Sections 121 to 123 of the Indian Penal Code deal with waging war against the government. The following are considered as offences that need to be proven to constitute an offence against the government under Section 121.
IPC Provisions on Waging War
Section 121 of the IPC prohibits waging, trying to wage, or assisting in the conducting of war against the government of India. This part specifies the utmost penalty for such offences as death or eternal imprisonment. It also provides for the forfeiture of goods used in the commission of such a crime.
Furthermore, Section 122 of the IPC addresses the acquisition of weapons, ammunition, or materials to be used in war in order to conduct war against the Government of India. For such offenses, the highest penalty is life imprisonment under this provision.
Section 123 of the IPC deals with concealing the presence or whereabouts of anyone who has done a crime under Sections 121 or 122 of the IPC. This provision specifies a potential penalty of ten years in prison, a fine, or both.
Elements of Waging War against the State
Under the IPC, waging war against the government is an offence under Section 121. The following are the key components of this offence:
Actively participating in or trying to conduct war against the government: This component entails actively participating in or attempting to participate in actions of war against the government. Acts such as assaulting government facilities or people, plotting and carrying out acts of terrorism or insurrection, or scheming to wage war against the government are examples of terrorism.
Abetting the conduct of such an offence entails encouraging, facilitating, or assisting in the execution of an infraction of making war against the government. It could include giving money or material support, harbouring or concealing criminals, or taking part in the planning or execution of such a crime.
Obtaining, possessing, or gathering weapons, ammunition, or war materials with the purpose of using them to wage war against the government: This aspect entails acquiring, possessing, or collecting arms, ammunition, or war materials with the intent of using them to wage war against the government.
Intention to conduct war against the government: This aspect entails the explicit desire to destabilize the government or damage its sovereignty, territorial integrity, or security. It must be demonstrated that the offender intended to conduct war against the government and not just cause damage or participate in criminal activity.
Non-discrimination is an integral part of the principle of equality. It ensures that no one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth.
In ancient India, Sanskrit was the most prevalent language especially during the period of Aryans who introduced it. There are evidences which show that Sanskrit was spoken by elite while the ‘low order’ people used Pali as a means of communication. With the arrival of Islamic rulers, the language became Persian in most of the regions of the then India. At the regional level, local dialects became popular which borrowed words from other main prevalent languages like Persian, Turkish, Arabic, etc. Gradually Urdu developed as a confluence of Persian speaking classes/foreigners and Sanskrit speaking locals.
A few years later (1837), the British settled in India and English language overpowered Persian. Hindi and Urdu started to be used in courts for local residents. Initially, the British experimented with vernacular languages in courts and other Indian matters but later they found it more convenient to switch over to English.
The then prevalent classical languages-Sanskrit, Arabic and other indigenous languages suffered a drastic blow with the introduction of ‘Minute of 1835’ by Thomas Babington Macaulay as it injected English language in the Indian system and it trained the Indians to become hegemonic. Most of the governmental functions began to be carried out in English too. Some eminent personalities of India also supported the introduction of English into the Indian system. For instance, Raja Ram Mohan Roy supported the introduction of English system of education so that an access could be gained into modern science and liberal education of Britain. But the tyranny of the British made Indians rebel in every respect. National language began to be seen as a symbol of unity and national pride and started to be considered as an important part of freedom struggle.
What is language discrimination?
Language discrimination occurs when a person is treated differently because of her native language or other characteristics of her language skills. For example, an employee may be experiencing language discrimination if the workplace has a “speak-English-only” policy but her primary language is one other than English. She may also be the victim of language discrimination if she is treated worse than other employees because she speaks English with an accent, or if she is told she does not qualify for a position because her English is not good enough. Language discrimination may also occur if a person is denied access to businesses or government services because he or she does not speak, understand, read or write English well.
No-discrimination on the ground of language:
Art 14 : of the constitution prohibits the state from discriminating on the ground of language before the law. Art 15: Prohibits the State from making any laws or discriminating on the ground of language in the public places. Art 16:Prohibits discriminating any opportunity of employment or promotion. Art:23(2) of the constitution, State may impose compulsory service for public purpose but can not discriminate on the ground of language. Art 29(2) : states that no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of State funds on ground only of religion,race,caste,language or any of them.
In India language is not an important divisible factor but plays just a minor role than the religion, castes or regionalism.
Why is language discrimination illegal?
The laws mentioned above make it illegal for employers to discriminate against an employee because of his or her national origin. (“National origin” generally refers to the country that a person, or that person’s ancestors, came from.) But because the primary language a person speaks is closely related to the place she came from, or the place her ancestors came from, being discriminated against for using that language, or because of characteristics having to do with that language, has much the same effect as if that person were being discriminated against because of her national origin.
Another crucial stage in the investigation of crimes is the arrest and custody of suspects. In critical circumstances, the accused’s prompt arrest is essential for a thorough investigation. Additionally, it discourages criminals from committing crimes and fosters a sense of tranquility and security among the populace and the government. Without an arrest, a charge sheet is not possible. The word “arrest” describes the act of taking someone into custody so they can face criminal charges. It comes from the French verb “arreter,” which meaning “to stop or stay” and denotes the confinement of a person. In other terms, it refers to the deprivation of a person’s liberty following their arrest by a legal authority.
The terms “arrest” and “custody” are not interchangeable. Custody exists in every arrest and cannot be avoided. Arrest involves taking possession of or touching a person’s body in an effort to restrain him, whereas custody involves submitting a person to the custody through words or deeds..
According to Cr.P.C, the police have the authority to detain a person in both cognizable and non-cognizable cases. Police can detain a person in a cognizable case without a warrant from a qualified magistrate. However, under Section 155 Cr.P.C, the police must first obtain a signed warrant of arrest from a qualified magistrate before they can make an arrest in a non-cognizable matter.
OBJECTIVES
Once you go though this unit, you should be able to:
• explain the circumstances under which the police can arrest a person;
• describe briefly as to the procedures to be followed by the police while making arrest;
• lay down the procedures to be complied with by the police after effecting arrest;
• enumerate the rights of a person arrested;
• set out the consequences that follow on the police of non-compliance with the provisions relating to arrest;
• briefly explain the ambit and scope of detention u/ss 57 and 167 CrPC;
• describe briefly the procedures to be followed by the police in search and seizure u/ss 165,166 and 166A of CrPC;
• lay down the procedures to be followed by the police during search and seizure u/s 100 of CrPC; and
• explain the procedures to be followed by the police in disposal of the seized property.
