuing product patents for pharmaceutical inventions. The Act established provisions asserted under Section 5 (2) for submitting mailbox applications for product patents in the sectors of medicines and agrochemicals, as well as the awarding of Exclusive Marketing Rights (EMRs) on those patents. Only after December 31, 2004, were such applications to be examined. The applicant might, however, file for EMR as described in Sections 24A and 24B, although acquiring “EMR” did not ensure a patent. Despite the fact that this legislation was passed in 1999, it had retroactive effect from January 1, 1995. Further, India modified the Patents Act, 1970 with the Patents (Amendment) Act, 2002 to meet with the second set of TRIPS provisions. This amendment established a 20-year standardized patent term for all categories of innovations, i.e., patents have a 20-year restricted duration starting from the date of filing the patent application. The Patents (Amendment) Act, 2005 established the third set of patent law modifications. The Indian Patents Act, 1970, was revised in 2005 to offer patent protection for pharmaceutical products and pharmaceuticals. 

Under specific conditions, the mere invention of a new form, new property, or new use of a known substance was made patentable, pre-grant and post-grant opposition regulations were altered, and a regulation for the allowance of a compulsory license for the export of patented pharmaceuticals was initiated.

Patents are only issued to discoveries that meet a set of requirements known as patentability criteria. A patentable innovation is defined as “a novel product or technique incorporating an innovative step and capable of industrial application,” according to the Indian Patent Act. As a result, each innovation must meet the following criteria to be patentable: novelty, inventive step, and industrial applicability. The Patent Act of 1970, amended in 2005, explicitly defines which intellectual properties are patentable in India and, more particularly, which intellectual properties are not patentable. A drug may not be patentable if it does not amount to an increase in quality in its effectiveness or the mere innovation of any new property or new use of a known substance, or the simple use of a known process, machine, or apparatus, unless the known process produces a new product or uses at least one new reactant. The applicant’s patent protection is limited to the nation in which it is applied and is not cross-border. The patentee, on the other hand, may seek for patent protection in many nations at the same time. 

The Contentious Section 3 (d):

In 2005, India made it feasible for pharmaceutical products to be patented. When doing so, the Indian government introduced a contentious implementation into the patent law, Section 3(d), which attempts to restrict the grant of “secondary” pharmaceutical patents, i.e. patents on novel forms of existing drugs and molecules. In other words, 3(d) prohibits patents from becoming “evergreen.”

Section 3(d) has caused a great deal of controversy. The Indian Patent Office‘s (IPO) decision to deny a secondary patent on Novartis’ cancer medication “Gleevec”, which referenced Section 3(d) as one of the grounds for denial, was a high-profile case that brought 3(d) to the world’s notice. Novartis contested legality of Section 3(d) and opposed the IPO’s ruling, prompting health advocates to launch a campaign against Novartis and in favor of the clause. The validity of 3(d) was affirmed, and the decision to refuse the Gleevec patent was affirmed by the Intellectual Property Appellate Board in 2009, and then by the Indian Supreme Court. However, the criticism and debate surrounding 3(d) has not been restricted to only one medicine. In India, and more widely in poor nations acquiring pharmaceutical patents in conformity with TRIPS, the clause has prompted fierce and diverse opinions on pharmaceutical patents. Many law experts, civil society organizations, and international organizations, on the other hand, have praised India’s policy choice, citing 3(d) as a noteworthy example of a country adhering with its contractual obligations while preserving generic competition. 3(d) is regarded with scorn by many international governments and the international pharmaceutical sector. 3(d) is frequently cited by the US government as one of the grounds for India’s inclusion on the “Priority Watch List.” Their worry that 3(d) makes it tough to get a patent in India is well-documented in academic literature as well. 

 

Patent Linkage of Generic Drugs with Patents:

The term “patent linkage” alludes to a relationship between the patent registration process and drug regulatory clearances, which does not exist in the Indian law. Patent Linkage is the exchange of information between national regulatory agencies and the Patent Office in order to prevent the approval of generic pharmaceuticals until patents protecting the drug product or its permitted use have expired. The Indian Patent Office issues patents, and the Drug Controller General of India (DCGI) offers marketing licenses without consulting the other divisions. Between or among India’s national regulatory bodies, there is a patent relationship. This approach necessitates that “second applicants,” generally generic pharmaceutical businesses desiring marketing authorization, clarify that the pharmaceutical product for which they are requesting is not safeguarded by a valid patent. National regulatory bodies are required under this type of legislation to ban the registration and marketing of generic medications when the product is covered by a patent. Furthermore, the DCGI does not keep track of patented medications. As a result, a generic producer who enters the Indian market with a new medicinal product does so at their own responsibility and without necessarily being aware of any patent disputes. 

 

Conclusion:

The Indian patent system is an excellent demonstration of patent legislation that strives to align the interests of both regular folks and innovators. A broad spectrum of pharmaceutical items can now be patented in India due to the implementation of the product patents act. Whenever filing for a patent, organizations should carefully evaluate the patentability criteria, and the expertise of a patent specialist is strongly recommended in this aspect. Patent rights can be assigned or licensed to other people or corporations once they have been obtained. Analysis proves that the Indian pharmaceutical business is currently dominated by generics, with creativity playing a little role in its progression. Until date, the Indian Patent System has maintained a careful balance between the patentee’s and the Indian public’s interests.

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Dissolution of Muslim Marriage Act 1939

The legal separation of a man and a woman’s civil relationship is known as divorce. Divorce law and procedures in India differ significantly depending on the pair’s community. Almost every religion acknowledges marriage as a holy relationship between a man and a woman that can’t or shouldn’t be violated by any power on earth, and Islam is no different from this philosophy. According to Islam, “divorce is a blunder.” The most abhorrent of lawful things before Allah, as proclaimed by Prophet Muhammad, is divorce. So, while the divorce is permissible, Muslims should seek to discourage it if at all possible. However, for the sake of the community’s health, it is an unavoidable step and it is the only cure for another potentially harmful damage. Divorce prohibition, whatever damage it may mean, is analogous to surgery prohibition since the surgeon is forced to amputate any of the patient’s limbs. Divorce is the only way to bring an end to any animosity that might exist between a husband and his wife until it escalates and becomes an intolerable social blight.

