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Month: April 2023

Jury Trial in India

Trial by Jury in India was one of the indications of the Western Innovations. The earliest form of justice mechanism known to the Indian community was Panchayat wherein a sarpanch presides over the disputes and other panch participate in the decision making process.  These people were chosen from the caste, tribe, trade or locality to which the parties belonged. The jury trial, which was introduced for the first time, was partial, unjust and decided by an English Jury. At first the British accepted the criminal law of the country as they found it. However, later, Lord Bryce stated that it was inevitable that the English should take criminal justice into their own hands and also they should alter the Penal law in conformity with their own ideology.

Jury Trial in India

The Trial by Jury of capital crimes committed by the Company’s servant was enacted by an Ordinance of James I dated 1623/4, and jury trial became the rule for criminal trials on the original side by the Supreme Court in Calcutta. After the transfer of power from the East India Company to the Crown, jury trials were established tentatively in the Sessions Courts under the Criminal Procedure Code of 1861. The Code of 1861 provided no appeal from a conviction except on a question of law, and no appeal against an acquittal.

A new Criminal Procedure Code came into effect in 1872 which repealed the Act of 1861 and introduced the following main alterations in the procedure:

a) The minimum number of jurors in session’s trials were reduced to three.

b) It was enacted that if the court disagrees with the verdict of the jurors or of a majority of the jurors, and considers it necessary for the end of justice, it may submit the case to the High Court.

c) The local government may direct an appeal from an order of acquittal.

Thus, the courts in India have always been reluctant to go the full length to disregard the jury’s finding altogether when the trial judge has disagreed with the verdict and referred the case. Such an interference with the verdict can only be done only when the judges are certain that the verdict is wrong.

Act X of 1882 fixed the number of jurors in the High Court at nine and retained a minimum of three for Sessions Court. However, the 1898 Act laid down the number of jurors at nine for the High Court and nine in a Sessions Court.

The preponderance of opinion is in favour of the view that on a reference the High Court should not reverse the verdict of the jury unless it is in some way perverse or unreasonable.

On the other hand, another school of thought, relying more strictly on the letter of the law, have held that that the High Court can review the whole case and substitute their own opinion for that of the jury.

The first law commission of Independent India was setup in 1955 and was given the task of suggesting comprehensive reforms to judicial administration in the country including measures to be taken to secure improvements and efficient working of efficient working of the jury system. The law commission carried out an in-depth examination of the various pros and cons of the past functioning  of the jury system  in India,  its merits and demerits, recorded evidence and submitted a comprehensive report i.e. 14th report of the Law Commission.[4] The problems listed by the report were briefly:

  1. Not adopted over a large part of the country
  2. Application restricted to certain class of offences.
  3. Constitution did not provide for the same

Thus, the findings of the 1958 law committee report clearly stated and recommended that jury system was a failure and should be abolished.

Jury Decisions Overturned by Judges in India: Abolishment of Jury Trial :

In the case of Sheo Swarup and others v. The King Emperor, the Privy Council held that there should be no limitation placed on the power of the High Court, unless it be found expressly stated in the Code, and there is nothing to prevent the application of the same principles to appeals from an acquittal by a jury.

In Abdul Rahim v. The King Emperor, the Board had to consider whether the High Court was empowered:

1) When it is found that inadmissible evidence has been admitted in a jury trial

2) When it is found that there have been serious instances of misdirection and non- direction of a jury.

In deciding both these questions, the Board referred to Section 537 of the CrPC and Section 167 of the Indian Evidence Act 1872, which operate to restrain appellate courts from interference either on the ground of misdirection or of improper evidence unless it has occasioned a miscarriage of justice.

In Ramanugrah Singh v The King Emperor, (1946) 48 BOMLR 768 the Board referred to Section 307 of the Criminal Procedure Code which states two conditions:

1) The judge must disagree with the verdict of the jury calls for no comment since it is obviously the foundation for any reference.

2) The judge must be ‘clearly of the opinion that it is necessary for the ends of justice to submit the case’

The Nanavati case , AIR 1962 SC 605, is a famous jury trial which was overturned by the Bombay High Court. One day Nanavati returned home and found his wife aloof. While questioning her, she confessed of the affair. Nanavati went to the naval base, collected his pistol on a false pretext from the stores along with six bullets, completed his official duties and proceeded to Prem Ahuja’s office. Three shots were fired and Prem Ahuja dropped dead. Nanavati headed straight to confess to the Marshal of the Western Naval Command and, on his advice, turned himself over to the Deputy Commissioner of Police. The contention in the Jury trial was whether Nanavati shot Ahuja in the ‘heat of the moment’; or whether it was a premeditated murder. In the former scenario, Nanavati would not have been charged under the IPC for culpable homicide, with a maximum punishment of 10 years. This is because he could have invoked exceptions 1 and 4 of section 300 of IPC. The jury in the Greater Bombay Sessions Court held him not guilty. However, The High Court agreed with the prosecution’s argument that the murder was premeditated and sentenced Nanavati to life imprisonment for culpable homicide amounting to murder. On 24 November 1961, the Supreme Court of India upheld the conviction.

Conclusion :

In the world of increasing alternate methods of dispute resolution, plea bargain, mediation, the practice of resorting to lay person i.e. jury members without any legal knowledge is reducing. India and the United States of America have certain different approaches to the jury system. The major difference between the jury systems is the distinction between civil and criminal. In India, mostly criminal matters were confronted to the jury however, the seventh amendment in the US inculcated jury trial even for civil proceedings. In India, in cases when there was a disagreement with the jury decision the blanket right to approach the High Court was given like in the Nanavati Trial case. This case abandoned any further trial by Jury in India. In US, in a civil trial, a judge may set aside the verdict regarding how much money the jury should award to the plaintiff in punitive damages. And, in case of criminal cases, judges may disregard a jury’s guilty verdict and acquit or grant a new trial if they believe the evidence was insufficient to support the decision made by the jurors. In India a blanket right to approach the High Court is given to the party. However, in the US if the court is not satisfied with the decision it voids it.

Thus, for India, the concept of Jury trial was never a star player. It appeared in midst of colonial pressure and discriminated against the Indians, acted as a lenient mechanism for accused Englishmen for atrocities committed by them. 

Encounters/Custodial Violence and the Role of the Courts : Few Leading Authorities

Custodial violence primarily refers to violence in police custody and judicial custody. Custodial violence, which includes torture, death and other excesses in police custody or prison.

In 2020, the Supreme Court asked the Government’s response pertaining to the implementation of Section 176(1A) of the CrPc, which calls for mandatory judicial inquiry related to incidents of deaths, disappearance, rape, etc. in judicial custody.

Custodial Violence – Key Points

  • Custodial violence is the violence that takes place in judicial and police custody where an individual who has done a crime is tortured mentally or physically
  • Most of the custodial deaths were attributed to reasons other than custodial torture, which included suicide and death in hospitals during treatment
  • One of the biggest issues with custodial violence is that it has put human rights at stake. This crime is an outburst against humanity and is one of the many root obstacles in a Democratic country
  • Although, overcrowding, malnutrition, unhygienic conditions and lack of medical care are some of the factors of death in police and judicial custody, but custodial violence remains the common cause of deaths in prisons and lock-ups
  • Many human rights activists and social workers have found that the worst violations of human rights take place during the course of an investigation when the police, with a view to securing evidence or confessions, often resort to third-degree methods including torture and techniques of arrests by either not recording them or describing the deprivation of liberty merely as “prolonged interrogations”

Types of Custodial Violence

There are different types of custodial violence. Discussed below are the same:

  • Physical Violence
    • Through physical force or bashing which may lead to the exhaustion and fear of death
  • Psychological Violence
    • Not providing correct information and mentally torturing them. This may also be done through humiliation and threats
  • Sexual Violence
    • This may include verbal sexual abuse and humiliation of one’s dignity. This may leave a long-lasting psychological impact on the victim.

Legal Provisions for Custodial Violence in India

The following provisions were enacted to curb the tendency of policemen to resort to torture to extract confessions, etc.:

  • Sections 330, 331 & 348 of Indian Penal Code (IPC)
  • Sections 25 & 26 of the Indian Evidence Act
  • Section 76 of Code of Criminal Procedure (CrPC) and Section 29 of the Police Act, 1861

Other important constitutional provisions are as follows:

  • Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution
  • Section 41 of the Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation
  • Article 21 of the Indian Constitution provides that no person shall be deprived of life or personal liberty except according to the procedure established by the law

Indian Police Act, 1861:

  • Sections 7 & 29 of the Police Act, 1861 provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same
  • Role of State Government:
    • Police and public order are State subjects as per the  7th Schedule of the Constitution of India.
    • It is primarily the responsibility of the state government concerned to ensure the protection of human rights.
  • Role of Central Government:
    • The Central Government issues advisories from time to time and also has enacted the Protection of Human Rights Act (PHR), 1993.
    • It stipulates establishment of the NHRC and State Human Rights Commissions to look into alleged human rights violations by public servants.