CIRCUMSTANCES UNDER WHICH A PERSON CAN BE ARRESTED
A person may be detained in a number of situations. The police are a state apparatus with the authority to detain people who have broken the law or committed crimes. According to Section 41 of the Criminal Procedure Code, a person may be detained without a warrant from a magistrate in a number of situations, including: when a person has committed or has been accused of committing a non-cognizable offense in the presence of a law enforcement officer and refuses to give his or her true name or address; any person concerned or reasonably suspected to be concerned in any act committed at any place outside India, any person belong to one or more of the categories of persons specified in Section 109 or 110 of C.P.C and so on.
HOW ARREST IS MADE
The manner in which an arrest is to be made is outlined in Section 46(1). Regardless of whether the arrest will be made with or without a warrant, it is required that the police officer or other person making the arrest actually touches or confines the subject’s body unless there is verbal or physical submission to custody. Oral declarations of arrest, on the other hand, that do not involve physical contact or submitting to custody do not constitute arrest. The police are authorized to make an arrest under the following circumstances under the Code of Criminal Procedure:
(1) Use of force by the Police while making Arrest: – In accordance with Section 46(2) of the Cr.P.C, the police may use reasonable force to make an arrest if the target of the arrest resists or tries to flee. However, the ability to use the necessary force to make an arrest does not include the ability to kill someone who has not been charged with a crime carrying a death penalty or a life sentence under Section 46(3) of the Criminal Procedure Code. According to Section 49 of the Cr.P.C, the apprehended person may not be restrained any more than is required to stop his escape.
(2) The police should not handcuff Accuse in normal circumstances: – The investigating police are restrained from handcuffing the arrested persons without the prior permission from the concerned magistrate.
3) The Police power to search a place: – A home’s occupant has a legal obligation to provide the police and anyone acting on an arrest warrant with all the facilities they need to search the home and make arrests under Section 47 of the Criminal Procedure Code.
(4) The police power to pursue Offenders any place in India: – In accordance with Section 48 of the CrPC, a police officer may pursue a person into any location in India in order to arrest them without a warrant. This clause makes it easier for the police to start and finish their investigation of a case quickly and successfully..
5) The police power to obtain assistance: -Any person that a police officer has the legal right to arrest in accordance with Section 37 of the Cr.P.C may be asked to help him take an additional person into custody or stop that person from escaping. The individual who has been asked to help has a legal duty to do so, and any willful omission on his side to do so is punished under Section 187 I.P.C.
(6) Power to require Subordinate Officer to arrest: – An officer- in- charge of a police station, or any police officer holding investigation under Chapter XII of Cr.P.C, can require any subordinate officer to arrest without a warrant (other than in his presence) any person who may lawfully be arrested without a warrant, and shall deliver to the officer so required an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made under Section 55 of Cr.P.C.
(7) Power to re-arrest escapee: -A person in lawful custody who escapes or is rescued is subject to immediate pursuit and arrest by the person from whose custody he escaped or was rescued in any location in India, according to Section 60 of the Criminal Procedure Code. In terms of employing force to make an arrest, searching a location, etc., the person making the re-arrest shall have the same rights and obligations as described above.
AFTER-ARREST PROCEDURES
(1) Search of arrested person: -The police officer making the arrest (or the person to whom the arrested person is turned over after being arrested by a private person) may search the person in question and place all items, other than necessary wearing apparel, found on him in safe custody whenever the arrested person cannot legally be admitted to bail or is unable to provide bail. Such a person shall be provided with a receipt listing the items that were so seized. The police’s refusal to issue a recovery memo is an irregularity, yet it was determined that the trial was not invalidated. If the person being detained is a woman, Section 51 of the Criminal Procedure Code requires that another woman conduct the search while strictly adhering to her decency.
(2) Seizure of offensive weapons: -Any offensive weapons that the detained person has on him or her may be taken by the police officer or other person conducting the arrest, and all weapons thus taken must be delivered to the court or officer that the arrested person must appear before in accordance with Section 52 of the Cr.P.C.
(3) Medical examination of accused:- A registered medical practitioner could conduct the examination at the request of a police officer not below the rank of a sub-inspector if the crime for which the arrested person is charged is of such a nature and is alleged to have been committed in such circumstances that the evidence as to the commission of the crime would be provided by the medical examination of such an arrested person. Any force that is deemed to be reasonably required for the purposes of the medical examination may also be employed.
If the subject of the examination is a woman, a registered lady medical practitioner must do the examination or supervise it, in accordance with Section 53 of the Cr.P.C. As long as the arrested person is not forced “to be a witness” against themselves, the medical examination has been deemed to not violate Article 20(3) of the Constitution. The inspection is not solely limited to what can be seen on the body. Depending on the circumstances, it can involve testing urine, sputum, blood, or semen.
The discomfort, pain, or injury that the examinee experiences during the examination is justified under Section 53 of the Criminal Procedure Code if the examination procedure is reasonable. The Code of Criminal Procedure (Amendment) Act of 2005, which established the procedures for conducting medical examinations, added sections 53-A and 54(2) and provided a detailed description of what “examination” and “registered medical practitioner” mean..
(4) Reports of arrest to be sent to District Magistrate: – According to Section 58 of the Criminal Procedure Code, every police officer in charge of a police station is required to report to the District Magistrate all cases of people who have been arrested without a warrant within the station’s boundaries.
(5) Person arrested not to be discharged except on Bond or Bail: – A person who has been detained by a police officer is not eligible for release unless he posts his own bond, obtains bail, or receives a special order from a magistrate under Section 59 of the Criminal Procedure Code.
RIGHTS OF ARRESTED PERSON
Several basic practices regarding the rights of the arrested individual have been established by the Code of Criminal Procedure, the Indian Constitution, different Supreme Court rulings, and other International Human Rights Covenants and Conventions. These rights are enforceable at various stages of an arrest, and a police officer who violates them faces harsh disciplinary and criminal consequences.
(1) Right to be informed of the grounds for arrest: – Whether an arrest is made with or without a warrant, the person making the arrest must immediately inform the person being detained of the reason(s) for the arrest in accordance with Section 50 Cr.P.C. The Constitution’s Article 22(1) recognizes this as a valuable right of the individual who has been arrested. A person who has been arrested benefits in many ways from timely knowledge about the reason for the arrest. He has a chance to clear up any misunderstandings, errors, or misperceptions the arresting authority may have had. It also gives him the opportunity to quickly set up other aspects of his defense, such as applying for bail or a petition of habeas corpus.
(2) Right to be informed of right to Bail: – According to Section 50(2) of the Criminal Procedure Code, every police officer who unlawfully detains a person for any reason other than an offense for which bail is not permitted is required to advise the detained person of his right to be freed on bail and that he may arrange for sureties on his behalf. Only when he is unable to secure sureties may he be released without posting bail.
(3) Right to be produced before a Magistrate without delay: – According to Sections 56 and 76 of the Cr.P.C, the person making the arrest is required, without undue delay and subject to the provisions regarding bail, to present the arrested person before the magistrate or officer-in-charge of a police station with jurisdiction over the case. This is true regardless of whether the arrest was made with or without a warrant.