There are two forms of divorce prevalent under Muslim Law:

 1) Extrajudicial divorce and 

 2) Judicial divorce

 The extra-judicial categories of divorce under Muslim law are namely Talaq, Zihar, Khula, Mubarat, Talaq-e-Tafweez, and so on. A Muslim husband of sound mind has the right to divorce (Talaq) his wife at any time and for any cause. Talaq may be given orally or in writing, and there is no set format for delivering a Talaq. Other forms for a Muslim man to gain a divorce include Ila and Zihar, which vary only in the description but not in nature from Talaq. 

A woman, on the other hand, may obtain a mutually agreed-upon divorce by Khula or Mubarat. A divorce cannot be sought by a woman based on her own free will. She can only divorce her husband if he has granted her this right, i.e. Talaq-e-Tafweez, or if they have negotiated an agreement As a result; her only option is to adhere to a different religion to end her marriage.

The Shariat Application Act, passed in 1937, was an endeavor to codify the Muslim Personal laws. However, soon after the bill was passed, it was discovered that citizens preferred to pursue their personal practices, defeating the entire purpose and rendering it ineffective. But, when it comes to essential reforms in personal laws, the Indian legislature is cautious. Following this, another effort was made in 1939, which resulted in the enactment of the Dissolution of Muslim Marriage Act of 1939 aimed at providing Muslim women the same right to divorce as their Hindu and other religious counterparts. This Judicial form of Divorce was enforced under the British regime in India, and it stipulated the laws that Muslims would obey when seeking divorce. The Act’s overall purpose is to resolve the ambiguities around a woman’s renunciation of her husband from the marriage contract, as well as to consolidate and illustrate the rules that regulate Muslims for dissolving marriage by women who are married according to the Muslim Law. Before 1939, Muslim women appeared to have no right to divorce unless they were convicted of adultery by their husbands and sought a divorce by the extrajudicial procedure called Lian. However, the Dissolution of Muslim Marriages Act of 1939 establishes several grounds on which a Muslim wife may have her divorce decree authorized through a court order. Excluding the state of Jammu and Kashmir, the Act applies to the entire country of India. 

Grounds for decree for dissolution of marriage: A woman married under Muslim law has the right to access a decree dissolving her marriage on any one or more of the following grounds, as per Section 2 of the Act:

  • If the husband’s whereabouts have been unknown for more than four years; in this situation, the decree may not take effect until six months after it was issued, and the husband will reappear during that time and have the decree revoked by demonstrating to the Court that he is fulfilling his conjugal duties. 
  • If the husband has been sentenced to a minimum of seven years imprisonment
  • If at the time of marriage, the husband was impotent and appears to be so, the court may, before delivering the decree, issue an order on an appeal submitted by the husband, requiring the husband to convince the court, within one year of the order’s issuance, that he has ceased to be impotent; if the husband satisfies the court to this extent, no decree would be issued.
  • If the husband has refused to cooperate with his marital duties for a span of three years without due cause.  In Muslim law, the man has a range of marital obligations. However, only those conjugal duties that are not contained in any of the provisions of Section 2 of this Act can be taken into consideration for the purposes of this provision.
  • If the husband is insane or has had leprosy or some other venereal disorder for more than two years, the wife will seek judicial divorce on the same terms.
  • If the husband treats the wife with inhuman behavior and cruelty, she may file an appeal for a judicial separation order based on the same grounds. Sexual abuse, making defamatory remarks against the wife’s integrity, pressuring her to live an unethical existence, hindering her from exercising her religion, or possessing more than one wife and not treating them fairly are all instances of grounds for cruelty.
  • If a girl is married by her father or guardian before the age of 15, she has the right under Muslim law to condemn the marriage once she reaches the age of 18, as long as the marriage is not consummated. For the same, she is entitled to a separation decree.
  • If the husband has ignored or refused to pay for her maintenance for a duration of two years. 
  • Or on any other terms approved by Muslim law as legitimate for the separation of marriages.

Besides, a married Muslim woman’s renunciation of Islam or conversion to a religion besides Islam does not completely dissolve her marriage: The woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the conditions listed in Section 2 after such renunciation or conversion. The regulations of this section do not extend to a woman who converts to Islam or another religion and then re-embraces her former religion. 

 

The male-dominated Muslim community must acknowledge women’s rights, and it is beyond time for us, Indians, to do so as well. Individuals must stand together to speak up for the plight of Muslim women who have been oppressed for a long time. There has been an improper interpretation of Islam, and it is the responsibility of the Legislature and the Judiciary to correct this. It is essential for India to consider that times are changing and that personal laws need to be restructured. India has always stood up for what is right and overlooked what is wrong. One such remarkable example of this is the Dissolution of Muslim Act 1939 which upheld the wife’s right to divorce, which had once been denied to her. About the fact that the Dissolution of Muslim Marriage Act of 1939 paved the way for numerous modifications, it did not limit a man’s exclusive right to divorce his spouse.

 

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Hindu Succession Act

‘A son is a son till he gets a wife, but a daughter is a daughter all her life.’ With the fast pacing life and modernization there have been many amendments made in our Indian Constitution to safeguard the rights of women of our country. One of them, the most controversial one, is the Hindu Succession Act. The spot of Hindu women has always been imperiled to male members of the family even in accordance with the Dharmashastras.  Therefore, when the Hindu Succession Act was enacted in 1956; the lawmakers did not find any need for giving equal rights to daughters in the ancestral property of the father, due to their belief that the daughter will be a part of another family after her marriage and thus should not have right to inherit anything from her father’s property.

