Month: July 2023

Dying Declaration

Meaning:

A dying man “rarely lies,” according to Indian law. Alternative phrase: “Truth sits upon the lips of a dying man.” The concept of a dying declaration is explored in Section 32(1) of the Indian Evidence Act, of 1872. Article 32 focuses on cases involving people who are either missing or dead. ”Leterm Mortem” is the term for a death declaration. ”Words said before death” is what the phrase ”Leterm Mortem” means.

Even if it was not made under oath and the maker cannot be cross-examined, a dying declaration may be used as evidence. It deviates from the general norm against hearsay evidence. The rule of necessity and traditional religious beliefs govern whether a dying declaration is admissible as pertinent evidence. The reason for this necessity is that if the victim is the only person who saw the crime, then including his testimony could undermine the goals of justice. A dying declaration must, however, be made by a person who is competent to do so at the time; otherwise, it is not accepted. A pronouncement of death is typical.

introduced by the prosecution, but may also be used by the accused. The task of recording a dying pronouncement is crucial. The recording of a dying declaration should be done with extreme caution. A dying pronouncement keeps its full worth if it is carefully written down by the right person while keeping in mind its key components.

Object

The main object behind the Dying Declaration, in a nutshell, is:- It is a presumption that ”A person who is about to die would not lie”. It is also said that ”Truth sits on the lips of a person who is about to die”. The victim is an exclusive eyewitness and hence such evidence should not be excluded.

Who may record a dying declaration?

It is best that it is recorded by the magistrate.
If there is no time to call the magistrate, keeping in view the deteriorating condition of the declaration, it can be recorded by anybody e.g. public servant like a doctor or any other person.
It cannot be said that a dying declaration recorded by a police officer is always invalid.
If any dying declaration is not recorded by the competent Magistrate, it is better the signatures of the witnesses are taken who are present at the time of recording it.

Important facts to be remembered before recording Dying Declaration:
 The declaring was in a fit condition of mind to give the statement when the recording was started and remained in a fit condition of mind until the recording of the dying declaration is completed.
 The fact of the fit condition of mind of declaring can be best certified by the doctor.
 Yet, in cases where it was not possible to take fitness from the doctor, the dying declaration has retained its full sanctity if there are other witnesses to testify that declaring was in a fit condition of the mind which did not prevent him from making the dying declaration.
 However, it should not be under the influence of anybody or prepared by prompting, tutoring or imagination. If any dying declaration becomes suspicious, it will need corroboration. If a declarant made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are inconsistency or
contradictory, such dying declarations lose their value

Form Of Dying Declaration

There is no specific format for a proclamation of death. However, important details like who stabbed the deceased and what must be mentioned in the dying declaration. One can make a deathbed proclamation in any of the following ways: Whether in writing, speaking, gesturing, or using signs, Narratives can be used as a dying declaration. It is suggested that it be written in the language that the patient speaks and understands.

Question Answer Form

Questions and answers are the finest format for a deathbed pronouncement. However, care should be taken to ensure that the exact questions asked and the patient’s responses are recorded whenever a dying declaration is documented in the form of questions and answers.
It was decided that the deathbed declaration could not be disregarded for that reason alone when it was not recorded in question-and-answer format. A statement included in the story could sound more natural because it might present the victim’s side of the incident.

Signs & Gestures Form
In situations where a person is unable to talk or write, he or she can nod in agreement or disagreement and even make a lawful declaration before passing away.
The importance of sign language would depend on who recorded the signs, the gestures and nods used, the questions posed, whether they were straightforward or complex, and how clear and understandable the nods and motions were.

Oral Dying Declaration

The Hon’ble Apex Court stressed the need for such a declaration to be corroborated, particularly in a situation like this one where the injured party gave his mother an oral statement and she was an interested witness. Such a claim needs to be carefully and cautiously analyzed. For the purposes of Section 3, an oral statement from the person who was struck with a stick blow to the head and which was related by the witness who filed the F.I.R. was recognized as a reliable statement.

Exceptions To Dying Declaration

The exceptions of ‘Dying declaration’ stipulate, where the statements made by dying persons are not admissible:

If the cause of death of the deceased is not in question: If the deceased made statement before his death anything except the cause of his death, that declaration is not admissible in evidence.
If the declarer is not a competent witness: Declarer must be a competent witness. A dying declaration of a child is inadmissible. In Amar Singh v. State of Madhya Pradesh,1996 Cr LJ (MP) 1582, it is held that without proof of mental or physical fitness, the dying declaration is not reliable.
Inconsistent declaration: Inconsistent dying declaration has no evidential value.
Doubtful features: In Ramilaben v. State of Gujarat (AIR 2002 SC 2996): The injured died 7-8 hours after the incident, four dying declarations were recorded but none carried a medical certificate. There were other doubtful features too, so it is not acted upon.
Influenced declaration: It must be noted that a dying declaration should not be under the influence of anyone.
Untrue declaration: It is perfectly permissible to reject a part of a dying declaration if it is found to be untrue and if it can be separated.
Incomplete declaration: Incomplete declarations are not admissible.
If the statement relates to the death of another person: If a statement made by the deceased does not relate to his death, but to the death of another person, it is not relevant.
Contradictory statements: If a declarant made more than one dying declaration and all are contradictory, then all declarations lose their value.
Unsound person: The statement of unsound mind can not be relied upon.
If a dying declaration is not according to the prosecution: If a dying declaration is inconsistent with the case of prosecution it is not admissible.

Who May Record Dying Declaration?
a) Keeping in mind the deteriorating condition of the declarant, it can be recorded by anybody e.g. public servants like a doctor or any other person.
b) It cannot be said that a dying declaration recorded by a police officer is always invalid.

c) If any dying declaration is not recorded by the competent Magistrate, it is better that signature of the witnesses are taken who are present at the time of recording it.
Condition Precedents For Admissibility Of Dying Declaration:
a) The declarant who gave the dying declaration should die.
b) The dying declaration must be complete.
c) It must be voluntary and uninfluenced.
d)The cause of death must be explained by the declarant or at least the circumstances which resulted in his death must be explained.
e) The declarant who makes the dying declaration, must be conscious and coherent.
f) The declarant must be of sound state in mind.
g) The cause of death of the declarant must be in question

Evidentiary Value of Dying Declaration

The evidentiary value of a dying declaration depends upon the case-to-case and fact-to-fact. In K. R. Reddy v. Public Prosecutor [1976 (3) SCC 618] evidentiary value of dying declaration was observed as under:-
a) The dying declaration is undoubtedly admissible under section 32 and not a statement on oath so that its truth could be tested by cross-examination.
b) The court has to apply the scrutiny and the closest circumspection of the statement before acting upon it.
c) Great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination.
d) The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity
to observe and identify his assailants and that he was making the statement without any influence or rancour.
e) Once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to record the conviction even without further corroboration.