(4) Right to consult a Legal Practitioner: -According to Article 22(1) and Section 303 of the Cr.P.C, any individual who has been arrested has the legal right to consult with a lawyer of his choosing. This right is recognized by both the Constitution and the relevant provisions of the Cr.P.C. The moment of arrest is the start of the right. Although the police officer may be there, he cannot hear the lawyer’s consultation.
(5) Right of an arrested Indigent Person to free legal aid and to be informed about it: –
The Supreme Court held in Khatri v. State of Bihar, (1981) 1 SCC 627, that the State has a constitutional obligation (implicit in Article 21) to provide free legal representation to an indigent accused person. The Supreme Court further held that this constitutional obligation to provide legal representation does not only arise when the trial begins but also when the accused is first brought before the magistrate and when he is occasionally remanded. However, unless he is immediately and properly informed about it by the court when he is brought before it, the constitutional right of an accused person who is impoverished to receive free legal representation may turn out to be illusory. The Supreme Court has therefore cast a duty on all Magistrates and courts to inform the indigent accused about his right to get free legal aid.
(6) Right to be examined by a Medical practitioner: –
Any arrested person who claims that the examination of his body will provide evidence that will disprove the commission of any crime by him or that will establish the commission of any crime against his body by another person must request that the Magistrate order the examination of his body by a registered medical professional at the time when he is brought before a magistrate or at any other time during the period of his detention in custody. However, the Magistrate need not give such a direction if he considers that the request for medical examination has been made by the arrested person for the purpose of vexation or delay or for defeating the ends of justice under Section 54 Cr.P.C.
Maintenance has been described in the definition clause of the act i.e., Section 3(b) as something that can provide for food, clothing, shelter, education and medical expenses.
Basically, it is financial support paid by a husband or a father that covers all basic necessities of life.
The section also says that if the maintenance is to be provided to an unmarried daughter, it shall also cover all the reasonable expenses required in her day-to-day life till the day she gets married.
The liability to maintain arises out of the nature of a relationship with a certain category of persons and under certain circumstances, which has nothing to do with owning or not owning a property. In certain other conditions, the liability is dependent only on owning the property. The liability in the former case is absolute and personal, arising out of a relationship while in the latter case, it is known as liability arising from an ancestral property which is limited.
Personal Liability:
The Dharma shastra lays personal liability on every Hindu to provide maintenance to certain relations. The nature, of such liability is strictly based on their mutual relations. Under the old textual law {the following relations were entitled to claim maintenance
(1) Wife,
(2) Minor children,
(3) Unmarried daughters,
(4) Aged parents
I) MAINTENANCE OF WIFE:
Either the wife or the husband may request interim maintenance under Section 24 of the Hindu Marriage Act of 1955 (hence referred to as the HM Act). The absence of an independent source of income for self-support is the foundation of the claim for interim maintenance. The amount of maintenance is not specified in the clause, and the court will use its discretion to calculate it. The claimant who does not have an independent source of income must also receive support pendente lite, and the other spouse must cover the claimant’s financial requirement for court costs.
From the time the petition is filed until the date the case is dismissed or a decree is issued, interim support is due. The purpose of interim maintenance is to provide for the petitioner’s immediate necessities. Additionally, maintenance pendente lite pays the claimant’s legal costs. The definition of maintenance in S. 3(b)(i) of the Hindu Adoption and Maintenance Act, 1956 (hereafter referred to as the HAM ACT) is “provision for food, clothing, residence, education, and medical attendance and treatment.” It also includes her wedding costs in the case of the unmarried daughter. All personal laws include provisions for perpetual maintenance, and they are essentially equivalent. There are some distinctions between the personal laws, nevertheless.
II) GROUNDS FOR AWARD OF MAINTENANCE: Only upon proving that at least one of the grounds mentioned under the Act, exists in the favour of the wife, maintenance is granted.
These grounds are as follows:- a. The husband has deserted her or has willfully neglected her; b. The husband has treated her with cruelty; c. The husband is suffering from a virulent form of leprosy/venereal diseases or any other infectious disease; d. The husband has any other wife living; e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere; f. The husband has ceased to be a Hindu by conversion to any other religion; g. Any other cause justifying her separate living;
III) QUANTUM OF MAINTENANCE
For the purpose of calculating the amount of maintenance, the means and capacity of the person against whom the award must be given should be taken into account. It is actually necessary to take into account the husband’s potential earning capacity in addition to his actual earnings because it is assumed that every able-bodied individual has the ability to support his wife. When determining the amount of maintenance, the court will take the husband’s income into consideration.
The amount to be taken into consideration is disposable income, not gross revenue. The following factors are listed in Section 23(2) of the HAM Act when determining the amount of maintenance to be paid to the wife, children, and elderly parents: the position and status of the parties, the claimant’s reasonable wants, the claimant’s ability to justify living separately, the claimant’s income, the value of the claimant’s property, and the number of people eligible for maintenance under the Act.
If the woman has engaged in an adulterous relationship or changed to a different faith, ceasing to be a Hindu, she will not be eligible for relief even if one of these grounds exists in her favour. It’s vital to remember that the marriage must be legal in order to qualify for the relief. In other words, if the union between the husband and wife is illegal, there is no matrimonial tie and the wife has no claim to maintenance. However, because of judicial activism, the presumption of marriage is given more weight in some circumstances and the maintenance restrictions are lifted.
IV) MAINTENANCE OF CHILDREN:
According to Section 20 of the HAM Act, both the mother and the father are equally obligated to support all children, both biological and adopted. The Hindu legal system is unique in that both parents are equally liable for raising the children. According to Section 20(2) of the HAM Act, minor children have a right to maintenance. Until the daughter gets married, she is still entitled to maintenance.
Her parents must cover the costs of her wedding. However, even after marriage, a daughter who has married but is still a minor may apply for maintenance under S.125 CrPC if she is unable to support herself. The children have a right to maintenance after an application has been made under sections 24 and 25 of the HM Act if the claimant is responsible for their upkeep, which means that the claimant’s right to maintenance also includes the children’s right to maintenance. The court may occasionally issue interim orders and establish provisions regarding the custody, support, and education of the minor children in any matter under the HM ACT, according to Section 26 of the Act.
In Ram Chandra Giri v. Ram Suraj Giri where the father of a minor son neglected to provide maintenance, a petition was filed under section 125 of CrPC. Thereupon the father contended that the son had a good physic and was healthy and hence he had the ability to fend for himself. The Court rejected the contention and stated that the concept of potential earning capacity cannot be applied to, minor children as that would defeat the very purpose of legislation.