Partition is the compensation of the status of Joint Hindu Family, known as Hindu Family. As stated in the Hindu Law once the status of Hindu Family is put to an end, there is hypothetical division of properties among the members and the joint ownership of the property comes to an end. Partition could be partial as well. Our freedom fighters such as DR. B.R. Ambedkar fought for the basic rights and formulated the “HINDU CODE BILL” but yet, it was in vain. None of the social reforms made a difference in the status of the women of our country.

The framers of the Indian Constitution took note of the contrary and biased position of women in society and took special care to ensure that the State took positive steps to give them equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India thus not only constrain judgement against women but in suitable circumstances provide protective judgement in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution which talks about the Directive Principles which are on similar lines as fundamental in the governance of the State and inter alia also provide that the State shall ensure equality between man and woman. Nonetheless these constitutional commands given more than fifty years ago, a woman is still abandoned in her own biological family as well as in the family she marries into because of unconcealed disrespect and unjustified abuse of these provisions by some of the personal laws. To carry out reforms to remove the inequalities and incapacities suffered by Hindu women, the Hindu Succession Act, 1956 was enacted and came into force on 17th June, 1956. It is laid down for all the Hindus including Buddhists, Jains and Sikhs. In the year 1986 the State of Andra Pradesh, in the year 1990 Tamil Nadu and in the year 1994 the State of Maharashtra and the State of Karnataka added Chapter II-A to Hindu Succession Act, 1956 containing Section 29-A, 29-B and 29-C, distinguishing the daughter in Hindu joint family governed by Mitakshara Law as an heir by birth in her own right in the same manner as the son having same right in the ancestral property as she would have had, if she were a son and comprehensive of the right to entitlement of survivorship subject to same liabilities and disabilities in respect thereto as that of a son. On partition, equivalent share will be allotted to a son as it is allotted to the daughters as a coparcener. Nevertheless, according to the Maharashtra Amendment Act 1994, said Chapter was not applicable to a daughter married before commencement of the Hindu Succession Maharashtra (Amendment) Act, 1994 which came into effect from June 22nd, 2014.By the said amendment the privileged right to gain property in respect of interest in any immovable property of intestate or in any business carried on according to him or her was also given to the daughter.

The Hindu Succession (Amendment) Act, 2005 is a milestone towards women empowerment. This Act of 2005 is an effort to remove the discernment by giving equal rights to daughters in the ancestral property as the sons have. Section 6 of the amendment act has an intervening effect, so far as the constitution of ancestral, partition of a coparcenary property and succession of interest of deceased member (male or female) are concerned. It also exceeds all customs and practices of Shashtric Law in this regard.

After a long process of around 50 years, the Centre in 2005 passed the amendment Act to eradicate gender discrimination in the ancestral property. The Pre- 2005 Amendment Act or the Hindu Succession Act, 1956 was discriminatory on the grounds that women were not considered as rightful heirs to receive the ancestral property since birth like the sons.

The Central Government raised objection to the idea of giving reflective operation to the 2005 amendment law because a coparcener in Hindu family law has a right to seek partition. For the same reason, the law secured a cut-off date of December 20, 2004 to dodge reopening of any settlement or partition verdict prior to this date. The court gave reception to the 20th December, 2004 (date) as cut-off but focused on the fact that if a daughter seeks partition or a share, the same cannot be denied on the basis of an oral family settlement but on a final decree of a court or a registered family settlement. If an oral settlement is to be presented, the bench held, it has to be supported “by public documents.”

There were various changes after the 2005 amendment: –

  • The act revised the provision which excluded daughters from ancestral property.
  • Coparcener property shall be allotted to the daughter as is allotted to sons if a Hindu passes away.
  • A daughter is entitled to demand a partition of the HUF.
  • A daughter is also eligible to position of her share in the coparcenary property at her own will.
  • If the female coparcener dies before partition, then children of such coparcener would be qualified for allotment assuming a partition had taken place immediately before her demise.

There was a lot of Confusion over the applicability of Section 6 for instance, In the landmark case of Prakash and others v. Phulavati (2016), the apex court opined that “The rights of coparceners under amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of the birth date of daughters.” It simply means that If a coparcener(father) had passed away prior to Sept 9, 2005, the living daughter of the coparcener would have no right to coparcenary property in such case.

The Supreme Court in the case of Danamma v. Amar (2018), held that if the father passed away prior to date 09.09.2005 (the date on which amendment came) and a prior suit is pending for partition by a male coparcener, the female coparceners will be entitled to a share. These two cases created an era of confusion on the interpretation of Section 6 of the Hindu Succession (Amendment) Act 2005. 

Lastly, according to the recent judgment passed, the 2005 amendment Act has been declared retrospective, and daughters are given equal rights over the ancestral property of their fathers even if the father of the daughter died prior to September 9th, 2005. With this we all see a ray of light for the process of women empowerment.

child sexual abuse

Child Sexual Abuse

Child sexual abuse also called child molestation, is a form of child abuse in which an older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include engaging in sexual activities with a child such as (whether by asking or pressuring, or by other means) indecent exposure, child grooming, and child sexual exploitation, including using a child to produce child pornography.

Features that describe child sexual abuse include:

  • The culprit is typically a known and trusted caregiver.
  • Child sexual abuse often happens over many weeks or even years.
  • The sexual abuse of children frequently occurs as repeated episodes that become more aggressive with time. Culprits usually engage the child in a gradual process of sexualizing the relationship over time (i.e. grooming).
  • Incest abuse accounts for about one third of all child sexual abuse cases.

Why does child sexual abuse take place?

Till date, there isn’t a particular answer justified for this, but as per various interviews, statistics and much more it has been ruled down to a few reasons.