Case Laws:

1. D.K. Basu v. State of West Bengal 1997 : Laid down 14 guidelines regarding custodial torture and police brutality ( Also read : https://lawwire.in/custodial-death/ )

  • “….Transparency of action and accountability perhaps are two possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. “

2. Om Prakash and Ors. v. State of Jharkhand 2012 : Police and State Authorities vis-a-vis Extra-Judicial Killings

  • “….It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court [The Hon’ble Supreme Court] has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism”

3. People’s Union of Civil Liberties (PUCL) v. State of Maharashtra 2014 : 16 point guidelines were laid down as the “standard procedure to be followed” for thorough, effective, and independent investigation in the cases of death during police encounters

i) Any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence must be recorded either in writing or electronic form
ii) If encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and forwarded to the Court under Section 157 of the CrPC, whilst following the procedure u/s. 158
iii) The investigation, as far as such death is concerned shall be conducted by an independent CID/ a police team of ANOTHER police station
iv) Mandatory magisterial inquiry (under Section 176 of the CrPC) into all cases of encounter deaths MUST be held and a report thereof must be sent to the Judicial Magistrate
v) The information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be
vi) Medical Aid to be provided to the criminal/victim
vii) No delay shall be caused in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
viii) To ensure the trial to be carried out expeditiously, a report shall be sent to the competent court under Section 173 of the CrPC post investigation
ix) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest
x) Bi-annual statements of all encounter killings MUST be sent to the NHRC by the DGPs ( set date + format )
xi) Disciplinary Action, where death is caused by a firearm amounting to an offence under the Indian Penal Code, 1860 SHALL be promptly initiated and the said officer be placed under suspension
xii) Victim Compensation Scheme (Section 357-A of the CrPC) to be invoked/extended for the benefits dependants of the dead
xiii) Subject to Article 20 of the Constitution, the concerned police officer(s) MUST surrender their weapons for forensic and ballistic analysis
xiv) An intimation about the incident must also be sent to the police officer’s family and legal aid services to be offered
xv) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers SOON after the occurred
xvi) Lastly, the family of the victim may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident if aggrieved by the (lack) of abovementioned procedure followed by the Police

Formation of a company

A company may be formed in three ways under section 3 of the companies Act, 2013:

  1. Private Company– Section 2(68) of the companies Act gives the definition of private company. A private company is any company which (1) restricts its member’s right to transfer their shares (2) limits the maximum number of members to two hundred and (3) most importantly prohibits any invitation to the public to subscribe for any of its shares. It can be formed with two or more persons as members.
  2. Public company– Section 2(71) of the Companies Act defines Public company as any company which is not a private company. It can be formed as seven or more persons as members.
  3. One Person Company– Section 2(62) of the Companies Act defines One person company as any company which has only one person as a member. 

STEPS REQUIRED FOR THE INCORPORATION OF A NEW COMPANY


Incorporation is a legal process used to form a Corporate entity or a Company. It involves drafting of legal documents that list the primary purpose of the business its name and its location and the number of shares and class of stock being issued, if any.
The Companies Act, 2013, lays down the following rules for the incorporation of both the public as well as private Company. As per section 3 of the Companies Act, 2013, in case of Private Company at least 2 members are required, whereas in Public Company, 7 persons are required and in case of One person Company, 1 person is required.
Step-1
Filling the proposed name of a Company for approval to the Registrar of the Company (ROC)
According to sec. 4(2) of the Act, a Company cannot be registered with identical name or resemble too nearly to the name of an existing company registered under the Act.

As per section 4(4) of the Act, the person can make an application to propose the name of the Company to be registered with fees as may be prescribed.
Upon receipt of the application, the Registrar on the basis of information and documents furnished along with the application, may reserve the name for a period of 20 days from the date of approval of the said application. Provided that in case of change of name by any existing company, the Registrar may reserve the name for a period of 60 days from the date of approval.
Step -2
Obtaining Director Identification Number As per sec. 153 of the Act, every individual intending to be appointed as Director of the Company shall make an application for allotment of Director Identification Number in form DIR 3 to the Central Government with prescribed fees.
Step- 3
The Company must have to select the name of persons who will act as Director.
Step-4
Drafting of Memorandum of Association (MOA) The Memorandum of Association is the Constitution of the Company
which must contain the basic information of the Company. The purpose of MOA is to enable the members of the Company, its creditors and the public to know what its powers are and what is the range of its activity.
A pr Rule 13 of the Companies (incorporation) Rules, 2014, Memorandum of Association must be signed by every subscriber along with address, description, occupation, if any, in the presence of atleast one witness who shall attest the signature and shall likewise sign and add his name, address, description and occupation, if any.

The memorandum of association of a company shall contain the following particulars under section 4 of the companies Act, 2013:

  1. Name of the company
  2. State in which registered office of the company is located
  3. Objects for the formation of the company
  4. The liability of all the members of the company
  5. The amount of shares with which the company is to be registered and the names of the members subscribing for the shares of the company
  6. In case of one person company, the name of the person, who will become the member of the company in event of death of the subscriber

Step- 5
Drafting of Article of Association (AOA)
Article of Association which is an important document explain the operation of the company, purpose for which Company is incorporated along with the information for the process of appointment of Directors and also management of the financial record of the Company

The articles of the association of the company shall contain the following particulars under section 5 of the companies Act,2013:

  1. Regulations for the management of the company
  2. Provision for entrenchment to the effect that the certain provisions of the articles may be altered only when conditions and procedures as restrictive as special resolutions are complied with
  3. The provision for entrenchment may be added either at the time of formation of the company or by a special resolution in case of a public company and an amendment in the articles agreed to by all the members, in case of a private company.

Step-6
Registered Office As per section 12 of the Companies (Amendment) Act, 2017, the Company on and from 30 days of its incorporation and at all time thereafter must have registered office capable of receiving and acknowledging all communication and notices as may be addressed thereto. The Company shall furnish to the Registrar verification of its registered office within a period of 30 days of its incorporation in such a manner as may be prescribed.
Step- 7
Application for Incorporation of a Company According to section 7 of the Companies Act, 2013, an application shall
be filed with the Registrar within whose jurisdiction the registered office a Company is proposed to be situated in Form no. INC.2 (in case of One person Company) and Form no. INC. 7 (in case of public and private Company) along
with fees as provided in the Companies (Registration office and fees) Rules, 2014 for registration of a company.
Step-8
Issue of certificate of Incorporation
The Registrar, on the basis of the documents and information filed, shall register the name of the Company and issue a certificate of incorporation in the prescribed form (FORM no. INC-11) to the effect that the proposed Company is
incorporated under this Act. On and from the date mentioned in the certificate of incorporation issued, the Registrar shall allot the Company a Corporate Identity Number (CIN) which shall be distinct identity for the Company and which shall also be included in the certificate.

In order to form a new company, the promoter shall furnish the following documents with the Registrar of Companies within whose jurisdiction the registered office of a company.

  1. Memorandum and Articles of Association of the company
  2. A declaration by the director, manager or secretary of the company and from each of  the subscribers to the memorandum that all the requirements of this Act in respect of registration has been complied with and contains information that is correct and complete.
  3. Address for correspondence, particulars of name and other particulars of every subscriber to the memorandum along with proof of identity.

Apart from furnishing the above mentioned documents, the registrar of companies may ask for any other information as may be required by him for satisfying himself with respect to the authenticity of the promoters and the company. 

Constitutional Provisions for Environmental Protection in India

The Indian Constitution establishes a distinctive federal system for the country. It is a large piece of law that lays forth the Directive Principles of State Policy that the legislature should keep in mind while enacting legislation in addition to giving shape to the dreams of freedom fighters by emphasizing fundamental rights. The division of topics on which the Union and State governments may pass laws is outlined in detail in Part XI of the Constitution, which deals with legislative relations. This section of the article discusses the various sections of the constitution’s environmental provisions.

Preamble to the Indian Constitution

The Indian Constitution’s Preamble, which begins with “We the People,” lays forth the Constitution’s purposes and objectives. A Sovereign Socialist Secular Democratic Republic is proclaimed for India. It has been declared to be a key to the constitution’s creators’ minds.i Even though the 42nd Amendment later added the words “Secular and Socialist” to the Constitution, the document already had a secular and socialist foundation. The Constitution has several articles that address the socialist and secular structures of the country, with Part IV placing emphasis on the socialist mode of government and Part III defining the secular structure of the nation.