V) MAINTENANCE OF PARENTS
In addition, S. 20 of the HAM Act establishes a maintenance responsibility for elderly and disabled parents who are unable to care for themselves using their own resources, including property and earnings. The first law in India to require children to support their parents is known as the “HAM ACT.” Daughters are likewise subject to the need to maintain, in addition to sons. Both the mother and the father are entitled to maintenance claims under the HAM Act.. The explanation to this section also includes stepmother in the term parent. However, it is important to note that the section imposes an obligation to maintain only those parents, who are unable to maintain themselves and therefore the obligation to maintain the parents other than those infirm and unable, is only moral.
Case Laws:
In the case of K. Sivarama vs. K. Bharathi any marriage in contravention of Sections 5 & 11 of the Hindu Marriage Act, cannot be considered to be a valid marriage. Such a woman cannot recourse maintenance U/S. 25 of the Hindu Marriage Act for claiming maintenance.
In the case of Ambaram v. Reshambai, the court held that although a lot of women entered into marriage without knowing about the subsistence of another marriage of her husband, although deserve sympathetic treatment awarding of maintenance U/S. 25 & if any appeal is to be made, it should be made to the legislature.
Mangala Bhivaji Lad Vs Dhondiba Rambhau Aher AIR 2010 Bom.122 Second wife not entitled to maintenance: Inherent powers are to be exercised by the Court only in the absence of statutory provisions. And not to circumvent a statutory provision. Grant of maintenance to a second wife in the exercise of inherent powers though she was not entitled to maintenance under provisions of the Hindu Marriage Act (1955) and Hindu Adoptions and Maintenance Act (1956) not permissible. Chandaram Bunkar Vs Smt. Ramadevi AIR 2010 Raj 176
Shobha Suresh Jumani Vs Appellate Tribunal, Forfeited property and another AIR 2001 SC 2288 Wife living separately entitled to claim maintenance: Section 18 of Hindu Adoption and Maintenance Act only provides that Hindu wife shall be entitled to be maintained by her husband during her lifetime ad if she is staying separately as provided under sub-section (2), she is entitled to claim maintenance from her husband.
P. Srinivasa Rao Vs P.Indira AIR 2002 AP 130 (FB) Deserted wife would be entitled to maintenance: The provisions of sections 18 and 20 cannot be interpreted in such a manner so as to defeat justice to the deserted wife and her Dependant child. Even otherwise, food, clothing residence are essential requirements for human survival. Providing such essential requirements to the wife and children is the statutory and moral duty of a husband, the same cannot be denied or postponed.
Dayali Sukhlal Sahu Vs Smt. Anju Bai Santosh Sahu AIR 2010 Chhat 80 Obligation of father-in-law to maintain daughter-in-law: Under Section 19 one of the conditions for the father-in-law to maintain the daughter-in-law is that the daughter-in-law is not able to maintain herself from the estate of her parents.
The concept of Strict Liability in torts is also referred as “No-Fault Liability”, which can very explain this concept in an obvious manner- “that liability would exist irrespective of any fault”. There exist certain activities which are inherently so dangerous in nature that merely carrying them on poses a duty on the person who does so, to compensate for any damage irrespective of any carelessness on their part. The rationale behind imposing such liability is the foreseeable risk involved in such activities. This principle was first applied by the House of Lord in the case of Rylands v. Fletcher.
Meaning of Absolute Liability
Following the infamous “oleum gas leak case,” M.C. Mehta v. Union of India, the idea of absolute culpability was developed in India. One of the landmark cases in Indian law is this one. Strict liability is applied in the M.C. Mehta case, but no exceptions are provided and the defendant is held entirely responsible for his actions.
According to the ruling in the Ryland v. Fletcher case, the defendant will not be permitted to raise a defense if he or she was at fault.There was an urgent need to establish a strict responsibility rule with no exceptions accessible to the defendant in the wake of the Bhopal gas leak case since many people perished and continue to suffer from some of the fatal diseases down the generations.
Difference:
Sr. No.
Strict Liability
Absolute Liability
1
In Strict Liability, the point of contention is the ‘non-natural’ use of one’s land in using or handling an object/thing.
In Absolute Liability, the presence of hazardous or inherently dangerous substances or objects is necessary.
2
The escape of the dangerous thing is imperative, and it cannot be applied to damage caused inside the premises of the defendant, as seen in the case of Read Vs. Lyons and Co. here in above.
In Absolute Liability, the escape of such dangerous things is not necessary, but the mere use of a hazardous substance makes the party subject to this rule. It is applicable to damage caused to people inside as well as outside the defendant’s premises.
3
The Strict Liability rule has some defences and exceptions that can be used by the defendant. These include: Act of GodConsent of PlaintiffAct of Third PartyAn act done under Statutory Authority.The defendants, therefore, have a chance to be relieved of the liability by proving that their act falls in one of the abovementioned exceptions to Strict Liability.
3. In Absolute Liability, the defendant does not have any scope for defence or exceptions but is held completely liable for the damages caused by them in all circumstances.
4
The rule solely applies to the non-natural use of land.
This rule applies to the natural or the non-natural use of any land.
5
Compensatory damages are paid to the plaintiff, depending on the nature and quantum of the damages caused to them.
The damages paid to the victims are exemplary in nature and are much greater as the defendants are liable for people’s lives and environmental conditions in such cases.
6
The Strict Liability concept was independently formed in England in 1868.
The Absolute Liability rule was formulated in India after the courts realized the shortcomings of Strict Liabilities. Absolute Liability was inherently Strict Liability – the exceptions.
In the stratosphere of the earth, there is a layer of ozone made up of three oxygen atoms per molecule. It is believed to screen against the sun’s harmful UV rays and regulate the stratosphere’s temperature structure. At lower altitudes, ozone also contributes to global warming and irritates the respiratory system while hurting plant development. Since 1960, there have been significant losses in the ozone layer over Antarctica during the spring in the Southern Hemisphere, and more recently, a hole has developed in the ozone layer over the Arctic.
Human activity-related emissions of some inert gases, mainly CFCs, are to blame for the ozone layer’s thinning. These gases break down when they are exposed to UV rays in the stratosphere, releasing free chlorine from CFCs and bromine from halons, which fragments the ozone molecule and thins the ozone layer. The 1985 Vienna Convention for the Protection of Ozone Layer and the 1987 Montreal Protocol on Substances that Deplete Ozone Layer make up the complicated framework that addresses protecting the ozone layer from these harmful substances.
Vienna Convention for The Protection Of Ozone Layer, 1987
Under the supervision of UNEP, the Vienna Convention was negotiated over a five-year period. The 22nd of March 1985 saw its adoption, and the 22nd of September 1988 saw its entry into effect. 185 States have joined as parties to it as of this writing. All States are welcome to participate in the first treaty to address the issue of the world’s atmosphere. There are 2 Annexures and 21 Articles in the Convention. It created a framework for adopting policies “to protect human health and the environment from adverse effects resulting from or likely to result from human activities which modify or are likely to modify the Ozone layer.”