CASE LAWS:

In the case of State of Karnataka v. Shivalingappa 2001 (4) RCR(Criminal) 237 the Supreme Court held that As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file.

In the case, State of Gujarat v. RabriPanchaCri LJ. 1981; NOC: 171 (Guj), it was held that ” It retains its full value if it can justify that victim could identify the assailant, version narrated by a victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence”.

CONCLUSION:

No doubt dying declaration is an important piece of evidence to guide the courts in the onerous task of finding the truth. Though the opportunity for cross-examination is not given, still carries much weight. Courts have never been allergic to allowing conviction solely on the basis of the testimony of a witness who cannot be available before the court to testify the substance of the statement that forms the basis of its judgment. It is suggested that whenever a dying declaration is to be recorded it should be recorded very carefully keeping in view the sanctity that the courts attach to this piece of evidence. It retains its full value if it can justify that victim could identify the assailant, the version narrated by a victim is intrinsically sound and accords with probabilities. It is perfectly permissible to reject a part of a dying declaration if it is found to be untrue and if it can be separated. A conviction can be based on it without corroboration if it is true and voluntary. The dying declaration becomes unreliable if it is not as per the prosecution version.

Digital Personal Data Protection Bill 2022

The Digital Personal Data Protection Bill is a legislation that frames out the rights and duties of the citizen (Digital Nagrik) on one hand and the obligations to use collected data lawfully of the Data Fiduciary on the other hand. The bill is based on the following principles around the Data Economy:

The first principle is that the usage of personal data by organisations must be done in a manner that is lawful, fair to the individuals concerned and transparent to individuals.
The second principle of purpose limitation is that the personal data is used for the purposes for which it was collected.
The third principle of data minimisation is that only those items of personal data required for attaining a specific purpose must be collected.
The fourth principle of the accuracy of personal data is that reasonable effort is made to ensure that the personal data of the individual is accurate and kept up to date.
The fifth principle of storage limitation is that personal data is not stored perpetually by default. The storage should be limited to such duration as is necessary for the stated purpose for which personal data was collected.
The sixth principle is that reasonable safeguards are taken to ensure that there is no unauthorised collection or processing of personal data. This is intended to prevent a personal data breach.
The seventh principle is that the person who decides the purpose and means of processing personal data should be accountable for such processing. These principles have been used as the basis for personal data protection laws in various jurisdictions. The actual implementation of such laws has allowed the emergence of a more nuanced understanding of personal data protection wherein individual rights, public interest and ease of doing business especially for startups are balanced.

What is DPDP Bill, 2022?

The Ministry of Electronics and Information Technology drafted the DPDP Bill in 2022, replacing Personal Data Protection Bill, of 2019.
The Bill frames out the rights and duties of the citizen (Digital Nagrik) on one hand and the obligations to use collected data lawfully of the Data Fiduciary on the other hand.
It is one of the four proposed legislations in the IT and telecom sectors to provide the framework for the rapidly growing digital ecosystem.

What is meant by Data governance?

Data governance is the management and control of an organization’s data assets.
It ensures data is accurate, secure, compliant, and used effectively, through policies, standards, stewardship, quality management, security, privacy, and lifecycle management.

Who are Data fiduciaries?

Data fiduciaries – organizations or individuals- handle personal data on behalf of others, ensuring its privacy and protection.
It includes businesses, government agencies, service providers, and professionals- who process or store personal data- in compliance with applicable laws and regulations.

Who is a Data Principal?

The DPDP bill, 2022 denotes a data Principal- an individual who’s data is being collected.

What is Data Portability?

Ability of individuals– to transfer personal data from one platform, service, or organization to another.

What is Data Interoperability?

Ability of different systems platforms, or services -to seamlessly exchange and use data with one another.

Key Principles and Features of the DPDP Bill, 2022

Personal data usage should be lawful, fair, and transparent
Collection of minimum necessary data– only for the specific purposes
Personal data stored- limited to a fixed duration– not indefinitely
Implementing safeguards against unauthorized data collection and processing
The bill defines Data Principals and Data Fiduciaries
It grants rights such as information access, consent, and correction.
A Data Protection Board– ensures compliance, monitors, and penalises for data breach
Cross-border data transfer is allowed to specified countries with suitable data security
Exemptions may be granted based on user volume and national security
Empowers individuals with data control

The need for such a bill

Increasing use of the internet and the associated risks to individuals’ personal data
Increasing prevalence of cyber threats and Data breaches: the need for legal frameworks
Data monetization can compromise personal privacy- protecting individual privacy is crucial
The absence of writ proceedings against corporate actions; the need for a data protection law; remedies for privacy violations

Advantages of the DPDP Bill, 2022

Strengthens data protection measures and obligations to maintain the accuracy and security of personal data
Promotes responsible data management practices— data minimization, purposeful dissemination, and authorized collection and processing of personal data
Enhances user control and choice through data portability
Provisions for accountability and remedies in case of privacy breaches– legal remedies
Aligns India with international data protection standards, – smoother data transfers and trade relations with countries that prioritize privacy
Strikes a balance between data protection and national interests

Concerns raised over the bill

Wide-ranging exemptions for government agencies- undermine privacy protections
Insufficient safeguards for the right to privacy- discretionary powers to the government
Dilution of the role of the Data Protection Board- concerns about independence and effectiveness
Open-ended language in certain provisions— ambiguity and misuse of power
Lack of specific provisions for compensation in the case of data breaches
Potential infringement on the RTI Act- reduction in transparency and accountability
Challenges in standardization and compatibility for seamless data transfer and interoperability

Potential challenges in its implementation

Implementing the provisions is both a compliance burden and technically challenging
The requirement for local storage and processing of personal data: costs and operational complexities
Diverse and interconnected digital landscape
Complexities associated with cross-border data transfers
Striking a balance between protecting privacy rights and promoting innovation and economic growth
Keeping the legislation up-to-date and relevant to evolving data protection concerns

In comparison with other countries

The EU’s General Data Protection Regulation (GDPR) imposes– stringent requirements and extensive obligations on organizations handling personal data
India aims to align with GDPR to facilitate data transfers and trade relations
The US relies on sectoral laws and focuses on individual liberties and protection from government intrusion
China’s recently implemented Personal Information Protection Law (PIPL) and the Data Security Law (DSL)- individuals’ new rights over their personal data and impose restrictions on cross-border data transfers

India’s efforts for its data protection regime

In 2017, the Supreme Court’s decision in- K. S. Puttaswamy (Retd) vs Union of India, which recognized- right to privacy as a fundamental right– Indian Constitution under Article 21- laid the foundation for stronger data protection measures
B.N. Srikrishna to propose a framework for data protection, including- recommendations to strengthen privacy laws in India, – data processing restrictions, a Data Protection Authority, the right to be forgotten, and data localization
Information Technology Rules 2021– mandate social media platforms and intermediaries to exercise- greater diligence in handling content on their platforms

What more needs to be done?