When Part IV of the Indian Constitution is read in connection with the word socialist, it is clear that the Constitution adopted a welfare state with socialism as its primary model. Social welfare is impossible if individuals are made to live in filthy conditions that put their health and life in danger. The phrase “Democratic Republic” emphasizes the idea that the people have a right to participate in the political process and that the government should work for their welfare. This suggests that the government will work to ensure that there is a clean environment that is fit for human habitation in addition to other things.

Right to life and Environment Protection 

The constitutional right to life is protected under Article 21. According to this, no one’s right to life or personal liberty may be taken away from them until legal procedures are followed. According to one interpretation, the phrase “except in accordance with procedures established by law” means that this rule is subject to exception and is governed by legislation, which differs from instance to case.

In addition to the basic essentials of life, such as food, shelter, clean water, and clothing, the right to life also encompasses the right to live in dignity. The right to life includes the ability to live in a decent and safe environment free from danger to one’s life. The surroundings must be free of illnesses.

According to the ruling in Charan Lal Sahu v. Union of India, the state has a responsibility to take reasonable and decisive action to uphold and defend constitutional rights protected by Articles 21, 48-A, and 51-A(g).

Right To Equality and Environmental Protection

Article 14 of the Constitution guarantees everyone equal protection under the law as well as equality before the law. The state cannot violate article 14 since this fundamental right implicitly imposes an obligation on it to act fairly while pursuing environmental protection measures. The judiciary has played a stringent role in prohibiting the arbitrary sanction in cases where state authorities have used their arbitrary powers. The fundamental right to equality of all persons is violated when discretionary powers are used without considering the needs of the general public.

Freedom of Speech and Expression and Environment 

Article 19(1)(a) of Part III of the Constitution specifically mentions the right to free speech and expression as a basic right. As in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, where people complained about the violation of their right to a clean and safe environment and a right to livelihood, there have been numerous instances where people have approached the court through speech and by expressing themselves in writing.In India, the media has been playing a crucial role in moulding the perception of people in issues relating to the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the press as well. 

Freedom of Trade and Commerce and Environmental Protection 

According to Article 19 (1)(g) of the Constitution, every Indian citizen has a basic right to practice any profession, business, trade, or commerce at any location in Indian territory. However, as this is not a universal right, there are certain fair limitations. This basic right to avoid environmental hazards is subject to a reasonable restriction as set forth in Article 19(6) of the Constitution. The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot cause harm to the environment.

Fundamental Duties of Indian Constitution:

Part IV A of the Constitution of India inserted by Constitution (Forty-second Amendment) Act, 1976 imposes duties upon very citizen of India. Article 51A casts eleven duties upon the citizens of India.iv Article 51A(g) casts the following duty upon the citizens of India To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Directive Principles of State Policy

Guidelines for State Policy are outlined in Part IV of the Indian Constitution. They specify the nation’s socioeconomic objectives. Although Directive Principles are not subject to the law, Article 37 declares them to be essential to the nation’s government. There was no explicit clause in Part IV that dealt only with the environment prior to the 42nd Amendment.
The provisions entrenched in Articles 38, 47, and 50 read with Article 37, however, can be used to infer the Indian Constitution’s intention to safeguard the environment.

Legislative powers and matters of  environmental protection

The Indian Constitution recognizes three different lists: concurrent, state, and union. At the state and union levels, the government’s authority is divided. State government handles matters of state list, while central government handles matters of union list. As a result, only the Parliament has the authority to pass legislation regarding list I, which is the list of topics of union. The state list, or list II, deals with issues including public health, drainage, the availability of clean water, and sanitation. It deals with issues pertaining to military, nuclear power, oil field regulation, air traffic, etc.

If a state law is passed after a federal law, in order for it to take effect, it must first receive presidential assent in accordance with Article 254. Parliament has the authority to legislate state matters as well in times of national emergency. To enact laws that can address environmental issues, these legislative authorities must be divided. The state has undertaken several projects to improve the environment, yet they could represent a major threat to the ecology. Development and the conservation of the environment are in conflict in these situations, and the Environment Impact Assessment (EIA) is used to address these issues. Additionally, the planning commission has acknowledged this.

 International Environmental Agreements

India has been a signatory to a myriad of international agreements pertaining to environmental preservation. Because it was agreed upon in the Stockholm Declaration in 1972 that there is only one environment on Earth. India is required to translate these provisions and implement them in the nation as a signatory to such international agreements. This is expressly mentioned in Article 51(c) of the Indian Constitution, which states that the state will promote adherence to treaty obligations and international law.

Article 253 of the Constitution, which gives the Parliament of our nation the power to pass laws that can be applied to the entire or any territory of the country for implementing any agreement or convention signed with the other country or countries, is another crucial provision that deals with protecting the environment.Parliament may also pass laws to carry out decisions made at international conferences. Any provision made in connection with environmental protection in line with Article 253 read with Articles 13 and 14 cannot be contested in court on the grounds that the legislator lacked the authority to make the provision.

With the use of this power, it is pertinent to know that Parliament has enacted Air ( Prevention and Control of Pollution) Act 1981, and Environment Protection Act, 1986.  It has been clearly stated in the Preamble of these acts that the purpose of their enactment was to implement the decisions taken at the United Nations Conference on the Human Environment, held at Stockholm in the year 1972.

In Vellore Citizens’ Welfare Forum v. Union of India AIR 1996 SC 2715 the supreme court ruled that, as long as they are not in conflict with them, municipal rules must take into account international customary law. It is a recognized legal theory. The domestic courts of law so regarded adherence to international law as mandatory.

Role of the Supreme Court in environmental protection 

In lieu of the wide range of cases dealt by supreme court with regard to environmental protection, a plethora of judgements have been passed which have laid down various principles to be taken care of before indulging in any activity which might pose a threat to the environment. Also, different aspects of the environment have been highlighted by giving them immense importance like natural resources. Air and water have been given the status of the gift of nature and inalienable part of life. 

Polluter Pays Principle 

That “if you make a mess, it becomes your duty to clean it up” is the fundamental idea behind this tenet. The polluter pays principle places more focus on the remedial strategy to restore the ecological harm produced by any individual or group of individuals than it does on the ‘fault’. In the OECD Guiding Principles for International Economic Aspects of Environmental Policies, this idea was originally mentioned in 1972.Additionally, same idea was utilized in the Vellore Citizens Welfare Forum v. Union of India case. In M.C Mehta v. Union of India and Ors( Calcutta Tanneries Case), the polluter pays principle was applied where industries were directed to be relocated and these industries were ordered to pay 25% of the cost of the land.

Precautionary Principle

The precautionary principle is outlined in Rio Declaration Principle 15. In light of this. Applying the precautionary principle is crucial for environmental protection. According to this principle, the absence of complete scientific certainty cannot be used as an excuse for failing to issue cost-effective procedures where there is a likelihood of significant harm or irreparable environmental damage.Another judicial decision based on the precautionary principle was made in M.C. Mehta v. Union, often known as the Taj Mahal Case. A public interest lawsuit was filed in this instance, stating that environmental contamination is to blame for the Taj Mahal’s decline. Court referred the case to the expert committee to seek technical advice on the matter. On the basis of the report of the committee. This monument is a monument of international repute. The industries located in the Taj Trapezium Zone(TTZ) were using coke/coal as the industrial fuel, thus emitting effluents.

The doctrine of Public trust 

This doctrine rests on the principle that certain resources which are required for fulfilling the basic amenities of life like air, water etc hold great importance to the people at large that it would be completely unjustified to make these resources available to private ownership. Since these resources are the gift of nature that is why they should be made freely available to every individual of the society irrespective of the status in life. The doctrine obliges the government to protect resources for public use rather than being exploited by a private person for making economic gains. 

Thus, commercial use of natural resources is completely prohibited under this doctrine. For the effective and optimum utilization of resources, this doctrine mandates an affirmative action of the state authorities. Also, citizens are empowered to question the authorities if resource management is ineffective. 