What is the purpose of the Vienna Convention?
The purpose of the Vienna Convention is to protect the ozone layer from depletion. 28 countries originally signed the convention on 22nd March 1985. On 16th September 2009, Vienna Convention along with Montreal Protocol was universally ratified and thus became the first treaties in the history of the United Nations to achieve universal ratification.
Important Articles of Vienna Convention for The Protection Of Ozone Layer
The ozone layer is described in Article 1(1) of the Convention as the layer of atmosphere ozone above the planetary boundary layer.Article 2(1) of the Convention requires parties to take four categories of “appropriate measures” in accordance with the resources at their disposal, their capabilities, and the basis of pertinent scientific and technological considerations. It does not, however, prescribe any targets or deadlines for activities.
Co-operation on systematic observation;
Research and information exchange;
Adoption of appropriate legislative or administrative measures and co-operation on policies to control, limit, reduce or prevent activities that are likely to have adverse effects resulting from modifications to ozone layer;
Co-operations in the form of measures, procedures, standards to implement the Convention as well as with competent international bodies.
Article 2 further provides that parties are free to adopt additional domestic measures in accordance with international law [in the form of enactments, rules and regulations, policies] and maintain in force, compatible measures already taken.
The forms of study and systematic observations that must be conducted either directly or through international organizations are described in Article 3 and Annexure I. In a similar vein, Article 4 and Annexure II call for cooperation in legal, scientific, technical, socioeconomic, and legal information pertinent to the Convention, subject to confidentiality rules, as well as the development and transfer of technology and knowledge, taking into account the specific needs of Developing countries. The Common But Differentiated Responsibilities of the Nations when it Comes to Ceasing the Emission Reduction are Embodied in the Text of This Article of the Convention.
According to Article 6, the parties must also advise the Conference of Parties [CoP’s] about the techniques and measures they plan to use for implementation. Aside from adopting Protocols and additional Annexes, as well as amending existing Protocols and Annexes, the CoP also has the authority to take any other actions that may be necessary to carry out the objectives of the Convention.In Articles 8 to 10,
In case of disputes between parties, the Convention under Article 11 lays down several methods of dispute settlement mechanisms:
Mediation at the request of parties under Article 11(2)
Voluntary submission to Arbitration and ICJ under Article 11(3)
Submission of disputes to Conciliation bodies under Article 11(4)
Article 18 provides that there may be no reservations to this Convention. Article 20 provides that the Secretary-General of UN shall assume the functions of Depositary of this Convention and any Protocol.
As a ‘next step’ in the process of giving the principle of Absolute Liability a sound backing and reasoning in India, the Public Liability Insurance Act of 1991 was introduced. The object behind implementing such an act is that the rapid increase in the number of hazardous industries and operations in India has led to the incline in the risk of accidents, injuries, and damages, not only to the employees but also to the individuals and property located in the vicinity of such industries. This act, therefore, makes the situation of the affected persons better, by providing immediate relief in terms of insurance, to the workers and people affected and injured in the process of handling hazardous materials, either by themselves or industry or operation running nearby. The main purpose is to create a Public Insurance Fund to provide relief and immediate aid to people affected by such hazardous industries. The understanding of ‘Absolute Liability’ in this Act, is not clearly and explicitly stated therein, but has similar connotations under Sections 2(a) and 2(c) of the Act.
This act was implemented as a pursuant to the dangers propagated by hazardous industries, the understanding of which came as an afterthought to the Bhopal Gas Tragedy, and the ruling given in the Oleum Gas Leak case of the Supreme Court.
Essentials of absolute liability
The essentials of Absolute Liability are similar to the understanding of Strict Liability, in the sense that it too requires the preconditions of a dangerous thing, the escape of such dangerous things, and damage caused due to the escape of such dangerous things. However, as required under Strict Liability, the essential of ‘Non-natural use of land’ is not a prerequisite to the rule of Absolute Liability. Blackburn J stated in the Chamber hearing of Rylands v. Fletcher, the escape of a substance from any kind of its use would make the defendant liable, which was later changed to only the ‘non-natural use’ of the land by Lord Cairns while addressing Strict Liability in the House of Lords. In taking Blackburn J’s conception further, absolute liability too, does not differentiate on the use of the land as natural or non-natural, while determining its applicability. Therefore the essentials of Absolute Liability are as follows:
Dangerous Thing
Escape
Hazardous or inherently dangerous substance: The major distinguishing factor in the essentials of Absolute Liability is the presence of a hazardous or inherently dangerous substance on the land. This means that if the defendant has a hazardous substance on his land, no matter what its use, such a defendant would be absolutely liable if such substance escapes his premises. The liability does not lie in the use of an object or thing, but in the nature of such an object or thing. Hazardous defined under Section 2 of the Public Liability Insurance Act 1991, is ‘any substance or preparation which is defined as hazardous substance under the environment (protection) Act, 1986 (29 of 1986), and exceeding such quantity as may be specified, by notification, by the Central Government’. This is the imperative distinguishing factor that validates the application of absolute liability.
Need for the principle of absolute liability
The rule of Strict Liability was introduced in Rylands v Fletcher as seen herein above. This rule in the case concerned has many exceptions, that the actual spectrum of the liability becomes very narrow. This old principle as brought out in 1868, may not suit all countries as well as it did then, due to the dynamic nature of technology and society. Though India did follow the laws of England since the pre-independence era, adjustments and amendments have been made to suit the country’s needs over time. Many rules and concepts which were not quite suitable in the Indian scenario, were modified to fit the criteria of Indian legislation. In the no-fault liability law, India followed the Strict Liability for itself, until it realized that this could not be properly applied to the Indian context. The major push came from the two incidents of the Bhopal Gas tragedy and the Oleum Gas Leak case, which instilled a realization of the need for a new principle for liability in India, to meet its industrial and economical requirements.
Industrialization and Growth
The Strict Liability concept was applicable when India was not as technologically adept as it is seen to be today. The prerequisites and essentials of Strict Liability just do not cover all the bases that it can to protect people that are harmed due to dangerous items. Therefore to meet the new era of industries and thereby even more dangerous substances and hazardous activities, a new norm was to be followed to pin responsibility on such industries.
Agriculture
In India, agriculture is a common and widespread area of employment. As a result, the storing of large amounts of water on one’s land becomes quite normal and escapes the ambit of ‘non-natural use’ of land, as was established in Rylands v Fletcher. In other parts of the country as well, there may be the use of certain things and execution of certain activities that may come under the umbrella term of ‘non-natural use of land’ in other countries, but not in the densely populated and developing country such as India. Thus, India required a principle that could cater to its own needs, and not a duplicate of the laws made in England.