  • People who sexually abuse often have many victims and rarely disclose the actual motive of their abusive behaviour.
  • People who sexually abuse are tremendously resourceful in the ways that they can put blame onto victims and minimise their behaviour.
  • All sexually abusive behaviour is a matter of choice and people who sexually abuse choose to abuse by their own will.
  • Some people may be sexually attracted to children and if they act out their feelings of sexual attraction toward children that is also sexual abuse.
  • Some people may be generally sexually attracted to other adults but may sexually approach children when they are under a lot of stress, like losing a job or getting a divorce.
  • Some people who sexually abuse were victims of abuse or neglect as children.
  • Some people sexually abuse children so that they can feel the control and influence their feelings in their relationships with other adults or in their life.

Nonetheless, none of these reasons justify sexual relationship between an adult and a child. No matter what the reason for the abuse, the effects on children are severe and can last a lifetime.

In most of the situations, where children are abused it is by people who the children know. The abuser may be a parent, a grandparent, a caregiver, brother, sister, neighbour, teacher and so on. Often the person who sexually abused is in a position of trust and can take advantage of the opportunities that being trusted provides in order to sexually abuse.

Laws laid down in the Indian Constitution-

  1. The Protection of Children from Sexual Offenses Act (POCSO) came into force on November 14, 2012, and was formulated to deal with offences including child sexual abuse and child pornography. The Act through its 46 provisions increased the scope of reporting offences against children, which were not earlier covered under the Indian Penal Code (IPC). This expanded the criminal penalty for aggravated penetrative sexual assault to include punishment for abuse by a person in position of trust or authority including public servants, police, armed forces, and management or staff of an educational or religious institution.
  2. The POCSO Act defines offences of sexual assault, sexual harassment, pornography and safeguarding the interest and well-being of children. It also sets out a child-friendly procedure regarding the recording of evidence, investigation and trial of offences, establishment of special courts and speedy trial of cases. The aim of the act is to provide protection to the child at every stage of judicial process.
  3. The Constitution of India provides that the state, as a directive principle of state policy, must seek to ensure “that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”  The rights to equality, to protection of life, to personal liberty, and against exploitation are enshrined in articles 14–17, 21, 23, and 24 of the Constitution. Article 15, which protects against discrimination on various grounds, contains an important provision that “nothing in this article shall prevent the State from making any special provision for women and children.”
  4. The Policy also provides that the State shall protect all children from all forms of violence and abuse, harm, neglect, stigma, discrimination, deprivation, exploitation including economic exploitation and sexual exploitation, abandonment, separation, abduction, sale or trafficking for any purpose or in any form, pornography, alcohol and substance abuse, or any other activity that takes undue advantage of them, or harms their personhood or affects their development.
  5. Lastly, the State shall promote child friendly jurisprudence, enact progressive legislation, build a preventive and responsive child protection system, including emergency outreach services, and promote effective enforcement of punitive legislative and administrative measures against all forms of child abuse and neglect to comprehensively address issues related to child protection.

Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice Act, 2015, which received presidential assent on December 31, 2015, repealed and replaced a 2000 Act by the same name.  In September 2016, the government delivered the Juvenile Justice Model Rules, 2016, which set out some of the procedures for implementing the Act.

Section 2 enumerates definitions of the terms “child,” “juvenile”, “child in need of care and protection,” etc.  A “child” is defined under the act as “a person who has not completed eighteen years of age.” A “child in need of care and protection” is defined as

(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or

(ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or

(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or

(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or

(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or

(vii) who is missing or is a run-away child, or whose parents cannot be found after making rational inquiry in such manner as may be prescribed; or

(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or

(ix) who is found helpless and is likely to be inducted into drug abuse or trafficking; or

(x) who is being or is likely to be abused for unconscionable gains; or

(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity.

In spite of so many law reforms, there is a case of child sexual abuse almost every minute in every corner of India. One of the most highlighted case was the Unnao Rape case. The facts of the case were that a 17-year-old was gang raped and left to die. This case gained importance, after the father of the victim was arrested wrongfully. The rape survivor tried to burn herself outside the residence of Yogi Adityanath. After long court proceedings, the culprits were arrested. This case is the perfect example of sexual child abuse. A teenage girl who had her entire life ahead of her was now scarred for life.

Recently, The Protection of Children from Sexual offences amendment bill was passed. Many more reforms can be brought about, for example, meeting the survivors of the abuse and helping them and providing a better life, making a strict judiciary system for such abusers and lastly create awareness at a general level. It will take years to eradicate child abuse, but as a responsible citizen one should start from the root.

 

Grounds for Divorce Under Hindu Marriage Act,1955

According to the legal dictionary divorce means, “The legal separation of man and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.” It is a process which completely dissolves and puts a final end to a lawful marriage. It is believed that there was no concept of divorce under ancient Hindu law. Ancient Hindu law rested in a rule that “once a marriage is always a marriage”, nobody can get out of the bond, not even the death of parties may separate them or dissolve the marriage. According to Hindu philosophers, marriage is a sacrament, a divine covenant and a pure relationship.

Divorce is only permitted for grave reasons and it is definitely not encouraged in Indian society. The dissolution of marriage by a competent court means divorce. Hindu law permits divorce only on some particular grounds. Divorce is not generally favoured or encouraged by courts but it is permitted only for serious and grave reasons and divorce cannot be granted within the first year of the marriage.

Lord Blansburgh while delivering a judgement observed, “So long as divorce, in contrast with marriage, is not permitted to be a matter of agreement between parties, but the public at large are directly interested in them, affecting as they do, not only the status of the two individuals immediately concerned but not remotely when taken in the mass, the entire social structure and the preservation of a wholesome family life throughout the community.”

The idea or the concept of divorce is very old and its origin is not traceable. According to Letourneau, “divorce as an institution is the final milestone in the process of freeing the woman from the slavery of man in marital relationship”.

The grounds of divorce under Hindu Law are divided into four parts,

  1. The fault grounds or the grounds based on guilt theory of divorce.

(i) Grounds on which either of the parties may obtain the decree of divorce.