Case Laws:

M.C. Mehta v. Union of India AIR 1997 SC 734 where a petition was filed for preventing the degradation of the Taj Mahal due to pollution caused by coal using industries via Trapezium, the Apex Court issued directions to 292 industries located in Agra to change over within a time schedule to Natural Gas as industrial fuel or stop functioning with coal/coke and to apply for relocation or otherwise stop functioning w.e.f. 30-04-1997 on account of violation of Articles 21, 48A, 51A and 47 of the
Constitution.
M.C. Mehta v. Kamal Nath AIR 2000 SC 1997 it was contended by the petitioner that if a person disturbs the ecological balance and tinkers with the natural conditions of rivers, forests, air and water, which are the gifts of nature, he will be violating the fundamental right guaranteed under Article 21 of the Constitution. Supreme Court accepted the contention of the petitioner and held that any disturbance of basic environment elements namely air, water, soil which are necessary for “life” would be hazardous to “life” within the meaning of Article 21 of the constitution. The court after holding it to be a violation of article 21 proceeded to observe that in these cases polluter pays principle and principle of Public Trust Doctrine applies

Subash Kumar v. State of Bihar AIR 1991 SC 420 it was held that right to live is a fundamental right under Article 21 of the constitution and it includes the right to enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have recourse to Article 32 of the constitution for removing the pollution of water or air which may be detrimental to the quality of life.

Ratlam Municipality v. Vardhi Chand AIR 1980 SC 1622 supreme court ordered the closure of limestone quarries in Dehra Dun-Mussooorie Area. It realised that the closure of limestone quarries would cause financial hardships but the court observed that it is the price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance, and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affection of air, water and environment.

Conclusion:

The term “environment” was not specifically mentioned in the Constitution in the past, and there were no provisions in place to address environmental hazards and control human behavior that was significantly contributing to the degradation of the environment while purporting to be exercising fundamental rights. The supreme law of the land is the constitution. Therefore, including clauses that particularly address environmental issues might prove advantageous for the environment.

Mediation

Mediation is a type of assisted negotiation. During mediation, parties obtain the help of a neutral third party (the mediator) to help them resolve the dispute. Importantly, mediation requires a lot of involvement from both sides.

Mediation can be informal, where the mediator is a friend, family member, or trusted advisor. In the case of an informal mediation, it is key to select a person who both parties can agree on and who brings some form of expertise to bear on the situation.

The process can also be formal, where the parties hire a professional, neutral third party. Formal mediators are trained in negotiations and help parties solve the issue to satisfy both sides. In either case, the purpose of a mediator is not to decide whether a party is wrong or right—the goal is to help the parties find a mutually acceptable resolution

Who are the mediators?

A mediator is a third person who serves as a neutral facilitator for reaching a resolution between the parties. The mediator calls the meeting to order, then the parties talk about the issue at hand and the mediator offers suggestions for potential solutions. A mediator ought to be impartial and objective. A solution is not offered by the mediator. Certain terms are accepted by both parties. The role of a mediator is limited to assisting the parties in outlining their viewpoints, listening to their disagreements, and seeking a resolution that meets the needs of all parties and leads to a just and practical agreement. The decision-makers are the parties themselves.

Role of Mediator:

The primary responsibility of a mediator is to promote communication between the parties.

1.Organizing a meeting between the parties: After the mediator has been appointed, it is vital for the mediator to arrange a time that works for both parties.

2. Review the mediation process. During the initial meeting, the mediator asks the parties to sign a document outlining the procedures and guidelines. He continues by outlining the course of the mediation sessions after that.

3. He also asks the parties to briefly summarize the facts from each side’s point of view.

4.He then talks about the situation and tries to come up with a workable solution for both parties.

Duties of a Mediator:

1.Objectivity – An unbiased mediator is essential. He cannot support a specific side. The mediator will be replaced by another if it is determined that they are biased toward one party. The mediator must also let the parties know that they are not in a conflict of interest.

2. Confidentiality – According to the statute, all information gleaned from the mediation processes must be kept private. If all parties have consented in writing and in writing, the mediator has the power to provide information about the proceedings to the court.

3. Code of Conduct: The mediator is required to abide by the law. He shouldn’t engage in any activities that are outside the scope of the litigation.1

BENEFITS OF THE MEDIATION PROCESS

No formal court procedures or legal precedents are followed during mediation. The parties are not forced to agree to a decision by the mediator. The mediator helps to retain a businesslike approach to dispute resolution in contrast to confrontational forums. In mediation, there are no predetermined answers. The decision to resolve a dispute belongs with the parties themselves, and they can seek to coming up with innovative solutions.

1. Confidentiality and privacy – The mediation conference is held in a private location, like a conference room of one of the Arbitration Associations. There is no public record of mediation. The secrecy of it is upheld.

2. Time and money are saved because mediation often lasts a day. Due to highly technical issues or the involvement of several parties, complex problems may take longer. Mediation typically leads in significant cost savings because it lacks the formality associated with litigation.

3.Control – The parties are in charge of their involvement in the mediation. Any time throughout the mediation, a party may elect to end their involvement. The parties’ control over the negotiation process is assisted by mediators.

DIS ADVANTAGES OF THE MEDIATION PROCESS

  1. Unfairness – In addition, the absence of legal norms makes it impossible to guarantee that the parties involved will receive a fair trial. Despite the mediator’s best efforts, a combative party may be able to overwhelm a timid one.1. Power disparities within a family may therefore result in unfairness in the mediation.
  2. .Success is not guaranteed – Mediation may not be successful and the parties may not reach an agreement. After squandering a large amount of time and money in the mediation, the parties will next have to turn to the time- and money-consuming court system.
  3. Non-binding: The settlement reached during mediation is not legally enforceable. In the event that the settlement agreement is invalid, the parties may potentially try to contest it.
  4. Parties to a settlement may also make an effort to challenge the terms of the settlement agreement in the event that it is not made legally binding. They might add a new legal conflict on top of the preexisting one by bringing a new lawsuit challenging the validity of the settlement.

Types of Mediation:

  1. Facilitative Mediation

A trained mediator tries to help the parties in disagreement negotiate during facilitative mediation or traditional mediation. The mediator helps parties to a dispute to achieve their own free resolution by looking into each other’s core interests rather than offering suggestions or enforcing a conclusion. In facilitative mediation, the mediators frequently conceal their own opinions on the disagreement.

2. Court-Mandated Mediation

Although mediation is normally seen as an entirely voluntary process, a court that wants to encourage a quick and inexpensive settlement may decide to impose a mandate on it. The chances of settling through court-ordered mediation are low when parties and their attorneys are unwilling to participate, as they might just be going through the motions. However, settlement rates are substantially greater when parties on both sides see the advantages of participating in the process.

3.Evaluative Mediation

Evaluative mediation, a style of mediation where mediators are more likely to offer suggestions and recommendations as well as their opinions, stands in stark contrast to facilitative mediation. Evaluative mediators may be more likely to assist parties in evaluating the legal merits of their arguments and making judgements of fairness rather than concentrating largely on the underlying interests of the parties concerned. Court-ordered mediation is where evaluative mediation is most frequently employed, and evaluative mediators are frequently lawyers with knowledge of the subject matter of the dispute.

4. Transformative Mediation

In transformational mediation, mediators emphasize giving disputants the tools they need to overcome their differences and helping them see each other’s needs and interests. Transformative mediation has its roots in the facilitative mediation tradition and was first introduced by Robert A. Baruch Bush and Joseph P. Folger in their 1994 book The Promise of Mediation. At its most ambitious, the process seeks to change the parties and their relationship by helping them develop the abilities necessary to effect positive change.

5. Med-Arb

In med-arb, a hybrid mediation-arbitration process, parties first agree on the parameters of the procedure. They typically concur in writing that the resolution will be binding, unlike in most mediations. Then, with the assistance of a mediator, they try to negotiate a settlement to their conflict.

6. E-mediation

According to Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a chapter of the book Advancing Workplace Mediation Through Integration of Theory and Practice, e-mediation is where parties who are geographically separated from one another or whose conflict is so intense they can’t stand to be in the same room receive mediation services from a mediator.

Qualities of a Good Mediator

1) Trust: This is the most crucial quality. Success is unlikely if the parties do not appreciate the mediator. In private conversations between a side and the mediator during mediation, it’s common. There is minimal probability of success if the party does not believe that the Mediator will keep any information shared during such a session confidential. Similar to that, if the parties lack confidence in the Mediator’s ability to fairly assess their viewpoints, the mediation will fail.

2) Patience: Parties usually enter mediation with predetermined views that are difficult to change. A mediator needs to be patient enough to engage with the parties to get them to an amenable place.

3) Knowledge: If the Mediator has some experience or knowledge in the subject matter of the disagreement, the chances of success are increased. Knowing the subject matter is not as important in mediation as it is in arbitration because mediation does not result in a decision by the neutral. In contrast, the parties in a complex disagreement over software, for instance, will have more faith in a mediator who is knowledgeable in software technology than they would in one who is not. Additionally, the Mediator will be better able to help the parties find unconventional solutions to their conflict because to this skill.