Social Responsibility
he major party targeted in applying the Absolute Liability rule are industries and operations that use or manufacture hazardous or inherently dangerous substances in its premises. These industries were not present earlier and therefore the Strict Liability rule could be used on a general basis. These industries now utilize the country’s resources and additionally also pose a risk to the citizens. This Absolute Liability rule makes it compulsory for industries to take responsibility for their damages completely and non negotiable so that the health and well being of the citizens and society are given priority.
Object and reasons
The Act has been enacted according to its opening statement to’ provide for public liability insurance for the purpose of providing relief to the persons affected by accident occurring while handling any hazardous substance connected there with or incident altogether’.In the background of the principle so the Oleum Gas Leak case,discussed earlier and the Bhopal litigation, the Act was passed to consolidate the law relating to enterprise liability particularly in relation to hazardous activity. It seeks to provide relief to the members of the general public who become the victims of industrial accidents. In effect, the Act is also an answer to reflection so of the Supreme Court in Charan Lai Sahu’s case,where a call had been made to enact such a legislation.
Powers and Penalties under the Act
Extensive powers have been conferred on the central government for the purpose of giving effect to provisions of PLIA. This includes authorizing any person to call for any information for ascertaining as to whether the requirements of PLIA have been fulfilled; the power of entry and inspection, search and seizure of premises or vehicle where the hazardous substances are being handled. The central government is also given the powers to make directions for the purposes of PLIA and to make an application to a court of law for restraining an owner from handling hazardous substances in contravention of the provisions of PLIA. A criminal sentence of up to six years, with a minimum mandatory sentence of one and a half years is prescribed for persons who do not take out insurance policies under section 4 and fail to adhere to directions under section 12 of the Act, with a fine of a minimum of a lakh of rupees.There is also a penalty for obstructing the carrying on off unctions under sections 10 and II.The principles of corporate criminal liability are also recognized in the Act, by stipulating that companies can also be proceeded against for offences. There is also the possibility for the heads of government departments to be proceeded against for committing an offence.
DEFINITION AND MEANING OF TRUST : Sec 3, A trust is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner (trustee),or declared and accepted by him, for the benefit of another, or another and the actual owner.
ELEMENTS OF TRUST
1.The person who reposes or declares the confidence is called the author of trust or settler. 2.The person who accepts the confidence is called the trustee. 3.The person for whose benefit the confidence is accepted is called the beneficiary. 4.The subject-matter of trust is called the trust-property or the trust-money. 5.The object of trust should be legal. 6.There may be a instrument of trust (i.e. trust deed) 7.There may be terms and condition written in trust deed
CLASSIFICATION OF TRUST
SIMPLE TRUST – A trustee to hold estate without having any active duties to perform. SPECIAL TRUST- The trust has been created for a particular object/purpose is a special trust. ORAL TRUST- A trust may be declared orally. WRITTEN TRUST- A trust may be declare on written basis or through an instrument in writing. EXPRESS TRUST- Either orally or written ,the trust is created. IMPLIED TRUST- The parties are not give any intention , it means intention shall not be express. REVOCABLE TRUST- The power goes to settler or author to revoke the trust anytime. IRREVOCABLE TRUST- It is one of that which will not come to end until the terms and conditions of trust have been fulfilled. CONSTRUCTIVE TRUST- Imposed by law and as on equitable remedy it occurs due to some wrong doing ,where the wrong doers have achieved legal title to some properties and can not in good consent they allow to benefit from it.
Trustee – title holder of the property; has a fiduciary obligation to deal with the property to the best benefit of the beneficiary,
Trust Property – identifiable and held on trust by the trustee.
Beneficiary – person/s on whose benefit the property is held by the trustee.
Settlor/Testator – the person who sets up the trust (this person disappears once the trust is executed)
How to create a Trust ?
Trust are created when the settler of the property transfers property or provides benefit for the welfare of beneficiaries or for the usage of public purposes. For essentials conditions are necessary to bring into being a valid trust.
The person who creates a trust should make an unequivocal declaration binding on him.
He must transfer an identifiable property under irrevocable arrangement and totally divest himself of the ownership and the beneficial enjoyment of the income from the property.
The objects of the trust must be defined and specified.
The beneficiaries are specified.
Who can Create Trust
As per Section 7 of the Indian Trust Act, a trust may be created by every person competent to contract and by or on behalf a minor, with the permission of a principal court of original jurisdiction. Following are eligible to create a Trust.
Trust by an Hindu Undivided Family.
Trust by a Minor.
Trust by a Woman.
Association of Person.
Company
Duties/Liabilities of a Trustee
The Indian Trusts Act, 1882 provides for certain duties/liabilities of a Trustee, we shall see each one of them in brief detail.
1.Execution of Trust
The trust’s stated objectives must be fulfilled by the trustee, according to the trust instrument. The trustee must also abide by the instructions given by the trust’s author at the time the trust was established. The trustee is not obligated to abide by these instructions if they are unlawful or unworkable, though.
2. Acquaintance of Trust Property
The trustee must be aware of the specifics, whereabouts, and present state of the trust property in addition to taking the necessary precautions to protect it.
3. Protection of Title of Trust Property
The trustee is obligated to refute any and all challenges to the ownership of Trust property and to take all necessary steps to assert and safeguard the title.
4. Not to set up Title adverse to the beneficiary
As the trustee is entrusted with the trust property to maintain it for the benefit of the beneficiaries, it is expected and required of the trustee to not set up any title adverse to the beneficiary. A good example explaining this point would be, suppose the trustee is entrusted with an immovable property and is required to apply the rents and profits of such property for the benefit of the beneficiaries. The trustee is also given the rights to sell such property.
It is expected of the trustee that they would not sell such property to themselves, anyone in their family or circle of friends, or a person of a similar nature, as this would be against the interests of the beneficiaries and would negate the trust element that serves as the trust’s cornerstone.
5. Take care of the Trust Property
The trustee must provide an adequate level of protection and exercise the same caution with regard to the trust’s assets as he would with his own. The Trustee would not be liable for any damage to the trust property or any benefits that result from it, according to the Act, provided he had exercised the same caution that a normal person would exercise when handling his own property.
6.Convert perishable property
The trustee must convert, sell, and convert the trust property into cash proceeds and use those profits for the purposes of the beneficiaries if the trust property is of a type that over time will continue to deteriorate and lose value. When a trust is established for the benefit of multiple people in succession, a trustee is especially obligated to perform this responsibility.
7. Be impartial among the beneficiaries
When the trust is created for the benefit of several beneficiaries, the trustee is required to apply the benefits received from the trust property equally among the beneficiaries, without being partial to anyone or any group among the beneficiaries.
8. Protect the trust property from adverse beneficiary
If there are multiple beneficiaries to a trust and one or more of them act—or threaten to act—in a way that would be detrimental to the interests of the other beneficiaries and the trust as a whole, the trustee must take action to prevent that behavior.