Conduct thorough stakeholder consultations with- diverse perspectives and inputs
Strengthen privacy safeguards by- minimizing exemptions for government agencies
Independence and effectiveness of the Data Protection Board
Clarify and address concerns about- potential violations of the right to privacy
Provisions for data portability and the right to be forgotten
Evaluate and mitigate potential implications for the RTI
Continuously review and – update the legislation- emerging privacy challenges and technological advancements
Awareness and educate individuals about their privacy rights
International alignment with global privacy frameworks

Conclusion

The DPDP 2022 is a significant step towards safeguarding individuals’ privacy rights and regulating data practices but concerns remain regarding exemptions for government agencies and the independence of the Data Protection Board. With stakeholder collaboration, transparency, and continuous adaptation, we can empower individuals, foster innovation, and ensure a future where privacy and progress go hand in hand.

Extra-Judicial Killings in India

The Uttar Pradesh Special Task Force has lately encountered two persons who were wanted in connection with a murder case.
The incident has again stressed the issue of extra-judicial killings or hassles by security forces.

What Are Extra-Judicial Killings?

Extra-judicial killings occur when a person is killed by governmental authorities without a judicial decision or hail on the case. In India, it’s also known as extra-legal killing or hassle killing.

History of Extra-Judicial Killings in India
In history, the Indian key has seen a lot of effects that led to the current situation of encountering. Ancient Manusmriti and other ancient Hindu textbooks give sapience into the Indian felonious law system of history. The Manu- Smriti says that torture is necessary to stop crimes and keep society peaceful. The Indian lords used torture to uncover the verity and break crimes, clinging to the former system.
Medieval The rule of “ eye for an eye ” was upheld when Mughal autocrats were present. The British autocrats in India accepted torture as a system of questioning the indicted after the Mughals.
Present Despite the fact that the Indian bar is innovated on the principle of “ innocent until proven shamefaced, ” the Indian police still employ torture and demotion as styles of interrogation moment.

Encounter Laws in India?
1. No specific law: There’s no specific hassle law in India. But there are certain situations described by the Indian Penal Code in which a mercenary or a government reality can take another person’s life.
2. Only in tone- defence: The law allows the state authorities to kill another person during a disquisition only when it’s a matter of tone- defence. There are vittles in the Indian Penal Code citing the same.
3. IPC Section 100: countries that a person can take another person’s life only in the following situations
If the assault leads to another death else or a veritably serious injury as a consequence. still, satisfying unnatural lust, or hijacking, If the assault is carried out with the intent of rape. still, where he can not seek the help of public authorities for his emancipation If the assault is carried out with the intent of wrongfully enmeshing a person.

What’s the legislative status in India?
No Legislation – No law in India simply defines hassle killings.
Indian Penal law – Sections 96- 106 of the Indian Penal Code, 1860 deal with the Right to Private Defence. Under these sections, death in a hassle won’t amount to a felonious offence, when it’s done in tone- defence.
CrPC – Section 46 of the Criminal Procedure Code( CrPC), 1973 allows police officers to use any degree of force which is needed to arrest the indicted or help the indicted from escaping.
Supreme Court judgment The Supreme Court in Om Prakash Vs the State of Jharkhand( 2012) stated that extra-judicial killings aren’t honoured as legal by our felonious justice administration system and quantum to State- patronized terrorism.

Constitutionality of Extra-Judicial Killings
Extra-judicial killings also serve as an attack on the abecedarian rights of the citizens. The abecedarian rights which are violated because of these unlawful killings are
Article 21 – The right to life and particular liberty except according to procedure established by law.
Article 22 – The right to be defended against arrest and detention.

The Reason for Extra-judicial Killings
1. Support from politicians Indian political leaders sometimes tout the accomplishments of their state police in keeping the region’s peace, similar to the number of hassles they’ve recorded.
2. Support from the millions of People in general formerly in a while upholds these experience killings since they feel that the legal superintendent can not make a reasonable judgment.
3. Work stress When wrongdoing is executed, the police need to pursue settling it. Because there are roughly 150 police officers for every one million people in India, the police are constantly understaffed.
4. Weak mortal rights associations When it comes to censuring the killings, the State Human Rights Commission( SHRC) and the National Human Rights Commission( NHRC) aren’t as effective as they should be.
5. prices for hassles The experience encountered by slayers is compensated with financial prices, subventions and motivators to lead the kills.
6. Glorification of extra-judicial killings The hassle killers are occasionally viewed by the general public as icons who are chastising culprits. In Bollywood flicks, extrajudicial killings are glorified by having the idol engage in a battle and claim it to be justice.

What’s the status of extra-judicial killings in India?

5-fold increase A report states that the number of hassle killings has nearly multiplied by five over the once six times.
In the six times between 2016- 17 and 2021- 22, India’s enrollment of encountered-killing cases dropped by 15.
From 2016 to 2021, India recorded 813 hassle killings. Between 2021 and 2022, the number of cases increased by 69.5 per cent.
While there was a critical drop in these cases during the Coronavirus epidemic – from 112 in 2019- ’20 to 82 in 2020- ’21 – there was a 69.5 shaft the ensuing time with 139 cases.
State-wise analysis
In their unofficial “ Operation Langda ” charge, the Uttar Pradesh Police shot and wounded further than 3,300 culprits in 8,472 hassles.
Chhattisgarh had the most extrajudicial killings with 259 in six times since April 2016, followed by Uttar Pradesh with 110 and Assam with 79.
In the once six times, the number of extrajudicial killings in Uttar Pradesh has further than doubled.

Why do encounter killings admit the support of the millions?
The common man in India is veritably unsatisfied with the long and tiring police examinations and judicial procedures. occasionally, the indicted aren’t penalized because of the absence of evidence or are given less severe than they earn.
In such a situation, numerous believe that encountering killings are a way to speedy justice.