4) Intelligence: A mediator must be creative and perceptive to comprehend both the nature of the disagreement and the parties’ reasons. The Mediator can rapidly reach an agreement with the parties by having a thorough understanding of what is significant to each of them. Therefore, the criteria include not just knowledge of the subject topic but also knowledge of people and their motives.

5) Impartiality: This quality and trust are strongly related. An impartial mediator is required. Some mediators will voice their opinions regarding a party’s viewpoint or utilize their persuasive skills to persuade the parties to come to an agreement. Other Mediators will encourage the parties to recognize the opportunity for a settlement on their own rather than analyzing or evaluating the merits of a dispute. The parties must be convinced that the Mediator is impartial in both scenarios. If the Mediator is not perceived as impartial in the first scenario, any opinions will not be taken seriously; in the second scenario, the parties will not follow a biased leader.

6) Effective Communication: An arbitrator only needs to listen to the evidence and make a conclusion using their legal knowledge and good judgment. An arbitrator does not necessarily need to be able to converse with the parties, despite the fact that these skills are quite valuable. In order to examine and comprehend the motivations of the parties, anticipate alternative solutions, and then bring the parties to an agreement, a mediator needs sound judgment and effective communication skills. This mission cannot be completed without effective communication.

STAGES OF MEDIATION

The mediator’s opening statement is stage one. The mediator welcomes everyone, outlines the mediation’s objectives and ground rules, and exhorts all parties to cooperate with one another in order to reach a resolution when the parties are seated at a table.

Second stage: the opening arguments. Each party is asked to outline the conflict and any financial or non-financial repercussions. The other person may not talk during the other person’s speech.

Third stage: a group discussion. Depending on how receptive the participants are, the mediator may encourage the parties to speak immediately to the opening statements in an effort to clarify the issues.

Fourth stage: closed caucuses. Each side has the opportunity to speak alone with the mediator at the private caucus. There will be separate rooms for each side. The mediator will move between the two rooms to talk about each position’s advantages and disadvantages and to swap offers. During the allotted period, the mediator continues the conversation as necessary. The mediation process is built around these confidential meetings.

Fifth stage: joint bargaining. The mediator may bring the parties back together to actively negotiate after caucuses, but this is unusual. The parties are typically not brought back together by the mediator until a settlement has been achieved or the mediation’s allowed time has passed.

Stage 6 is completion. If the parties are able to come to an agreement, the mediator will usually put its principal terms in paper and request that both parties sign the written agreement. If the parties are unable to come to an agreement, the mediator will assist them in deciding whether it would be beneficial to meet again later or conduct further phone conversations.

Conclusion:

Medication is a structured process in which the mediator assists the disputants to reach a negotiated settlement of their differences. It is usually a voluntary process that results in a signed agreement which defines the future behavior of the parties. The mediator uses a variety of skills and techniques to help the parties reach the settlement, but is not empowered to render a decision.

Initially Mediation was confined in the areas of disputes relating to labour, and consumer disputes and in negotiations relating to international affairs, but it has now evolved as a formal alternative to the traditional procedure of courtroom litigation. It is now wing extensively used in matters relating to family relations like divorce, disputes arising out of commercial proceeding and even in disputes relating to the public disputes. Thus mediation is a growing and an ever evolving legal mechanism. One of the most accepted reasons for this growing popularity of mediation is the fact  and a mindset of people that the process of mediation provides a conclusion to a dispute that is effective, satisfactory and friendly, and that the process of mediation is less expensive than the tradition court litigation

Negotiation

The process of negotiation aids in the resolution of conflicts and disagreements. It is a means of settling disputes amicably without resorting to confrontation.

The term “negotiation” can be interpreted as a direct or indirect method of communication whereby parties with divergent interests plan a joint action to settle their disagreement. Any current issue can be resolved through negotiation, or it can be used to lay the foundation for a future relationship between two or more parties.

However, there is no statutory acknowledgment of negotiation in India, i.e. through the legal system. Negotiation is the parties’ own form of conflict resolution therapy. The Latin word “negotiatus,” the past participle of the verb negotiare, which meaning “to conduct business,” is the source of the English term “negotiation.” “Negotium” properly translates as “not leisure.” Although there are no set rules in negotiation, it has a recognizable structure. The simplest method for resolving problems is negotiation. Without any outside intervention, the parties start talking in this mode. The resolution of disagreements through the exchange of ideas and concerns between the parties is the goal of negotiation.

The dispute’s core must be the parties’ main focus, and their single goal should be its resolution. The disputing parties attempt to settle their differences via mutual understanding. By working together and cooperating on mutually accepted conditions, the parties undoubtedly hope to find some form of resolution. As it is favoured in corporations, government agencies, non-profit organizations, and legal actions, such as those involving adoption, divorce, and other family-related issues, negotiation is one of the most widely employed kinds of ADR.

Following are some of the characteristics of Negotiation:

  • Two or more parties
  • Negotiation contributes to better results
  • Conflicts between needs and desires
  • Equalizing process
  • It contributes to attaining mutual satisfaction or agreement.

A common legal adage that states “Consilia omnia verbis prius experiri, quam armis sapientem decet” which translates to “An intelligent man would prefer negotiation before using arms”—properly supports the goal of conducting negotiation.This technique aids the disputing parties in reaching a mutual understanding and settlement by recommending better outcomes to them. In general, it is a process of equalization in which a solution is presented while taking into account the interests of both sides. The parties to a dispute should only choose Mediation as an alternative dispute resolution method if they do not believe they are capable of settling the conflict on their own or with the assistance of an impartial third party.

TYPES OF NEGOTIATION

The ability to negotiate is crucial for today’s professional. When both parties are on opposing ends of the spectrum, negotiation may also involve reaching an amicable compromise. There are different negotiation styles, including:

1. DISTRIBUTIVE NEGOTIATION:

When two parties bargain on a particular good or issue, like pricing, it’s called distributive bargaining. Negotiating with a street seller or a dealer about the cost of a used car are two examples. In this case, one party triumphs while the other is forced to concede and loses. Your distributive negotiating abilities will ultimately determine your level of success.

2. INTEGRATIVE NEGOTIATION:

Do you know what occurs when representatives from an employee union deliver their requests to management? They converse, counter argue, present, disagree, persuade, and quickly. Then they come to an agreement over compensation and other perks. Negotiation that is integrated is what this is.It is one of the kinds of negotiations when more than one subject needs to go through the process of negotiation. The negotiation benefits both parties. A win-win situation is guaranteed through an integrative negotiation process.

3. MULTIPARTY NEGOTIATION:

In a multiparty negotiation, three or more parties will use a variety of negotiating tactics to make their views. Multiparty negotiation is used when six friends are determining where to hold the party and debating its advantages and disadvantages.

4. TEAM NEGOTIATION

These discussions are held between the two teams in this kind of negotiating procedure. Team discussions, for instance, are negotiation tactics used by the teams of two corporations seeking to merge.

Being a master negotiator is not rocket science. Neither is it an overnight miracle. It is a five- stage frame work that can be learned, practiced, and applied. Here are the five stages of the negotiation process

Steps of Negotiation Process

  1. Preparing and Planning

Planning and preparation are the first steps in the negotiation process, during which the parties determine their objectives. The “best alternative to a negotiated agreement (BATNA)” and “worst alternative to a negotiated agreement (WATNA)” must be chosen by each party, respectively. These two represent the situation’s most unlikely outcomes. A suitable alternative avoids the possibility of a fruitless dialogue, therefore the better the BATNA, the bigger the negotiating potential. Determining the WATNA is crucial because it shapes the worst-case scenario in the event that the negotiation process fails. Costs and hazards are part of it.

2. Defining ground rules:

The second step entails establishing the ground rules that pertain to the negotiation’s procedural requirements. This particular phase involves reaching an agreement on the process’s duration, location, and start.

3. Clarification and justification

The parties will clarify and settle any misunderstandings regarding the issue in the third step. This step gives you the chance to update and notify the other party about the dispute’s difficulties. To guarantee that the discussion is conducted effectively, both parties to the dispute made clear what they wanted.

4. Bargaining phase:

At this point parties must link the gaps between their proposals. This stage focuses on what is termed a win-win conclusion where both sides believe that their point of view have been taken into deliberation and both sides feel they have gained impressive optimistic during the process of negotiation.

5. Closure and implementation phase

The last step is the validation of an agreement that has been worked out and elucidates how the parties will supervise each other’s actions to ensure that the negotiated agreement is carried out.