9. To maintain and keep books and accounts
The trustee must always maintain a complete and accurate accounting of the trust’s assets and make it available to the beneficiary upon request.
10. Investment of Trust money
According to the Act, the trustee must invest trust funds in the ways that are specified in the Act where the trust property includes money and that money is not needed to be used immediately for the benefit of the beneficiaries. The Act covers instruments like promissory notes and other Central Government securities, in shares or debentures of the Railways or other Government corporations, in Units issued by the Unit Trust of India, etc.
Powers/Rights of a Trustee
Certain rights/powers are conferred upon the Trustee under the Indian Trusts Act, 1882. They are discussed in detail in the following paragraphs.
Right to Title deed
The trust deed or any other document by which the trust is established, as well as the title records of the trust property, may be kept by the trustee.
2. Right to reimburse expenses incurred for trust purposes
The trustee is entitled to reimbursement for costs he incurred in furtherance of the trust, including those incurred for the trust’s execution, the preservation of its assets, the protection or maintenance of the beneficiary, etc.
3. Right to re-collect over payment
A trustee has the power to recover any surplus funds from a beneficiary if they have unintentionally paid a beneficiary more than what was necessary. If it isn’t practicable, the beneficiary’s interest in the trust property may be used to make the collection, or if that isn’t an option, the recipient themselves.
4. Right to indemnity from breach of trust, by a gainer
If someone violated a trust and profited as a result, the trustee has the power to hold that individual accountable for their actions by seeking indemnification. However, the trustee forfeits his ability to defend himself in such a scenario if he was also involved in the fraud that resulted in the breach.
5. Right to seek Court’s opinion in managing trust property
The trustee has the right to apply to the Court, by way of a petition, to seek the Court’s opinion, advice, opinion or direction with regards to the management of the trust property.
6. Right to Settle accounts
When a trustee’s obligations have been fulfilled, the trustee is entitled to have the accounts for the administration of the trust property examined and settled. The trustee is also entitled to receive an acknowledgement when there is no longer any benefit owed to any beneficiary under the trust following the completion of the trustee’s obligations.
7. Right to sell trust property, along with power to convey
The trustee has the authority to sell the trust property in accordance with the instructions stated in the trust deed, or, in the absence of such instructions, in any manner the trustee sees fit, including by public auction or private contract.
8. Right to vary or rescind the sale of trust property, and re-sell the same
The trustee has the power to vary the conditions of the sale of trust property or even rescind such sale. He also has the power to re-sell the same property. If in such recession and re-sale, if any loss occurs, the trustee is not liable for the same.
9. Power to manage investments
Any existing investment in trust property may be sold by the trustee and replaced with any other instrument the trustee sees fit. However, if there is a beneficiary who is able to enter into contracts, the trustee cannot use this power without the beneficiary’s express written approval.
10. Power to apply property of Trust for maintenance of minor beneficiaries
The Trustee has the authority to apply, or use, the revenue from the Trust property for the support of the beneficiary if they are a minor. The upkeep of the minor may involve duties like providing food and clothing, instruction, religious observance, marriage, funerals, etc.
11. Power to compound
This authority may also be known as the authority to resolve conflicts. If there is a disagreement over any trust property, the trustees, or the sole trustee if there are two or more trustees appointed, may decide how to resolve it. For instance, they might compromise, add to the issue, give up on it, or even arbitrate it. The sole trustee or the trustees may enter into any agreement or other documents they think appropriate in the course of carrying out such settlement.
12. Trustees to continue with trust if one of several trustees dies or disclaims
The remaining trustees will have the authority to manage the trust property in accordance with the terms of the Trust Deed if there are two or more designated trustees and one of them renounces the trust or passes away.
However, such authority would not be used if the Trust Deed specifically calls for a certain number or more of trustees to carry out the trust’s authority and, following a death or disclaimer, such precise number is not met.
The Constitution of the biggest democracy in the world is more than just a document; it also evokes strong feelings in the nation and its citizens. The Indian Constitution, which has 395 Articles, 12 Schedules, and 21 Chapters, holds the record for being the longest constitution in the world. Even if the constitution has a huge number of articles, those mentioned in part 3 are of the utmost importance. Articles 12 to 35 of Part 3’s “Fundamental Rights” section serve as irrefutable evidence that India is a democracy with socialism, secularism, and a republican government.
Article 19 of the Constitution provides for the following six freedoms:
(a) Freedom of speech and expression
Every Indian citizen has the freedom of speech and expression, which includes the right to speak up and express their thoughts, feelings, desires, and ideas without being restrained. However, it is important to keep in mind that none of the rights discussed in this article are absolute and may be subject to a lawful restriction, meaning that the government may set reasonable limitations on what may be said.
For instance, the government has the right to take action against anyone who speaks out against the security of the state, the sovereignty and integrity of the nation, a friendly nation, public order, decency, and morality, or in relation to judicial contempt, defamation, or incitement (provocation) of an offense.
Right to information: The Right to Information Act of 2005 finally recognized the right to know, receive, and share information as a component of freedom of speech and expression. Right to silenceAIR 1987 SC 748 This also applies to the ability to keep silent. The Supreme Court ruled in Bijoe Emmanuel v. State of Kerala (1986) that students who chose not to sing the National Anthem did not break any laws because there is no law that can be used to restrict their freedom of speech and expression.
Freedom of Press: This includes the ability to print and publish whatever one wants, within the bounds of acceptable constraints, and without seeking anyone’s permission first. Pre-censorship of any news, article, book, etc. before publication is a violation of Article 19(1).(a). The Supreme Court stated in Romesh Thappar v. State of Madras AIR 1950 SC 124 that “Freedom of Speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.”
Case Law:
In Tata Press Ltd. v MTNL, AIR 1995 SC 2438 the Supreme Court held that advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the productadvertised as the public at large is benefitted by the information made available through the advertisement. According to the court in a democratic country the free flow of commercial information is indispensable.
(b)
This Sub-Clause stipulates that all Indian citizens may gather peacefully without using weapons or ammunition. The constitution, as stated in this article, provides that all citizens have the right to hold meetings and participate in events in a peaceful manner.
But, the same has some reasonable restrictions and the freedom is not absolute. The freedom should not contradict with the sovereignty and integrity of the nation and public order.
Case Law:
In the case of S. Ramakrishnan Vs. Sistrict Board, the Supreme Court held the government order which requires municipal teachers not to join an association or union without its previous approval, as invalid as it is violating fundamental right provided in Article 19(1)(c).
(c) Freedom to form Associations and Unions
This Sub-Clause permits citizens to establish associations and affiliate with any organizations that serve their interests and are legitimate in nature and do not run afoul of acceptable limitations. According to this article, no one can prevent any citizen of the nation from founding their own organization, business, society, or political party. Anyone can also join any union of their choosing and is protected by the same, subject to reasonable limitations.