(ii) Grounds on behalf of which wife alone can claim divorce

  1. Breakdown grounds of divorce.
  2. Divorce by mutual consent.
  3. Divorce under special laws and customary laws. Section 13 of Hindu Marriage Act, 1955, provides for nine fault grounds of divorce. Some of these grounds are typically based on guilt theory or are called fault grounds of divorce, such as adultery, desertion, cruelty, insanity, leprosy, venereal disease, and then there are some grounds which are religion-based such as conversion or renunciation of world. To get the order of divorce either party has to prove at least one ground of divorce provided by the statute. In Rajender v. Anita, the court had held that a marriage cannot be put to an end or dissolved on a ground not specified under Hindu Marriage Act, 1955.

 

Adultery – According to the Hindu Marriage Act, adultery is considered as one of the most important ground for seeking divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for adultery.

The landmark judgement of Joseph Shine v. Union of India decriminalised adultery on the ground that women are not a property of men and it harmed the autonomy, dignity and privacy of women.

The concept of adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976. In the case of Swapna Ghose v. Sadanand Ghose adultery was first time taken as a ground for divorce.

Essentials of Adultery

  1. One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.
  2. Intercourse should be voluntary and consensual.
  3. At the time of the act, the marriage was subsisting.
  4. There must be sufficient circumstantial evidence to prove the liability of another spouse.

 

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. Physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental cruelty is lack of kindness which adversely affects the health of the person. While it is easy to determine the nature of physical cruelty, it is difficult to ascertain mental cruelty. The landmark judgement of cruelty as a ground for divorce was  Mayadevi v Jagdish Prasad

Desertion – If a spouse voluntarily abandons his/her spouse without any reasonable justification and without his consent for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Essentials

  1. Permanent abandonment of the other spouse.
  2. Rejection of the obligation of marriage.
  3. Without any reasonable justification.
  4. No consent of another spouse.

The landmark judement where desertion was held as a ground for divorce was Bipin Chander Jaisinghbhai Shah vs Prabhawati

Conversion – If either of the spouses converts himself/herself into another religion without the consent of the other, the other spouse may file a divorce case based on this ground. The Landmark judgment of Vilayat Raj Alias Vilayat Khan vs Smt. Sunila  where conversion was taken as a ground for divorce for the first time.

Mental Disorder/ Insanity – It can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore it cannot be expected from the couple to stay together.

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-

  1. The respondent has been incurably of unsound mind.
  2. The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

The landmark judgement of Om Prakash Gupta vs Puspa Kumari  where insanity was taken as a ground for divorce for the first time

Leprosy – Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. This disease is transmitted from one person to another. Thus, it is considered as the valid ground for divorce. A landmark judgement for leprosy is Swarajya Lakshmi vs G. G. Padma Rao

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS comes under venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered as a valid ground for divorce.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a ground for divorce.

The following are the grounds for divorce in India on which a petition can be filed only by the wife.

If the husband has indulged in rape, bestiality and sodomy.

If the person is still married but remarries another woman without giving divorce to his first wife then that stands as a ground for divorce of the first wife and the second marriage is considered void.

A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before, she attains eighteen years of age.

If there is no co-habitation for a period of one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.

 

Concept of Divorce with Mutual Consent

According to section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a mutual consent are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another.

No petition for Divorce within one year of Marriage

According to section 14, no court will entertain the petition of divorce within the one year of the marriage. But can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence etc.

Remarriage of Divorced Person

According to Section 15, after the marriage gets dissolved and no further petition was filed by either of the spouses against the order of the court and the time for appeal has expired, it is assumed that both the spouses are satisfied. After that the divorced person can marry again.

Conclusion

The Hindu Marriage Act, 1955 provides various grounds for divorce. The Hindu Marriage Act defines “divorce as a dissolution of marriage”. The main three theories related to divorce are fault theory, mutual consent concept, and irretrievable theory. In India, the fault theory works in the matter of the divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offence under the grounds mentioned above. The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic grounds on which the Hindu spouse can seek the remedy of divorce are adultery, desertion, conversion, leprosy, cruelty, heard not alive, renunciation etc. Then there are certain grounds specifically for women to seek divorce such as if she below the age of 15 then she can renounce the marriage when she attains the age of 18 etc. The Hindu married women can also apply for the maintenance which is provided under section 125 of the criminal procedure code (CPC).   So, the spouse who is innocent can approach the court and can seek the remedy of divorce.

Trial by Media

Lord Macaulay, member of the British Parliament, years ago, called the media as the fourth pillar of democracy, as it plays a very important role in shaping and influencing opinions of the people. The media serves the purpose of ‘watchdog’ over the arbitrary actions of the government. The freedom of Press comes under the ambit of Article 19 (1) (a) i.e. freedom of speech and expression. It is essential to have an independent media for a democratic society such as India. The increasing role of media was appropriately put by Justice Learned Hand of the United Supreme Court when he said that “the hand that rules the Press, the radio, the screen, and the far-spread magazines, rules the country.”

Though there are cases where the media has helped the investigation, there are cases where the media had taken the cases into their own hands and declared an accused as a convict, even before the court had given its decision. This violates the right of the person as according to our law a suspect is entitled to a “fair procedure” and is “presumed innocent till proven guilty” of a crime and these are the 2 most essential principles of most legal systems across the world.

There have been cases where the media has led the investigating agencies on the right track. Some classic positive examples of media trail would be the Jessica Lal case, and  The Priyadarshini Mattoo case.

This practice of declaring the accused as a convict even before the court had given its judgment, is called media trails. It is the widespread coverage of the guilt of the accused and imposing a certain perception about him, regardless of any of the verdict given by the court of law. Where there has been high publicity of court cases, the media has often played an important role in creating distress among the viewers, making it nearly impossible for the trial to result as a fair one. There have been reasons why the attention of the media around certain cases is sensationally high.

In today’s world it is mainly to increase the circulation and TRP of newspapers and news channels. Due to this the media has forgotten the fundamental difference between an accused and a criminal. It has the power to influence the masses by portraying an innocent as a culprit thereby changing perceptions. Due to this reason, various Judges of Court have criticized the trial by media as it leads to psychological variation while giving any degree. Though media trial has exposed many high-profile cases such like Jessica Lal Murder, Article 19(2) provides reasonable restrictions.