Characteristics Of Negotiation Process:

Informal:

Negotiation is a non-binding process without established norms and laws, unlike arbitration. The adoption of any regulations that the parties prefer, if any, is entirely up to them.The subject matter, timing, and venue of the process are typically issues that the parties may agree upon. Other regulations may apply, and they may cover things like confidentiality, the number of negotiations, and the acceptable papers.

Bilateral/ Multilateral:

There may be two or more parties involved in the negotiating process. The parties can be as simple as two people trying to sell their house together to negotiations involving diplomats from numerous different countries.

Voluntary:

Negotiations are performed voluntarily with the parties’ free permission. No one is compelled to take part in the process. The parties may freely accept or reject the conclusion of the negotiations. Additionally, it is revocable at any stage in the process. The parties may engage in direct negotiations or they may select a representative.

Non-Adjudicative:

The sole participants in the informal process of negotiation are the parties. Without disclosing any information to a third party, the parties mutually agree upon the outcome.

Flexible:

The parties’ decision as to which issues will be the focus of the negotiation and whether to use a positional or interest-based approach to bargaining will decide the scope of the negotiation.

Advantages Of Negotiation

  1. Party-based Dispute Resolution:One of the fundamental factors in the effectiveness of negotiation is that it only engages the parties involved and excludes all other parties, keeping the process private and secret. The parties choose the process’s content, duration, venue, and other factors.
     
  2. Freedom of Parties:The parties are allowed to choose their own agendas while also making sure that the negotiation’s goal is met..
     
  3. Consent of Parties: The negotiating process makes sure that everyone engaging in the process is doing so of their own free will and that no one is coerced. Additionally, this freedom guarantees that there is no power play and that all parties are on equal footing..
     
  4. No Third-Party Intervention: Negotiation differs from most of the radius system in that it does not require a third party to arbitrate disputes..
     
  5. Comfortable Process: An informal process is negotiation. The decisions made in this quick process are typically not enforceable against the parties. The decision can now be accepted or rejected by the parties at any time within a fully self-built process, which allows for process withdrawal at any time.
  6. Improvement in Relations: There is potential for improvement in the relationships between the parties once the negotiating process has been effectively concluded. Additionally, it makes the process of negotiating for any additional schooling easier..

Disadvantages of Negotiation:

  1. Power Tactic :The parties to discussions do not necessarily need to be of equal strength and influence. Therefore, in the absence of a disinterested third party, the party that is in a position to dominate the other uses that dominance to secure the other party’s assent and reach a settlement. As a result, an unjust arrangement is reached, which is eventually useless..
     
  2. Impasse: A deadlock situation can occasionally result from differences and disagreements between the parties. During the negotiation process, there may be an impasse where the parties are unable to continue the conversation because they are both at a standstill. When there are no potential positive consequences, this stage can be exceedingly frustrating. This typically occurs when one party is so dogmatic in pursuit of its objective that compromise is impossible. In the end, a walkout occurs as a result of this. 
  3. Backing Off: Negative relations between the parties are created by a failed negotiation, and any business or contractual relationships are afterwards terminated. It also occurs that the parties occasionally lose faith in the negotiating process as a means of resolving their differences and look into alternative methods.
  4. Not all issues are Negotiable: There are a number of situations where the home negotiating procedure involves numerous parties and cannot be made applicable, and such situations can proceed directly to court for the conclusions..

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Section 309 IPC – Attempt to Commit Suicide

The WHO estimates that 800,000 persons die by suicide each year worldwide; of these, 135,000 (17%), according to the Government of India, are Indian citizens. Has the epidemic of suicide always been, and all this time we’ve been powerless to combat it because of our ignorance?

Definition:

Section 309 of the Indian penal code declares that attempting suicide is a punishable offence, and the survivor will be punished accordingly.

It says, “Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished, with simple imprisonment for a term which may extend to one year or with fine, or with both.”

The essential ingredients of section 309 of IPC are:
1. The person must have been unsuccessful in an attempt to commit suicide.
2. The act of attempt must be intentional and not by mistake or accident.

Section 309 of the Indian Penal Code (commonly known as the IPC) remains to be one of the most problematic provisions in the IPC due to its sarcastic tone and the absurdity it displays due to its obsolescence. Anyone who makes a suicide attempt or engages in any behavior that would be considered a suicide offense is subject to a punishment of simple imprisonment for a period not to exceed one year, a fine, or a combination of the two. Despite several attempts to decriminalize it through subsequent Law Commission conclusions and judgements of the Supreme Court and other High Courts, suicide attempt is still categorized as a crime under Section 309 of the IPC in the law book.

In P. Rathinam v. Union of India, AIR 1994 SC 1844, (1994) 3 SCC 394 the constitutional validity of 309 of the IPC was challenged on the grounds that it is violative of Article 21. The Supreme Court held that Right not to live a forced life is a part of Right to Life. Suicide is a psychiatric problem and not a manifestation of criminal instinct. What is needed to take care of suicide-prone persons are soft words and wise counseling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor.

However, this judgement was overruled by the Hon’ble Supreme Court in Gian Kaur v. State of Punjab, AIR 1996 SC 946, (1996) 2 SCC 648, the court upheld constitutional validity of Section 309 of the IPC. According to the view taken by the court, Right to Life could not be stretched to the extent of including Right to die under the ambit of article 21.

The Law Commission’s 42nd report placed more focus on prosecuting individuals who encourage suicide than on those who actually attempt it. The 210th Law Commission report had a more tolerant stance and placed more emphasis on comprehending the psychology of suicide. The significance of realizing that punishing the victim directly would be absurd and have no moral or legal justification. As a result, attempts to commit suicide have been “decriminalized” as a result of this law commission study. The Mental Healthcare Act, 2017 (also known as the MHCA) went into effect as a result, and under the purview of section 115 of the act, the government was obligated to give rehabilitation and appropriate care to people who made an attempt at suicide, in addition to the fact that they cannot be tried for or punished under this code.

But despite that, we must remember that every coin has two sides. Even though there is cause for concern regarding suicide and repealing Section 309 of the IPC seems to be the only option, there are other factors that should also be taken into account. There have been cases of people publicly threatening to kill government officials if things don’t go their way or starving themselves to death voluntarily. Without Section 309 of the IPC, how can such phony problems be handled?

The urgent need is to acknowledge the attempts made by the 210th Law Commission report, comprehend suicide as a socio-legal issue, and stop treating those who attempt suicide as the perpetrators and making matters worse by locking them up with criminals, where their mental health is sure to deteriorate further. But also making decisions based on each case’s merits and metting out punishment when it is deserved.

To quote the 210th law commission report, which gave humanity hope, “The criminal law must not act with misplaced overzeal and it is only where it can prove to be apt and effective machinery to cure the intended evil that it should come into the picture.“

For a case to be considered as an attempt to commit suicide, there are two important points :

  1. The intention of dying is necessary -Doing an action that could lead to the death of the person doing it, with the intention of dying means attempting to suicide. But if someone performs an action in self-defense or with any other intention other than taking his/her own life would not come under attempting to suicide. For example- In a village, a couple had some disagreement and fought. After which the husband threatened to beat up his wife. That night, the wife tried to elope with her 6-month-old baby. But she thought that somebody was following her. Thinking it was her husband, she got scared that he would beat her up, along with her baby jumped in a nearby well, thinking she would be safe from her husband. but that step led to the death of the baby but she was saved. This case would not be a case of an attempt to suicide because she had no intention of dying, she just tried to save herself from her husband. An action if performed with the intention and purpose of death is necessary for it to be an attempt to suicide. Nonetheless, in this case, the court can hold the lady for the death of her child because, at the time of jumping into the well, the lady must and should have thought of the consequences which might lead to the death of the baby. If the lady had jumped into the good thinking to end her life but still was saved, then it would be considered as an attempt to commit suicide because she had the intent and plan of dying.
  2. Action must be taken for committing suicide and not only mere preparation to do it – Only by mere thinking of committing suicide, a person cannot be held liable for the attempt of it. He has to take some action and then only he can be charged with the offence under Section 309 of IPC. Similarly, only preparing the things needed to commit suicide is not enough for it to charge as an offence. For example- a boy thinking of committing suicide, arranged the woods necessary so that he could burn himself to death. He made a pile of wood and sat in between them but did not burn fire. Before he could light the fire, police came and arrested him under Section 309. But in this case, he would not be guilty because he had not lit up the fire yet and his mind could have changed any second before actually the fire was lit.

Is IPC 309 bailable?

Yes, IPC Section 309 is bailable

Is IPC 309 a cognizable offence or a non-cognizable offence?

IPC Section 309 is a  Cognizable Offence and can be tried by any magistrate.

punishment for IPC 309

The person can be imprisoned for up to 1 year or can be asked to pay some amount of fine or both.