Those restriction includes that the association and union should not be contradictory with the sovereignty and integrity, public order and morality of the nation.
Case Law:
Right to form association or union being a fundamental right of every citizen including the students of the college, that right can only be curtailed fr put under cloud by legislative action. State government has no authority to pass excutive orders regarding amendment or alteration in the eligibility criteria for contesting the elections of the students unions or Associations .held in Suresh Swami Vs. State of Rajasthan AIR 2001 Raj 244.
(d) Freedom to move freely throughout the territory of India
We live in a free and integrated country, thus freedom of movement is just as important as other freedoms. This Sub-Clause grants us the freedom to travel wherever in the nation without being subject to limitations imposed by the government or any other individual. In light of the limits, the authority may apply some restrictions for the protection and benefit of the schedule tribes as well as the broader public.
Case Law:
In the case of Ebrahim Vazir Mavat v. State of Bombay AIR 1954 SC 229 (1952), where the citizen of India was ordered to be deported to Pakistan after his arrest as he returned to the country without a permit, it was held that the particular section which legalises it, was unconstitutional. Laws such as requiring the wearing of helmets while driving cannot be said to violate freedom of movement. Similarly, mere watching or surveying the offenders for keeping an eye on their movement and their activities is not infringing their right to movement.
(e) Freedom to reside and settle in any part of India
Sub- Clause (d) and (e) under this Article are co-related. If we have the right to move freely in the country we should also have the right to reside any settle anywhere we like, this is basic understanding. As this is corollary to the above sub- clause the restriction remains the same.
Case Law:
In the case of Dhan Bahadur Ghorti V State AIR 1953 Gau 61 (1952), a custom of a tribal area that does not allow Nepali or any foreigner to stay in that tribal area without the permission of the Deputy Commissioner was upheld to protect the interests of tribal people.
(f) Freedom to practise any profession or to carry on any occupation, trade or business
Every citizen is granted the freedom to engage in any profession, select any career, and establish any trade or business as they see fit or in accordance with their interests and aspirations under the terms of this article. However, the provision does not provide any business, trade, or vocation a monopoly. In accordance with this article, the freedom to practice also encompasses the right to not practice, as everyone is free to discontinue any company or occupation whenever they choose.
Case Law:
case of TMA Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481, it was observed that education can never be regarded as a trade or business where profit is the motive. But education will fall within the meaning of the expression ‘occupation’, which is defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living“.
Exploitation is a basic violation of the Indian Constitution’s Preamble and Article 39’s Directive Principle of State Policy, which encourages economic equity between individuals. Exploitation is the improper use of coercion to obtain another person’s services.
Human integrity is guaranteed by the right against exploitation, which is protected by Articles 23 and 24 of the Indian Constitution. preserving the freedom and human respect that the Indian Constitution was founded on. Indian constitution has specific safeguards to prevent the exploitation of weaker groups of society in order to protect against discrimination and foster personal liberty. It has been mentioned under Articles 23 and 24.
Article 23: This Article prohibits beggars, labour by force and other similar kinds of human trafficking. Any infringement of this clause will result in legal sanctions.
Article 23 (1) prohibits Traffic in human beings and begar and other similar forms of forced labour are forbidden, and anyone found in violation of this rule faces the legal penalities.
Article 23 (2) nothing in this article shall prevent State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste, or class or any of them.
An exception is made for compulsory service for public purpose, under clause (2) Although clause (2) does not say so, obviously the imposition of such service has to be by law, as a mere executive order of the State would,d not suffice for the purpose. It has been held that even if remuneration is paid for the labour still, if it is ‘forced’, then it is unconstitutional.
Article 35 – Empowers the parliament to make laws for punishing one who violates Article 23.
Article 24:Prohibition of employment of children in factories, etc. it means No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
A nation’s destiny lies in its children. Every country has a duty to provide for the health, nutrition, and education of its children in order to guarantee that they have a bright future. As a result, they will be able to develop into capable adults who will eventually advance and develop the nation as a whole. Article 24 is therefore interpreted in conjunction with Article 39(e) and Article (f).
Article 24 of the Indian Constitution Features
Under this Article, it is against the law to employ minors in dangerous jobs under the age of 14 when viewed in conjunction with Article 39(e) (f).
It guarantees the well-being and protection of youngsters.
Article 39, places a responsibility on the State to make sure that kids are not mistreated or made to work in dangerous jobs out of necessity.
It does not forbid using kids for constructive work.
Case Laws:
Deena v. Union of India, AIR 1983 SC 1155.Court held that if a prisoner is forced to do labour without giving him any remuneration, it is deemed to be forced labour and is violative of Article 23 of the Indian Constitution. This is because the prisoners are entitled to receive reasonable wages for the labour they did.
Dulal Samanta v. D.M., Howrah, AIR 1958 Cal. 365, the petitioner was served with a notice appointing him as a special police officer for a period of three months. He complained that this violated his fundamental right as it results in “forced labour”
The Court disregarded his appeal and held that conscription for services of police cannot be considered as either:
(i) beggar; or
(ii) traffic in human beings; or
(iii) any similar form of forced labour.
Hence, the notice given for the appointment of a person as a special police officer is not in prohibition to Article 23.
Traffic in human beings includes devadasis it was held in vishal Jeet Vs. Union of India AIR 1990 SC 1412
The Supreme Court has issued elaborate guidelines to Child labour. Child labour shall not be engaged in hazardous employment. there shall be set up child labour rehabilitation welfare fund in which offending employer should deposit 20,000. Adult member of such child should be given employment M. C Mehta Vs/. State of Tamil Nadu AIR 1997 SC 699.
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. The Court laid down guidelines for determination of bonded labourers and also provided that it is the duty of the state government to identify, release and rehabilitate the bonded labourers. It was held that any person who is employed as a bonded labour is deprived of his liberty. Such a person becomes a slave and his freedom in the matter of employment is completely taken away and forced labour is thrust upon him. It was also held that whenever it is shown that a worker is engaged in forced labour, the Court would presume he is doing so in consideration of some economic consideration and is, therefore, a bonded labour. This presumption can only be rebutted against by the employer and the state government if satisfactory evidence is provided for the same.
Conclusion;
Since the beginning of time, the powerful have abused the helpless. Exploitation is a widespread practise throughout much of India as well. In many parts of the nation, the upper castes and wealthier classes were taking advantage of the “untouchables” in various ways. For instance, many Bangladeshi and Nepali migrants are subjugated to forced labour in many sectors in India, such as brick kilns, carpet weaving, embroidery, etc. This is evident in the way that companies enlist them through fraud and debt servitude. Such abuse needs to end.