A classic example of negative side of trail by media could be the Aarushi Murder case the media manipulations changed every single day and proclaimed Aarushi’s parents as her murderer’s. However, CBI didn’t find any clue and the court’s final sentence came after many years. Media has been termed as a magic bullet that directly hits the minds of the people as before the final judgment of the court where everyone had accused Aarushi’s parents for her murder. Even in the 2002 Godhra riots, Narendra Modi was accused by the media for killing Muslims in Gujarat. However, in year 2014, the High Court of Gujarat gave Narendra Modi a clean chit in Godhra riots but, still most of the people believed that he was behind Godhra Riots. Media Trial causes the reputation, respect and dignity to suffer even after one have been proven innocent. In many instances, the media has overlooked the ‘contempt of court’ that clearly punishes the one who interferes and arbitrates in the matters of court.

Media Trial can sometimes become a problem for fair trial when there are two conflicting ideologies. A media trial can be partial to a side of the party thereby influencing the view of the people. This, in turn, pressurises the court. At times media trials create so much of pressure on the lawyers, not to take the case of a party, which forces the accused party to go through the trials without having any defence which is his right.

Granted that the media should be bold and powerful and is often useful in exposing scams and bring changes but there is adverse effect of media trial on the reputation of a person in the society even if he is not guilty. Media should maintain its code of laws and ethics, social responsibility and credibility by not interfering in the matters of court so early which would affect the fair trial. A recent example can be that of the Sushant Singh Rajput Death Case and Rhea’s involvement in the case. Though the role of media is applaudable but now it has been  over 3 months but the media houses still showing the same case day in and day out and in the wake of showing Sushant Singh Rajput’s case, the media houses have pushed back the other important issues which were of national importance such as the Farmers Strike against Farmer Bill 2020, Raise in Corona cases in India etc.

I believe that the media houses instead of conducting media trial should do the research and keep a check on high profile cases to find the evidences and keep it with them until and unless they find the truth hasn’t prevailed.

Yes, I agree that that the role of media in important in the 21st century where violence, crime & corruption are at its peak and where human life is not priceless anymore but many a times media trail just influences people and promote their own agenda. At the end of the day media trail are undesirable and should be avoided at all cost. Media organizations, under the guise of “hardcore journalism”, sensationalize carefully and strategically picked cases in order to increase their TRP. The media’s portrayal goes a long way in influencing public opinion, and even judges’ decision gets subconsciously manipulated. An important factor here is the pattern of media ownership which decides what the media focuses on and what it ignores. Even the Supreme Court, which has always been a supporter of freedom of press and the media, was concerned about the issue of media trials, and eventually set guidelines on how the media can report on-going trials and cases. The importance of a free press and a strong media in a true democracy is undeniable. It is very important for a democracy to have an effective media in place. The media has a lot of power in its hands, and if this power is misused, it can cause a great damage to the nation. There is no external body can be set up to keep a check the media as that would be considered as a threat to the freedom of press. So, the entire responsibility falls on the media professionals themselves to check themselves and ensure that they are not influencing people. At the same time, the people should also be more aware and understand fact from fiction.

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History of Homosexuality in India

Widespread pride parades, openly addressing and educating people about the LGBTQ+ community and films like Shubh Mangal Zyaada Savdhaan making big bucks in the box office is proof that there has been change in the non-confrontational attitude of Indians towards sexuality and gender diversity. Although this marginal change is welcomed, it is not expected to be received well by different sections of society.

Why is homosexuality considered blasphemy in our country while the Kamasutra has an entire chapter dedicated to homosexuality? Ancient records show that homosexuality has been prevalent since centuries, and was not considered unnatural. One of the oldest Hindu scriptures, the Rigveda, which states “what seems unnatural is also natural”, recognizes and accepts homosexuality.

After the British Raj was established in India in the eighteenth century, modern day homophobia spread- an individual could be prosecuted based on sexuality and gender. Under Section 16 of Article 377 of Indian Penal Code, having intercourse with a person of the same gender was a criminal offence and one could be penalized for the same.

Post-independence and the establishment of Right to Equality under Article 14, homosexuality was still classified as a crime. The first known pride parade was held in India on 11th August, 1992. In 1999, Kolkata hosted India’s first Gay Pride Parade. The parade, with only 15 attendees, was named Calcutta Rainbow Pride. In 2009, a landmark Delhi High Court decision in the Naz Foundation v. Govt. of NCT of Delhi case held that treating consensual sex between two adults is a punishable offence.

In 2013, the Suresh Kumar Koushal and Anr. vs Naz Foundation judgement was a step behind in the journey of decriminalizing homosexuality. A two-judge Supreme Court bench consisting of G. S. Singhvi and S. J. Mukhopadhaya overturned the Delhi High Court case of Naz Foundation V. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. On 24 August 2017, the Supreme Court of India held that the Right to Privacy is a fundamental right protected under Article 21 and Part III of the Indian Constitution. The judgement mentioned Section 377 as a “discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.” In the judgement delivered by the 9-judge bench, Justice Chandrachud held that the rationale behind the Suresh Koushal (2013) Judgement is incorrect, and the judges clearly expressed their disagreement with it. They further elaborated that the Right to Privacy is essential for each individual, including marginal groups that form a miniscule part of society.

In 2013, a five-judge bench of the Supreme Court consisting of chief justice Dipak Misra and justices Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman started hearing the challenge to constitutionality of Section 377. The Union Government had made its stand clear on homosexuality by advocating for gay rights and left the judgement to the “wisdom of the court”. The Petitioners invoked the right to sexual privacy, dignity, right against discrimination and freedom of expression to argue against the constitutionality of Section 377. After hearing the Petitioners’ plea for four days, the Court reserved its verdict on 17th July 2018. The Bench pronounced its verdict on 6 September 2018. Announcing the verdict, the Court reversed its own 2013 judgement of restoring Section 377 by stating that using the section of the IPC to victimize homosexuals was unconstitutional, and henceforth, a criminal act.