A negative effect of these murders

Loss of life The most egregious negative outgrowth of a fake hassle is the loss of life of an innocent person. However, they can end up killing an innocent person, If the police use inordinate force or fake substantiation.
Violation of mortal rights A fake hassle by the police is a violation of the abecedarian mortal right to life. It’s also a violation of the right to a fair trial and due process of law.
Damage to public trust When the police are set up to have been involved in a fake hassle, it can damage public trust in law enforcement. This can lead to increased distrust and hostility towards the police.
Increase in crime If the public loses trust in the police, they may be less likely to cooperate with law enforcement in examinations. This can lead to an increase in crime and a drop in public safety.
Rise of a retributive society Similar incidents lead to the rise of vengeance passions against society, government and police leading to the rise of new culprits.

How to control extra-judicial killings?

NHRC Guidelines
In March 1997, Justice M.N. Venkatachaliah (speaker of the NHRC), asked all countries and UTs to ensure that police follow the following set of guidelines in cases of Encountered killings
1. Launching an FIR At the point when the responsible for a Police headquarters gets data about the expirations in an experience, he’ll keep that data in the proper register.
2. Proper disquisition The information that’s entered shall be supposed sufficient to constitute a dubitation and immediate action must be taken to probe the applicable data and circumstances that led to the death in order to determine, if any, the nature and perpetrator of the offence.
3. Compensation if set up innocent It tends to be allowed to the wards of the departed when the bobbies are criminated grounded on the after-goods of the examination.
4. Independent Organization It’s applicable to relate the cases for disquisition to some other independent disquisition agency, similar to State CID, whenever the hassle party consists of police officers from the same police station. These guidelines were extended in 2010 by the NHRC to include
5. Authoritative Test An authoritative inquiry should be held in all cases of death which be throughout police exertion, as snappily as could be anticipated( immaculately in three months or lower).
6. Making a Commission Report Within 48 hours of death, the elderly supervisor of Police of the District I needed to report any police-related deaths to the Commission. Within three months, an alternate report containing information similar to a posthumous report and findings must be submitted to the Commission in all cases.

Supreme Court 16-point guidelines
1. In 2014, the Supreme Court in the PUCL Vs State of Maharashtra case formulated 16-point guidelines on extra-judicial killings. Some of the guidelines include prompt action, FIR enrollment, independent disquisition etc.

2. The National Human Rights Commission( NHRC) has also laid down strict guidelines that government officers must follow in the case of extra-judicial killing.

Forward Motion

Encounter killings must be thoroughly investigated if the rule of law is to be upheld.
Maintaining the rule of law is the responsibility of the state government, which also trains police officers on how to handle unexpected situations and protect individuals under their care. Furthermore, the criminal justice system must be completely exposed, and required police reforms must be put into effect. Officers participating in the growing number of bothersome killings need to be taught respect for moral rights. UN Convention against Torture: India should take quick action to ratify the Convention and pass the 2017 Prevention of Torture Bill. Strict implementation – Ensure that the guidelines on fake hassle deaths set forth by the NHRC and the Supreme Court are implemented and monitored strictly.

Conclusion

The “rule of law” should always take precedence over “the rule by gun.” The essential tenet of the rule of law is that everyone has the right to fundamental human rights and due process, even the worst criminal. In a society of law, all extrajudicial executions are prohibited unless they are committed in self-defense. Restoring lost confidence in the nation’s legal system and moving the procedure along quickly are urgently needed. In the Salwa Judum case (2011), the Supreme Court stated in primordial value that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.

Right to Constitutional Remedies: Heart and Soul of the Constitution

Introduction:

All part III of the Constitution of India ensures specific essential privileges to its residents, these freedoms incorporate the right to opportunity (as outlined by article 19 ), the right to correspondence (as should be visible in articles 14 and 15 ), the right against abuse (as identified in articles 23 and 24 ), and so forth. These privileges assume a significant part in aiding to safeguard and advance the freedoms of the people, as well as advancing uniformity. However, just announcing these freedoms wouldn’t have the option to guarantee that they keep on existing through the hardships of political life, the creators of the Constitution understood that assuming these privileges were to be genuinely made accessible to individuals, it needed to make these privileges enforceable by the legal executive to keep the regulations from staying simple paper regulations. It is with this acknowledgement that a right without a cure is just a trivial convention that the right to sacred cures was achieved in India.

This right to protected cure is discussed in Article 32 of the Constitution, meaning it is a key right in itself, making it an arrangement that is special to the Constitution of India. Under this article, if an individual accepts that they have been denied any of their principal privileges, they reserve the option to move toward the high court to get the expected lawful cures and get their freedoms upheld. Further, it gives the High Court, or some other court enabled by parliament, the ability to implement these central privileges of individuals through important instruments like the issuance of writs. The right to Sacred Cures is something that has been portrayed in Smash Singh V. Province of Delhi as an honour and obligation of the court to guarantee that the “privileges expected to be essential are kept central”, comparative feelings were reverberated by the court in Territory Of Madras versus V.G. Column. It was likewise expressed in Romesh Thappar V Province of Madras that the security of the freedoms of individuals lies at the actual focus of safeguarding a popularity-based lifestyle. The main exemption for the right to established cures that exists is in a circumstance where the President pronounces a public crisis under Article 352 of the Constitution then this right gets suspended for individuals, this implies that regardless of whether somebody accepts that their central privileges have been encroached, they will not be able to move toward the High Court to implement something very similar.
Even though this exemption has been broadly condemned, the producers of the Constitution accepted that it is a means to an end because the interests of the individual can’t be permitted to obstruct, or hurt, the interests of the state at large, and in compatibility of a similar the right to established cure can be diminished in such uncommon conditions.
Article 32 can likewise be utilized by the courts to grant satisfactory remuneration, the court contemplated that by giving financial pay, any comparative demonstrations will be dissuaded from now on. The court involved Article 32 to give remuneration in cases like Rudul Shah V. Association of India and Bhim Singh V. Territory of Jammu and Kashmir and repeated that in the event that they are not permitted to do as such under Article 32 then it would deliver the article futile in M.C Mehta.

WRITS

As we have previously talked about, to have the option to uphold the principal freedoms of individuals, the courts have been equipped with specific instruments. The main one of them is the ability to give writs.
A writ alludes to a composed request by a court with an important ward which the court uses to order a specific body to play out a predefined act or swear off playing out a demonstration. As we have previously seen, the High Court holds the option to give writs under Article 32, yet this power isn’t elite to the summit court. The High Courts of fitting locale additionally have the ability to give writs as given by Article 226 of the Indian Constitution, and this power isn’t to be presented to the High Courts in disparagement of Article 32.
Concerning the ward of the Great Court to utilize Article 226 to give writs, it had at first been set down in the Khajoor Singh case as well as the Saka Venkata Rao case that the power or government against whom the writ is to be given should be situated inside the regional locale of the Great Court. This position was changed by the eleventh Amendment of 1961 which expressed that any high court inside whose purview the reason for activity emerged would be permitted to give writs.
The ability to give writs is more extensive for the High Courts than it is for the High Court, this should be visible from the way that while the High Court can utilize its writ purview to authorize the major privileges of individuals, the High Courts have been provided the ability to give writs to maintain key freedoms as well as other Protected as well as lawful freedoms. An example of the Great Courts utilizing their writ ward to uphold established privileges should be visible on account of Narayan Prasad V. Territory of Chhattisgarh when two siblings were denied No Protest Authentications for the exchange of their property by the extraordinary court. They moved toward the High Court to uphold their right as given by Article 300-An of the Constitution, and this was maintained by the court who expressed that they should be conceded something similar since an established right has been allowed to them.