Vicarious Liability of the State

Article 300 of the Indian Constitution mentions the concept of state culpability. It stipulates that for the purposes of a lawsuit or legal procedures, the Union of India and the States are juristic persons. Although both the Union of India and the State Governments are capable of being sued and being sued, those situations have not been addressed. We must look back and determine the extent of the liability imposed on the East India Company by the Courts in order to determine whether the state is or is not responsible for a certain act.

Here, the words “administration” and “state” are interchangeable. It is a difficult question to answer whether the government would be held accountable for the wrongdoings of its employees, especially in emerging nations where the scope of state involvement is expanding. The Constitution’s clauses and the public law principles inherited from British common law control the government’s tort liability. Three guiding concepts serve as the foundation for the concept of the State’s vicarious culpability for the wrongs carried out by its agents:

  • Respondeat superior (let the principal be liable).
  • Quifacit per alium facit per se (he who acts through another does it himself).
  • Socialization of Compensation.

Constituents of Vicarious Liability

So the constituents of vicarious liability of state are:

  1. There must be a relationship of a certain kind.
  2. The wrongful act must be related to the relationship in a certain way.
  3. The wrong has been done within the course of employment.

State Liability

The saying “The King can do no wrong” is a part of English common law, and it states that the King is not liable for the wrongs done by his or her subordinates. However, the standing of the ancient Common law maxim in England was revised by the Crown Proceedings Act of 1947. Previously, the King was immune from tort liability for any wrong that it genuinely authorized or that was committed by one of its subordinates while they were working for it.

The Crown is now equally liable for any wrongdoing committed by its employees as a private individual as a result of the Crown Proceedings Act, which was created in reaction to the expanding state’s functions. In a manner similar to this, the Federal Torts Claims Act of 1946 in the United States establishes the guiding principles and effectively resolves the question of State culpability.

In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the Supreme Court classified the functions of secretary of state into two –

1. Sovereign functions

2. Non-Sovereign functions

Sovereign Functions: These are the functions of the state for which the state is not liable under any provision for the wrong ful act so fits employees. For example,functions like defence activities, preserving armed forces, maintaining peace and war, diplomacy are some of the sovereign functions for which the state is not liable.

Non Sovereign Functions: These are the functions of the state which are other than the Sovereign Functions.

In Peninsular and oriental steam navigation company v. Secretary of State for India, 1861 5 H.C.R it was held that, the East India Company would not have been responsible for the act if it had been carried out in the execution of a sovereign function; however, if the function had been one that could have been carried out by a private individual without any delegation of authority by the Government, the company would have been responsible.

In state of Rajasthan v. Vidyawati A.I.R 1962 S.C. 933, According to the Supreme Court, the State is no longer a police state; instead, it has evolved into a welfare state and is gradually turning into a fully fledged socialist state. It would be excessive to assert that the state should be immune from the repercussions of tortious acts committed by its employees while they were employed given the scope of the state’s actions, which not only involve the use of sovereign powers but also its powers as employers in numerous public sectors.

However, In Kasturilal v. State of U.P AIR 1965 S.C. 1039, Due to the fact that the government representatives were exercising their sovereign authority, the state was not held accountable. The question to ask is whether the tortious act was committed by a public servant while performing statutory duties that are ultimately based on the delegation of sovereign powers of the state to that public servant. If so, there may be grounds for a claim for damages.If the answer is yes, the claim for damages for the loss brought on by such a tortious act would not be valid.

In Shyamal Baran Saha v. State of West Bengal A.I.R 1998 Cal 203, It has been noted that an action taken by a government employee in the course of exercising statutory authority is defenseable if it may also be described as an action taken “in the exercise of sovereign powers” or in the performance of official duties. The State was deemed accountable in the aforementioned case because the prerequisites for immunity from liability were not met.

In State of M.P v. Shantibai 2005 ACJ 313 (MP), it was held that the police officers have duty of care and do not enjoy sovereign immunity if their act is negligent (open firing), and State was held liable for such act.

Although the decision of the Supreme Court in Kasturilal’s case still holds good, it can be fairly concluded that for practical purpose its force has been considerably reduced by a number of decisions of the Supreme Court. Without expressly referring to Kasturilal or distinguishing or overruling this case, a deviation from this decision has been made. Under the circumstances in which state would have been exempted from liability if Kasturilal had been followed, state has been held liable in respect of loss or damage either to the property or to a person.

Conclusion

Before 1858, there was no legislation regarding the liability of Government for the wrongful acts of its subjects. The decision taken to formulate legislation for this purpose is indeed superior. As our nation is a sovereign,secular and democratic nation,this legislation should be there in order to protect all the above said words. It can be noted that the theory of constitutional tort is a revolutionary jurisprudence established by the courts given the reality that, in the past, the criteria encountered various critiques. A scientific criterion for future cases must evolve at the Apex Court. The U.S.“voting right model”can be introduced to assess the costs of proceedings under Constitutional Tort to prohibit the individual from violating their rights by statute.

Doctrine of Colourable Legislation

The Doctrine of Colourable Legislation is derived from a latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” that says: What cannot be done directly, should also not be done indirectly. This doctrine has been used in the cases to decide questions of capacity/ competency to enact a law when a lawmaking body violates its given power and enact after something in an indirect way which it can’t do in a direct way.

This concept is a technique for determining if laws passed by various legislatures are within their legislative authority. As a result, it is a tool for enforcing judicial accountability and the separation of powers. In essence, this philosophy holds that anything that is forbidden directly is also forbidden indirectly. This is meant to prevent the legislature from directly doing something that has been forbidden and then doing it covertly or indirectly.

The Supreme Court in the case of K.C Gajapati Narayan Deo vs. State of Orissa 1953 AIR 375 has well explained the meaning and scope of the doctrine as the court stated that;

The question of whether the Legislature in a particular case has or has not violated the law’s subject matter or method of enactment in respect to the statute’s subject matter or method of enactment arises if the constitution of a State distributes the legislative powers among various bodies, which must act within their respective spheres marked out by the constitution in specific legislative entries. Such violations may be overt, obvious, or direct, but they may also be subtle, covert, or indirect. In court rulings, the term “colourable legislation” has been used to describe the latter group of situations.

In India, the judiciary was given the authority to uphold this philosophy while also determining the legislative authority of the federal and state governments. The following is Jus Alladi Krishnaswami Ayyar’s declaration in the Constituent Assembly regarding the principle of color-blind legislation.

It is a widely recognized principle of constitutional law that when a Legislature, whether it be the Parliament at the federal level or a provincial legislature, is given the authority to pass a law regarding a specific subject matter under the terms of the Constitution, it is not the responsibility of the court to review the Act of the legislature. Of course, the Court may declare the legislation to be illegal or ultra vires if it is a colorable device, a scheme to go beyond the scope of the legislative power, or if it uses language from private law.

In fact, even Jawaharlal Nehru restrained Parliament’s unbridled power while maintaining administrative incomparability, saying: “Parliament fixes either the compensation itself or the principles governing that compensation and they should not be challenged except for one reason, where in fact there has been a gross abuse of the law, where in fact there has been a fraud on the Constitution.”

Limitations Of The Applicability Of The Doctrine

There are sure impediments on the applicability of this Doctrine. They are given below:

  1. It isn’t pertinent in situations where the power of the legislature isn’t restricted by the constitutional provisions.
  2. It doesn’t reach out to cases of subordinate legislation.
  3. The motive of the legislature while passing an order is superfluous to decide its legitimacy
  4. There will consistently be an assumption of constitutional legitimacy for the enactment of the legislature.

This guideline was set down on account of Ram Krishna Dalmia versus Shri Justice S.R. Tendolkar and Ors., expressing:
That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.

Principles

  1. It can be distinguished as a fraud on the constitution because legislation can not violate a law through an indirect method. (K.C.G. Narayan Deo Vs State of Orissa)
     
  2. Colourability is bound with incompetency and not with any evil and bad motive, if the legislature has the power to make the laws, then the motive in making the law is irrelevant. (Nageshwar v. A.P.S.R.T Corp.)
     
  3. If something is colourable in appearance only but not in reality then the court looks into the true nature of the legislation and in that case it focuses on the object as the purpose is relevant and not the motive. (Jalan Trading Vs. Mill Mazdoor Sabha)
  4. The expediency, necessity and propriety of a legislation act are for the determination of the legislative authority not for the determination by the courts. (T. Venkaia Reddy v. State of A.P., AIR 1985 SC
     
  5. If the legislature is competent to do a thing directly then the fact that it attempted to do it indirectly or in a disguised manner can’t make the respective Act invalid. (K.C Gajapati Narayan Deo vs. State of Orissa)

Landmark Judgements

Furthermore, in R.S Joshi v. Ajit Mills 1977 AIR 2279, The Supreme Court made the observation that in the jurisprudence of power, “colourable exercise of or fraud on legislative power,” or, more horrifyingly, “fraud on the constitution,” are expressions that merely mean that the legislature is incompetent to enact a particular law, even though the label of competency is struck from it, and at that point, it is “colorable legislation.”