The LGBTQ+ community is not warmly received in India and facing discrimination and subjugation during rudimentary activities is not uncommon. Even in 2020, bullying, harassment, name calling, physical abuse, etc. of homosexuals and transgenders goes unaddressed in educational institutions, the workplace and for that matter even their residence.

Tyrannizing or oppressing a student based on sexuality or gender is prohibited under UGC Regulation on Curbing the Menace of Ragging in Higher Educational Institutions (Third Amendment), 2016. The offenders can be expelled or even prosecuted depending on the degree of harm caused. In December 2018, Jagdambika Pal of the Bhartiya Janta Party introduced a bill to the Indian Parliament to amend the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 that allows LGBT people to serve in the Armed Forces.

Even after decriminalizing of gay sex, same gender marriage is a completely different ballpark and a greater challenge in our country. The LGBTQ+ community is working optimistically towards the legalization of same sex marriages. There are numerous incidents of same sex marriages in India- and all of them have ended terribly, with the couples not receiving family approval and getting persecuted by their community, harassment by cops and society, threat to their livelihood and life. Many of these couples end up committing suicide due to the trauma or are killed by their families.

India does not recognize same sex marriages. All States and Union Territories except Goa don’t have a unified marriage code, and marriage laws apply depending on your religion. A few weeks ago, Abhijit Iyer Mitra, Gopi Shankar M, Gita Thadani and G Oorvasi of the LGBTQ+ community contended that the Hindu Marriage Act, 1955 draws no distinction between heterosexual and homosexual marriage. In response, the Solicitor of India Mr. Tushar Mehta stated that same sex marriages are ‘not a part of our culture’ and is against the laws. He noted that he had not been directed to do so by the Centre, and he was only promulgating his reading of the Hindu Marriage Act.

The journey ahead is long and arduous, but the youth are prepared for this. We need to bring change, and we need to do it soon. Everyone deserves to feel secure and have their relationship recognized, irrespective of sexuality.

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The Right to be Forgotten: Data Privacy Laws in India

In 2010 Mario Costeja González, filed a complaint with the Agencia Española de Protección de Datos (AEDP), the Spanish Data Protection Agency, against a local newspaper and Google Spain for claims relating to auction notices mentioning González published in 1998.
The notices concerned real estate auctions held to secure repayment of González’s social security debts. González contended that these pages were no longer necessary because “the attachment proceedings concerning him had been fully resolved for several numbers of years and that reference to them was now entirely irrelevant.” He sought to have the articles in the newspaper, as well as the links to them on Google, removed since they were no longer relevant and could tarnish his social standing and affect employment opportunities.
The AEDP dismissed the plaintiff’s claims against the newspaper but allowed those against Google.

In an appeal by Google, the European courts and the European Court of Justice held that the operators of search engines fall under the definition of ‘controller’ under Article 2(d) of the Directives. Further, the courts also confirmed the individual’s ‘Right to be Forgotten’ if the personal data concerning him/ her is no longer needed for which it was collected.

This case led to the creation of a new right: The Right to be Forgotten. It falls under data protection laws and is imperative when everyone has easy access to unfiltered information. It is the right to have private information about a person be removed from Internet searches and other directories under some circumstances. It stems from the need for individuals to have certain information about themselves erased for fear of being stigmatized or associated with an action done in the past, which might have no relevance with their present life.
The B.N. Srikrishna Committee report has laid significant emphasis on obtaining the consent of an individual to process and use personal data. The committee said consent must be “informed”, “specific” and “clear”, and needs to be capable of being withdrawn as easily as it was given. The draft Personal Data Protection Bill, 2018, has a section on the Right to be Forgotten. Section 27 of the bill has listed out three scenarios in which an individual will have the “right to restrict or prevent continuing disclosure of personal data” or the right to be forgotten, in a sense.
For exercising the said right, the ‘data principal’ shall have to file an application form before the Adjudicating Officer appointed under Section 68. The power to make rules, regarding how the application is to be filed, vests with the Central Government.
The ‘Right to be Forgotten’ under PDP Bill can only be exercised if the Adjudicating Officer satisfies that the said right overrides the Right to Freedom of Speech & Expression and the Right to Information of other citizens of India. The factors to be taken into account by the Adjudicating Officer before making any such order are the sensitivity of personal data, data principal’s role in the public sphere, relevance of personal data to the general public etc.
In a recent case, Justice Anand Byrareddy of the Karnataka High Court quietly delivered a landmark judgement in which he ruled that a woman whose name featured in a criminal complaint order filed during a marital dispute had the right to be forgotten.
The woman’s father, the petitioner, argued that an earlier court order, which revealed his daughter’s name in the case title and elsewhere, could lead to friction with her husband with whom she had since reconciled. However, he delivered that her name shall not be removed from the High Court website.
The Gujarat High Court delivered a contrast judgement in Dharamraj Bhanushankar Dave v/s State of Gujarat & Ors. In this case, the petitioner through a writ petition under Article 226 of the Constitution, prayed before the court for restricting the disclosure of a Hon’ble court’s judgment published by the respondent on the internet. The case of the petitioner was that initially, he was an accused of offences like criminal conspiracy, murder etc. in a complaint filed before the Jamnagar Police Station. Though the said judgment was non-reportable, the respondent published it on the internet which is hampering the petitioner’s personal and professional life.
Referring to its rules, the Gujarat High Court held that copies of the judgment of the High Court can be given to any party by the order of Assistant Registrar.
Further, the court also held that the petitioner has failed to prove any violation of Article 21 of the Constitution and in such way, the Gujarat High Court did not recognize the ‘Right to be Forgotten’.