The writs are grouped into five kinds; these are talked about underneath:

The Writ of Habeas Corpus: The exacting interpretation of the writ is “to have the body”. This is utilized by the court to set free somebody who, legally speaking, has been improperly kept. It was held in Narayan V. Ishwarlal, that whether or not the writ is thoughtful or criminal would rely on the techniques in which the detainment was executed.

A significant component of the writ is that on account of habeas corpus, the convention of locus standi has been loose. This regulation expresses that main an individual who has a current immediate association with the case will be allowed to move toward the court for help. On account of this writ, this tenet was facilitated by the court on account of Sheela Barse V. Province of Maharashtra, this was finished in court since, supposing that there is what is going on where a kept individual can’t argue, some other party, for example, their family ought to be permitted to record a writ request for their sake.

Furthermore, regardless of whether somebody who has been confined composes a letter to an appointed authority, it tends to be utilized as adequate grounds to record the writ, this was held in Sunil Batra V. Delhi Organization. At last, the courts likewise have the ability to take suo moto insight and document a writ themselves. While managing a habeas corpus request, the courts may likewise investigate the legitimateness of the confinement without having the individual so kept, delivered before them. This was found on account of Kanu Sanyal V. Locale Judge.

When the writ is given by the court, the individual who has been unfairly confined is delivered under the watchful eye of the court, and in the event that the court observes that the detainment was not supported then it arranges their delivery. They can consider the confinement to be unlawful on grounds of due system laid out by regulation not being followed, or that the detainment was not made as per the law. In specific cases, the courts might try and venture to such an extreme as to grant praiseworthy harms, for example, was found on account of Bhim Singh.

This writ can, nonetheless, not be conjured in that frame of mind as where the detainment is a consequence of a legal procedure, the individual has been placed into limitation under a naturally legitimate regulation, or on the other hand if it is considered that the court doesn’t have the proper regional locale.

The Writ of Mandamus: Mandamus in a real sense signifies, ‘we request’, this writ is a type of order by the courts to different bodies, which could be protected, legal, or non-legal, or by a higher court to a lower court, to play out a particular demonstration, or prevent them from playing out a specific demonstration which falls outside the extent of their powers, these demonstrations should be required in nature and not optional.
It is essential to recall that this writ can’t be recorded against a confidential party who doesn’t have a legitimate obligation to carry out the role, it can likewise not be utilized against the President, as held in the S.P Gupta case, or lead representatives, as said in C.G Govindan V Province of Gujrat. It can likewise not be brought against sub-par officials who are limited by the headings given by their seniors. It can anyway be documented against a confidential individual in the event that it tends to be shown that they acted in conspiracy with a public power, this was set down in the instances of The Praga Devices Organization v. C.V. Imanual, and Sohanlal v. Association of India. The court has likewise expressed that the standard of locus standi is to be kept while giving this writ.

Courts can give the writ in a circumstance where there exists some legitimate right of the solicitor that has been encroached because of the non-execution of an obligation that a party, be it a public power or a confidential party, lawfully will undoubtedly perform but has not done as such.

A few situations where this writ was utilized by the court incorporate the instance of Rashid Ahmad V. Civil Board where the court held that regardless of whether a sufficient elective cure is accessible, it can’t act as a bar towards giving the writ regardless of whether it very well may be thought about by the court. Indeed, even in PUCL V. Association of India, the courts gave a proceeding with mandamus, and that implies that the state was expected to show up under the steady gaze of the court at normal stretches and show that they were doing whatever it may take to give the right to food under Article 21 of the constitution. Here the proceeding with mandamus was utilized by the court to consistently screen the state for a long time after the underlying suit was gotten 2001.

The Writ of Certiorari: Certiorari signifies ‘to ensure’. This writ is involved by higher courts as a type of order to a lower court or a lower semi-legal body to send the records of a procedure that is forthcoming before it to the higher court. This is typically done when it is accepted that the lower court doesn’t have the fundamental ward as was seen in Rafiq Khan V. Province of U.P where the Allahabad HC suppressed a request by the sub-divisional judge who had altered the request by the Panchayati Adalat to convict the blamed under the pertinent segments for the IPC in light of the fact that the justice missing the mark on expected locale to have the option to change orders.
It is additionally utilized assuming the lower court abuses the standard of normal equity while giving its judgment, or on the other hand on the off chance that there is a blunder of regulation made by the lower court that is evident apparently, i.e., they have obviously dismissed specific legal arrangements, this was found for the situation T.C Basappa V. T. Nagappa. The writ can’t be given in the event that the choice by the lower court is made because of a blunder in realities, and it must be documented against a lower court and not against a higher court or a court of equivalent standing, this was explained in Surya Dev Rai V. Smash Chander Rai.

It is essential to recall that the higher court just has a warning purview while giving this writ, and it can’t be utilized in that frame of mind of re-appraising locale. It likewise follows the convention of locus standi to an exceptionally rigid degree.

The Writ of Forbiddance: This is otherwise called a stay request, under this writ utilized by a higher court to preclude a lower court from proceeding with procedures or acting past their extent of abilities. The primary point behind the writ is to keep courts from acting external their extent of locale, as was found in East India Organization Ltd. V. The Gatherer of Customs as well as the Bengal Insusceptibility Co. Ltd case, and it is accessible while the procedures are forthcoming and before a request has been made.
The Writ of Quo Warranto: This writ is utilized to investigate the lawfulness of a case made by an individual or a power to act in some open office, it tries to check regardless of whether they are qualified for the situation by looking at the activities of the selecting authority. The fundamental thought behind having this writ is to keep somebody from serving in a position of authority that they are not qualified for to keep hurt from coming to people in general. This writ can be given by anybody, the circumstances for giving the writ are that the workplace can’t be private and should be a public one (this was expressed in Jamalpur Arya Samaj V. Dr. D. Smash ) which was made either by a Rule or by the Constitution. Further, it should be an extremely durable office and the writ must be given against an individual who is as of now holding the workplace or is somebody who was precluded from the workplace but won’t empty. This writ falls totally on the prudence of the courts.