  • State of Bihar v. Kameshwar Singh AIR 1952 SC 252.
    The statute has only ever been declared categorically illegal in this landmark decision on the grounds that it was colorable legislation. In this case, the petitioner questioned the validity of the Bihar Land Reforms Act of 1950[14] based on the claim that, despite appearing to be meant to do so, the demonstration in fact failed to establish any such wage guideline. This was described as an implied attempt to deny the petitioner’s right to compensation. The unconstitutionality of the Act was further upheld by the court. 
  • State of M.P. vs. Mahalaxmi fabric mills ltd.1992
    In this instance, the argument was made that the Parliament’s decision to raise the royalty rates from 400% to 2000% in the Cess and other Taxes on Minerals Validating Ordinance, 1992, was questionable. As the federal government has the authority to raise royalty rates, many coal-producing states imposed and received cess on coal production in 1982. These actions were ruled to be illegal and outside the purview of state law. In this instance, the Supreme Court supported the notification’s legality and ruled that it could not be characterized as a colorable law because the states owned the minerals and should therefore receive compensation for the harm they suffered.
  • State of Tamil Nadu v. M. Rayappa Gounder AIR 1971 SC 231.
    The Madras Government moved to rethink some of the theater owners whose theaters were confiscated for evading the entertainment tax in this case legislation. When the case finally made it to the High Court, it was determined that the Madras Entertainment Tax Act of 1939 did not authorize the government to perform reassessment and the Act was overturned. The state administration appealed to the Supreme Court, which held that this provision’s effect was to overturn the High Court’s ruling and that it was not meant to change the law going back in time. 
  • Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. 1971 AIR 57
    The validity of the challenged legislation was questioned, and the Supreme Court upheld the Act’s revision in response. Since then, the legislative body has worked to overturn and annul the court’s ruling, which is prohibited under the Constitution. According to Article 141 of the Constitution[19], which clearly outlines the Supreme Court’s authority to have all of its rulings bind all Indian courts, the legislature has no legal authority to claim that the court’s affirmation was invalid, uncertain, or incorrect either as a point of reference or between the parties.

Conclusion
The Parliament and State Legislatures are given different administrative powers by the Constitution, and each must operate within its own sphere of influence. In relation to particular legislation, the question of whether the executive branch has gone beyond its constitutionally mandated bounds may come up. Such a crime may be overt, obvious, or direct, but it may also be concealed, indirect, or covert. The term “Colorable legislation” refers to this final category of cases.

In situations involving covert, disguised, and indirect violations, the Doctrine of Colourable Laws steps in to help. The basic idea is that even though it was obvious that a legislative body was acting within the bounds of its powers when it passed a resolution, in reality and generally speaking, it did not. The crime was concealed by what, upon proper evaluation, appeared to be merely an affectation or mask. The law being referenced is invalid if that is the case.

Res Gestae

Section 6 of the Indian Evidence Act: ‘Facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and place.’

The Latin term for this doctrine is Res Gestae, which translates to “things done.” It explains a spontaneous statement made by someone soon after an occurrence, before the human mind has a chance to make up a fake story. A statement made under Res Gestae is one that is made on the spot, that is, during or immediately after the conduct of the crime. There is extremely little opportunity for uncertainty or doubt as a result. Res Gestae is a doctrine that places a proclamation in such close proximity to the event’s commission that there is almost no opportunity for confusion or incorrect interpretation.

  • ‘Res Gestae’ basically means a transaction (thing done/ subject matter).
  • The test of admissibility of evidence – as a part of Res Gestae is whether the Act, declaration or exclamation is an intimately interwoven or connected with the principal facts.
  • ‘Facts forming part of same transaction’ – This includes both physical acts and words spoken whether by person doing such acts, the person to whom such acts, the person to whom such acts are done or any other person(s).
  • It is a general rule – The evidence of connected precedent or surrounding circumstances is proper to show the probability that the principal fact has happened in all cases where it may naturally be assumed that a connection exists between main fact and subordinate fact.
  • The act or transmission may be completed in a moment of time, or may extend through a period of days or weeks, or even months.

Pre-Conditions to Res Gestae:

  • Statement must explain and characterize the incident in some manner.
  • Statement must be a statement of fact and not opinion.
  • Statement must be spontaneous and not merely narrative of the past.
  • Statement must include participants of transaction; In criminal: Victim, accused, eye-witness; In civil: Attesting witnesses and concerned parties
  •  Statements made by bystanders provided their presence on the spot is established.

Note: Filing of FIR forms part of Res Gestae.

A TRANSACTION

The term “transaction,” as used in this section, is defined by a single name as any unlawful act, contract, wrongdoing, or other possible area of inquiry. A suitable distance from the time, pace, and cause and effect, it includes both the immediate cause and effect of an act or event as well as its collection of pertinent circumstances, the other required antecedents of its occurrence, connected with it.13The proximity of time, unity or proximity of place, continuity of acts, and community of purpose or design are reliable indicators of what kind of transaction it is.

BYSTANDER

All the people present at the time of the incident are referred to as bystanders in section 6. When several others arrived at the scene shortly after a murder and were informed by the eye witnesses who the two perpetrators were, their testimony is important. Therefore, the declaration must try to show and explain the event at issue and be mostly contemporaneous with it.

TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE

The judge’s first consideration is whether the likelihood of fabrication or distortion can be discounted. The judge must first take into account the circumstances surrounding the specific statement in order to be convinced that the incident was so extraordinary, jarring, or fanatical as to dominate the victim’s thoughts and that the victim’s utterance was an instinctive response to that incident, leaving no real room for thoughtful reflection. If the statement was delivered under circumstances of approximate but not exact contemporaneity, the judge would be permitted to draw the conclusion that the event’s involvement or pressure would rule out any possibility of fabrication or distortion.

STATEMENT SHOWING MOTIVE AND INTENTION

The declaration of someone’s intention to do something is not admissible as proof that they really did it. Investigating what someone says he is intending to do to determine if he carried out his claimed intention is a completely different subject from examining what someone says when his intention is at stake. In order to establish the motivation behind a behavior, evidence of the comments that accompany the behavior may be provided. Because the declarant may change his opinion between the declaration and the act, statements that are not contemporaneous with the act cannot identify the motivation behind it.

Expansion of the Doctrine of Res Gestae

Courts have gradually expanded this section’s application to include situations including domestic abuse, kid witnesses, etc. Domestic abuse and assault cases invariably have a shocking event, which frequently involves the problem of ecstatic speech. Only the victims in these situations can name the suspected offender. Therefore, it is necessary to accept such victim evidence. Rape cases typically happen alone. Therefore, there is no eyewitness to such an event. Rape and domestic violence cases are distinct from all other crimes.

  • Gentela Vijayavardhan Rao v. State of A.P., (1996) 6 SCC 241:

The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER 447] 

In Bishna vs State of West Bengal AIR 2006 SC 302, where the two witnesses reached the place of occurrence immediately after the incident had taken place and found the dead body of Prankrishna and injured Nepal in an unconscious state. One of them found the mother of Prannkrishna and Nepal weeping and heard about the entire incident from an eye-witness and the role played by each of the appellants, their testimony was held to be admissible under section 6 of the Evidence Act. In all the cases mentioned above the test applied to make the evidence admissible was to consider that was the statement was made at the spur of the moment without an opportunity to concoct and fabricate anything.

“The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.”

Conclusion:

When evidence cannot be presented under another part of the Indian Evidence Act, it is typically presented under res gestae. Legislators wanted to prevent unfairness, or cases being rejected for lack of proof. Any statement that is not accepted under Section 6 may nonetheless be admitted under Section 157 as corroboration.

This doctrine shouldn’t ever be extended to infinity, according to court precedent. Because of this, Indian courts have always taken into account the “continuity of the transaction” test. According to section 6 of the evidence statute, no statement that was made a long time after the incident and that wasn’t in response to it is admissible. However, because there was adequate evidence that the victim was still experiencing tension and excitement following the purchase, the courts have allowed some statements that were made a significant amount of time after the transaction had taken place. As a result, whatever was said was a response to the event. Sec. 6’s strength is in how ambiguous it is.