India needs to amend its Data Privacy Laws, and this needs to be done soon. Citizens should be able to monitor information about themselves and who has access to it. We should be able to have personal data about ourselves taken down without having to approach a court. Going through Courts is a cumbersome process and each one might not have required resources for the same. A standard method of writing to the concerned entity to redact certain parts should be established for ease of citizens. For the cases that are published for academic purposes, the permission of the petitioner and respondent must be taken before broadcasting personal details; censorship of name and address is another viable option.
Its high time that we realise that the privacy and safety of citizens are above the profits of companies and news houses. Privacy laws need to be tightened to the extent that third parties don’t have ingress to case information, especially for civil cases. India needs a robust data protection regime so strict action can be taken in case the privacy of citizens is violated. The urgency of policy reform can be faltering when we consider all the factors as discussed above. Data Protection Committee Report has made a point that granting a right to erasure under ‘Right to be Forgotten’ can hamper the other rights of the people of India like the right to know, freedom of press etc. which is to an extent is a correct position in a country like India. Courts all over the country have different opinions about this.

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Right to Dignity

The word dignity comes from the Latin word dignitas, which means “worthiness”. Dignity suggests that each individual is worthy of respect. Dignity is a fundamental right provided to the citizens of India. With the surge in awareness about an individual’s rights there has been an evolution in the fundamental rights provided to every citizen of India. One such is Right to Dignity.

A] What do we mean by dignity?

Dignity has always had a critical relationship with caste, sex, class and gender. India is a country which is home to all kinds of traditions. It welcomes all kinds of castes, classes etc. Dignity means freedom to live in health and peace. Every human life is valuable and beautiful. We must pay respect to one’s human dignity. Thus, it is collectively recognised as the moral vision for the society.

B]What is right to dignity?

As Article 21 of The Indian Constitution suggests,

No person shall be deprived of his life or personal liberty except according to a procedure established by law.

It discloses that, the clarification made by the Supreme Court for widening the scope and ambit of Article 21 has resulted a law of human right. To reference that this jurisprudence is now part of human dignity. The court has understood in such way a that, the right to life includes a dignified life in the landmark judgement of OligaTellis v. Bombay Muncipal Coroporation and others.

The judgement includes many more things about dignified life. So, in a way, scope of right to life has been expanded and given wider connotation to it and within its amplitudes the courts have covered many more rights. Hence, right to life includes anything which is essential to live life with dignity.

India has been growing immensely. We are now in the 21st century where everyone is well informed about their rights and duties and how the law functions. Females, in today’s time are still struggling for their basic rights. There have been so many instances where a women’s dignity is just a word and not taken seriously. Rape, honour killings, female infanticide and sexual objectification, women have been through it all. Women have always been deprived of their right to live with dignity.

C]There are two notions of Dignity laid down: –

  1. Right to Live with Dignity-

Everybody has the right to life, liberty and peace. Right to life is the most valuable fundamental right amongst all other human rights.  Constitution has not given any detailed provision about human dignity. Article 21 of Constitution of India implies that right to life has a wider meaning which includes the right to life with human dignity. It is a fundamental right without which we cannot live as human beings and includes all those aspects of life which go on to make a man’s life meaningful. Former Chief Justice of India,J. S. Verma categorically expressed his views about right to live with human dignity, as “the right to life is recognised as a fundamental right under Article 21 of the Constitution of India.”

In the landmark judgement of Kharak Singh v. State of Uttar Pradesh the court held that the expression ‘Life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence. Under Article 21 of Constitution it is stated that a right of a person to be free from any restriction or encroachment where directly or indirectly imposed on individual. The Supreme Court emphasized that, the right to life under Article 21 must be guaranteed to Indian citizens beyond just the life of an animal to include the needs of a human being.

In the landmark judgement of P. Rathinam v. Union of India, The term Life has been defined as ‘the right to live with human dignity and the same does not connote continued drudgery, it takes within its fold some of the graces of civilization which makes life worth living and that the widened concept of life would mean the tradition, culture and heritage of the concerned’.

Development of Life to Dignity

The Supreme Court did an interpretation of Article 21 of the Constitution, the Apex Court evolved number of new fundamental rights available as part and parcel of right to life enriched in Article 21. Apex court interpreted right to life very narrowly for almost three decades spanning between 1950 and 1977, wherein, in the landmark judgment of Supreme Court in A. K. Gopalan v. State of Madras it was held that, the right to life under Article 21 was mutually exclusive of the fundamental freedoms guaranteed under Article 19 of the Constitution. This means that Article 19 was not applying to a law affecting personal liberty to which Article 21 would apply. It was further stated in the A. K. Gopalan Case that a law affecting right to life and personal liberty could not be declared unconstitutional on grounds of its failure to guarantee natural justice or due procedure. Therefore, a law prescribing an unfair and arbitrary procedure could deprive a citizen of his or her right to life and personal liberty as long as such law was enacted by a valid legislature. It is observed that, the expression personal liberty means only liberty relating to or concerning the person or body of the individual. Justice Mukherjea in the case of A.K. Gopalan observed that, personal liberty is the anti-thesis of physical restrain or coercion.

2] Right to die with dignity: –

On March 9, 2018, The Supreme Court upheld the right of a person to die with dignity. It was stated that it is now possible for all adults to make an advance directive specifying to their near and dear ones whether they would like to refuse the treatment or take the treatment provided.

Right to die with dignity is a part of right to live with dignity. It also means that a dignified death will be something earned. Someone who lives a good life, lives honourably, will die in that way. For the rest of us, death with dignity will be, like life with dignity, something to aim for, but only partially to attain. Similarly, unbearable (and uncontrollable) pain or other suffering may undermine someone’s ability to reason and to choose and, hence, to die with dignity.

Conclusion- We all are the same in the eyes of law.Right to life is a fundamental right gifted to all by the Constitution of India. Dignity should not be fought for; it is everyone’s right and should be treated in the same way. It’s only the law that can protect it because dignity is something which can’t be codified.