CONSTITUTIONAL REMEDIES THROUGH PUBLIC INTEREST LITIGATION

A PIL alludes to a case that is embraced to address complaints of people in general and can be recorded by anybody. A PIL is recorded under Article 32 in the High Court, Article 226 in the High Court, and Segment 133 of the Code of Criminal Methods in a justice. The courts can likewise start the cycle on the gathering of a report, email, letter, and so forth. The PIL can be treated similarly as a writ request and when the court is fulfilled that the letter is from the oppressed party, it can start procedures. It is a basic piece of the Established Cures since it advances correspondence as well as the security of individual freedoms of individuals who may not be able to support themselves. Moreover, because of its economical nature, it tends to be made accessible to additional individuals and helps the courts in maintaining the freedoms of minorities and raising public mindfulness.
While the expectation behind acquainting PIL’s was assistance make equity more available to all areas of society, it has likewise drawn analysis. A portion of the analysis evened out towards PIL’s incorporates the way that the courts have abused PIL’s to exceed their limits and break the detachment of abilities by making strategies on subjects like contamination and inappropriate behaviour. Further, because of the sheer volume of PIL’s that get documented because of their cheap nature, besides the fact that it prompts an expansion in the weight of the courts, periodically they invest energy on unimportant PIL’s while overlooking additional squeezing concerns.
At the point when it was seen that there was uncontrolled maltreatment of PIL’s occurring, rules were set down with respect to PIL’s in the Province of Uttaranchal V. Balwant Singh where the court expressed that any individual who documents a paltry PIL should be fined up to Rs. 1 Lakh. It further said that the courts should check the certifications of the solicitor before they take up a PIL, and they should guarantee that the PIL contains a significant inquiry important to general society at large.

CONSTITUTIONAL REMEDIES AND RES JUDICATA

Res Judicata generally converts into a matter that has been chosen. That’s what the regulation expresses assuming a matter has proactively been concluded by a court of equipped purview, it is restricting on the gatherings except if upset by means of allure or update. The inquiry in this manner emerges, will an application under Article 32 be viable in the event that a comparable request has been dismissed by the High Court under Article 226? The standard isn’t just a simple detail, it tracks down its foundations in the advancement of public strategy.

The court held in Daryao V. Province of Uttar Pradesh that the convention of res judicata would stay a bar on the viability of a request under Article 32 under the steady gaze of the High Court assuming a similar has been chosen by the High Court under Article 226. Further, it is essential to take note that in a circumstance where a writ request is forthcoming under the steady gaze of a High Court, it can’t be documented under the steady gaze of the High Court, this was set down in PN Kumar V. Metropolitan Company of Delhi, in the event that such a circumstance was to emerge, the party should just be permitted to move to the High Court on claim.

Conclusion:

Articles 32 and 226 play a fantastic impact in empowering the courts to make equity more open to all segments of society. Through the standard legal survey, they have made the Constitution into a powerful record that is better acclimated to present-day times. Giving established solutions for individuals thanks to PIL’s has incomprehensibly helped the hindered speak loudly against the wrongs committed against them.
It is consequently that Article 32 has been considered to be a foundation of our majority rules government by previous CJI BP Gajendragadkar, M V Pylee noticed that the initial three segments of Article 32 assist with making the essential privileges genuine, and this, thusly, makes them the “delegated piece of the whole part”.
While these articles truly do furnish the legal executive with incredible powers to have the option to help people in general, it is important that customary checks be kept up on the use of this power by the courts, it must be seen that the Legal executive work with a degree of restriction and don’t violate their limits. All things considered, with incredible power comes extraordinary obligations.

Current Constitutionalism

Balancing Continuity & Evolution Constitutional texts worldwide are subject to two distinct modes of interpretation. One approach, known as “originalism”, which involves interpreting and applying the Constitution in alignment with its original intent at the time of drafting. The two primary tenets of originalism assert that the constitutional meaning was predetermined upon textual adoption and that the discernible historical meaning of the constitutional language carries legal significance, often prevailing in most circumstances.

In contrast, “living constitutionalism” adopts a more dynamic approach, frequently aligning with contemporary jurisprudence. Advocates of this theory contend that societal circumstances and ideals evolve, necessitating corresponding transformations in the legal content of constitutional doctrine. Acknowledging that the Constitution cannot remain static indefinitely, proponents assert that it must be amenable to the expectations and values of successive generations.

A living constitution demonstrates adaptability to new situations, evolves organically through time, and remains responsive to societal changes, all without requiring formal modification. Broad and Open-Ended Language – Foundation for Interpretation The phrase “living constitutionalism” is believed to have its origins in Howard Lee McBain’s book titled “The Living Constitution,” initially published in 1927. Living constitutionalism represents a legal theory and interpretative method within constitutional law that underscores the dynamic and evolving nature of the Constitution.

This perspective posits that the legal content of constitutional doctrine is subject to change in response to shifting circumstances and societal values. At its core, living constitutionalism advocates for a departure from rigidly adhering to the original intent or understanding of the Constitution’s framers at the time of its inception. Instead, it proposes that the Constitution should be interpreted in the context of contemporary conditions and cultural advancements.

However, it is often argued for a more adaptable and flexible approach to constitutional interpretation, recognizing the need for the Constitution to be responsive to the ever-changing requirements and ideals of society. Central to the living constitutionalism framework is the belief that the framers intentionally drafted the Constitution with broad and open-ended language, allowing for varied interpretations and future applications.

This approach contends that constitutional provisions should be given a dynamic and evolving meaning to address present-day social, political, and technological developments. As such, living constitutionalism promotes a view of the Constitution as a living and responsive document, capable of accommodating the evolving needs and aspirations of successive generations. Rejecting Originalism – Turning Point in Evolution of the Indian Constitution The Indian Constitution, a dynamic and living document, is presently perceived and applied as such, despite its historical evolution. Initial cases that arose soon after the Constitution’s enactment demonstrate an interpretation aligned with the framers’ intentions. The judgement on Supreme Court Advocates on Record Assn. v. Union of India W.P. 1303 OF 1987 marked a pivotal moment when the Court decisively rejected the originalism theory of interpretation, emphasizing that the Constitution should not be limited to the framers’ perspectives, constrained by the conditions and outlook of their time.

The Court acknowledged the unforeseen nature of contemporary issues, the existence of undiscussed matters, and controversial deferred issues with conflicting intentions. Preserving Core Values – The Focal Point in Jurisprudential Exploration Justice Kaul’s judgment further developed this perspective, affirming that the Constitution must adapt to reflect the evolving facets of modern society and that “core values” inherent in the Constitution manifest themselves diversely in varying ages, situations, and conditions, all while finding a strong foundation in the Preamble, which elevates human dignity. Also, the landmark K.S. Puttaswamy (2017) 10 SCC 1. judgement introduced two significant theoretical concepts in constitutional law, i.e., living constitutionalism and natural rights support. Although living constitutionalism is not explicitly enshrined in the Indian Constitution, the Supreme Court of India has embraced this approach in several monumental rulings.

Consequently, this approach prompted a series of landmark judgments, primarily focusing on the Parliament’s authority to amend the Constitution and the extent of such amendments. The Indian Constitution is a vibrant and adaptable instrument, continually responding to societal transformations, upholding its core values, and remaining receptive to interpretive nuances that foster a just and evolving legal landscape. The question of the Parliament’s constitutional amendment powers remains a focal point in the jurisprudential exploration of the Constitution’s dynamic character. Balancing Core Values and Societal Progress through Living Constitutionalism Preserving the bedrock of the Indian Constitution stands as a momentous undertaking in the seminal case of Sajjan Singh v. State of Rajasthan. AIR 1965 SC 845.

Embedded within the majority of the Indian Constitution are fundamental aspects that are deemed immutable. Justice Khanna discerns the principal advantage in the form of fundamental rights extended to all citizens. Notably, Article 368 of the Indian Constitution grants the Parliament the authority to amend any provision, encompassing Fundamental Rights. A profound jurisprudential debate ensued, wherein respondents in the landmark Golaknath Judgment I.C. Golaknath and Ors. v. State of Punjab and Anr. 1967 SCR (2) 762. contended that the framers did not intend for the Constitution to be rigid, while petitioners asserted that Parliament lacked the jurisdiction to modify basic rights. The Court ultimately ruled that Parliament could not alter the Fundamental Rights.

The landmark decision in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. ushered in the concept of living constitutionalism in India. At its core, this judgment centred on the pivotal question of Parliament’s power to amend any aspect of the Constitution, including Fundamental Rights. Through a majority verdict, the Supreme Court firmly held that while Parliament retains the authority to amend the Constitution, it is restrained from altering its fundamental structure or essential features.

Living Constitutionalism in Action In the Kesavananda Bharati case, the Court introduced the doctrine of basic structure, encompassing the notion that certain foundational aspects of the Constitution are impervious to amendment, as they constitute the very essence of the constitutional framework. Embracing a living constitutionalist approach, the Court acknowledges that the Constitution’s interpretation must safeguard its core values while adapting to the ever-evolving fabric of society. This jurisprudential stance ensures the preservation of the Constitution’s fundamental principles while allowing for pragmatic adaptations that cater to the progress and welfare of the nation.

Living constitutionalism is an interpretive paradigm in constitutional law that accentuates the dynamic and adaptive character of the Constitution, necessitating its interpretation to align with prevailing societal circumstances. This approach contends that the Constitution should be construed in light of present-day realities, reflecting evolving societal values and understandings of constitutional principles. Illustrative examples of living constitutionalism in action are evident in the interpretations of the Commerce Clause, the landmark Brown v. Board of Education decision, and the historic Obergefell v. Hodges Obergefell v. Hodges 576 U.S. 644 (2015) decision. In these instances, the application of living constitutionalism enabled the Constitution to respond to changing social dynamics and evolving conceptions of constitutional norms. Notwithstanding its detractors, proponents of living constitutionalism maintain that this approach fortifies the Constitution’s sustained relevance and efficacy in addressing contemporary challenges and safeguarding individual rights.

One Person Company

The incorporation of OPC into the legal system is a step that would promote the corporatization of microbusinesses and entrepreneurship with a less onerous legal framework so that the small business owner is not required to spend a lot of time, energy, and money on intricate legal compliances. Individuals will be able to contribute to economic progress thanks to this, and it will also create job opportunities. Under the Companies Act of 2013, the One Person Company, a sole proprietorship and company type of business, has been given concessional/relaxed conditions. Under the One Person Company (OPC) idea, the Companies Act of 2013 now allows a single national person to form a company.

Origin of the concept in India
In the report of the Dr. J.J. Irani Committee, the idea of OPC was floated. OPC was briefly mentioned by the Irani Committee in its report. The committee offered numerous classifications of firms in Chapter III, “Classification and Registration of Companies,” as shown below.

1 The concept of ‘One Person Company’ may be introduced in the Act with following characteristics :-
(a) OPC may be registered as a private Company with one member and may also have at least one director;
(b) Adequate safeguards in case of death/disability of the sole person should be provided through appointment of another
individual as Nominee Director. On the demise of the original director, the nominee director will manage the affairs of the company till the date of transmission of shares to legal heirsof the demised member.
(c) Letters ‘OPC’ to be suffixed with the name of One Person

Companies to distinguish it from other companies.”
OPC’s effect on Indian entrepreneurship In India, the idea of OPC is still in its infancy and needs more time to develop and be completely embraced by the corporate community. The OPC style of company organization is poised to overtake other business organization models in the future, particularly among small business owners. The advantages of using this idea are many, to name a few –

Minimal paper work and compliances
Ability to form a separate legal entity with just one member
Provision for conversion to other types of legal entities by induction of more members and amendment in the Memorandum of Association.
The One Person Company concept holds a bright future for small traders, entrepreneurs with low risk taking capacity, artisans and other service providers.
The OPC would act as a launch pad for such entrepreneurs to showcase their capabilities in the global arena.
The counterparts of Indian OPCs in Europe, United States and Australia have resulted in further strengthening of the economies in the respective countries. OPCs in India are aimed at structured, organised business units, having a separate legal entity ultimately playing a crucial role in further strengthening of the Indian economy.

One Person Company: As per section 2(62) of the Companies Act, 2013, “One Person Company” means a company which has only one person as a membe.

Salient features of OPC

The salient features of OPC are:

Desire for personal freedom that allows the Professional skilled person to adopt the business of his choice.
Personality driven passion and implementation of a business plan.
The desire of the entrepreneurial person to take extra risk and willingness to take additional responsibility.
Personal commitment to the business which is a sole idea of the person and close to his heart.
It is run by individuals yet OPCs are a separate legal entity similar to that of any registered corporate.
A One Person Company is incorporated as a private limited company.
It must have only one member at any point of time and may have only one director.
The member and nominee should be natural persons, Indian Citizens and resident in India. The term “resident in India” means a person who has stayed in India for a period of not less than 182 days during the immediately preceding one calendar year.
One person cannot incorporate more than one OPC or become nominee in more than one OPC.
If a member of OPC becomes a member in another OPC by virtue of his being nominee in that OPC then within 180 days he shall have to meet the eligibility criteria of being Member in one OPC.
OPC to lose its status if paid up capital exceeds Rs. 50 lakhs or average annual turnover is more than 2 crores in three immediate preceding consecutive years.

No minor shall become member or nominee of the One Person Company or hold share with beneficial interest.
Such Company cannot be incorporated or converted into a company under section 8 of the Companies Act, 2013.
Such Company cannot carry out Non Banking Financial Investment activities including investment in securities of any body corporate.
No such company can convert voluntarily into any kind of company unless 2 years have expired from the date of incorporation, except in cases where capital or turnover threshold limits are reached.
An existing private company other than a company registered under section 8 of the Act which has paid up share capital of Rs. 50 Lakhs or less or average annual turnover during the relevant period is Rs. 2 Crores or less may convert itself into one person company by passing a special resolution in the general meeting.

Adverse Possession

Introduction

The Limitation Act is a significant statute that establishes the window of time within which certain activities must have been completed. The limitation laws are there to inform people of their right to assert a property interest within a certain amount of time. One shouldn’t dwell on their rights for a lifetime. If the law does not specify a time frame for reserving rights or interests in property, there may be misunderstanding.

A person may assert ownership of another person’s land or property by continuous and unbroken possession for a predetermined amount of time under the legal notion of adverse possession. It thinks about hostile possession. Adverse possession has been a topic of discussion since it may violate the rights of property owners, even while it can offer a way to settle long-standing conflicts.

According to Section 3 of the Limitation Act, 1963, any lawsuit that has passed the statute of limitations set forth in this act will not be considered by the law. The person in possession gets ownership of the property through adverse possession when they are in possession of it against the will of the real owner and the real owner does not file a lawsuit to restore it within a set amount of time.

The Law Commission’s Latest Report and Recommendations

The Law Commission, a statutory authority mandated in many jurisdictions to study laws and make reform recommendations, recently looked into the subject of adverse possession. The report’s specifics may change depending on the jurisdiction, but its overall goal is to strike a compromise between upholding the rights of the real owner and ensuring transparency in real estate transactions.

The Law Commission of India has recommended against enlarging the period of limitation provided under Articles 64, 65, 111, or 112 of the Limitation Act, 1963, which encapsulates the law on adverse possession.

While Art. 64 deals with possession-only claims, Article 65 deals with possession suits based on title (The plaintiff will lose if the defendant establishes that he has the right to keep possession (honoring the plaintiff’s possession) as a lessee, licensee, mortgagee, etc.). (If evicted “otherwise than in due course of law,” the person has a right to receive their belongings back.) The plaintiff has the duty of proving his possession within 12 years under Article 64, while the defendant has the burden of proving when his ownership became unfavorable under Article 65.

To claim adverse possession, the occupier must prove that they have been in continuous, uninterrupted possession of the land for at least 12 years and that their possession was open, notorious, and hostile to the true owner.

Article 64 and 65 of the Limitation Act

The main conditions for asserting adverse possession are outlined in Articles 64 and 65 of the Limitation Act, which is included in numerous legal systems. Article 65 specifies the limitation period, which is normally between 10 and 30 years, within which the adverse possessor can claim ownership. Article 64 states that the possession must be actual, continuous, and uninterrupted for a particular amount of time. These laws ensure that simple possession without a valid title does not automatically result in ownership rights and give a legal foundation for adverse possession claims.

All claims for immovable property ownership based on title, specifically proprietary title as opposed to possessory title, are covered by Article 65, which is a stand-alone clause. Article 64 governs possession lawsuits based on possessory rights. The statute of limitations expires in accordance with Article 64 12 years after the date of possession. The well-known maxim that a restriction prohibits just the remedy but does not invalidate the title is an exception provided by Section 27, thus it must be read in conjunction with Section 27. This Section forbids the recovery of the property from the person in adverse possession after the limitation period has elapsed by someone who had a right to possession but allowed that right to be lost by doing nothing.

Case Laws where SC Held that One Cannot Sleep Over His Rights and that the Owner Needs to Be Aware

The Supreme Court has held that owners cannot simply “sleepover” their rights and must exercise due diligence and awareness regarding their property. The court has emphasized that if an owner neglects their property for an extended period, allowing an adverse possessor to openly and continuously occupy it, they may lose their rights due to their own inaction. These judgments underscore the importance of timely action and vigilance on the part of property owners to protect their interests:

Supreme Court Case Laws Recognizing the Rights of the Owner

The Supreme Court has recognized the rights of property owners in several cases involving adverse possession. In these judgments, the court emphasized the importance of protecting the genuine owner’s interests and held that adverse possession cannot be claimed against a person who is in possession of the property with a lawful title. The court’s decisions highlight the need to strike a balance between the interests of the adverse possessor and the rightful owner, ensuring that the rights of the latter are not unjustly infringed upon.

Case Laws Where the Supreme Court Recognized the Rights of the Owner

The Apex Court criticized the doctrine of adverse possession in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan (2009) 16 SCC 517, contending that it is illogical, irrational, and wholly inappropriate because it punishes the actual owner for failing to take any action within the limitation period. The dishonest person who has illegally gained ownership of the property is rewarded, however. Further, the Supreme Court directed the Union of India to amend and recheck the doctrine.

Gurudwara Sahib v. Gram Panchayat Village Sirthala (2014) 1 SCC 669 The Supreme Court in this case reiterated the principle that adverse possession cannot be claimed against a religious institution unless it is established that the institution has abandoned the property. The court emphasized that the burden of proof lies on the adverse possessor to establish abandonment, and mere non-use of the property does not necessarily indicate abandonment.

Why the Law is Criticized?

Unjust Dispossession: Adverse possession can result in the unjust dispossession of genuine property owners who may have been temporarily absent or unaware of the adverse possessor’s occupation. The law may unintentionally reward those who exploit legal technicalities to claim ownership over someone else’s property.

Inequitable Outcomes: Adverse possession can lead to inequitable outcomes where innocent property owners, who may have legitimate reasons for not asserting their rights, lose their property due to their inaction.

Encouraging Illegal Activities: Adverse possession laws can encourage trespassers and encroachers to occupy and utilize someone else’s property unlawfully with the intention of acquiring ownership rights over time. This can encourage illegal activities and undermine the rule of law.

From my perspective, adverse possession is a legal doctrine that poses challenges and often leads to unjust outcomes for genuine property owners. While it serves a purpose in resolving long-standing disputes and rewarding continuous possession, the potential for abuse and injustice cannot be ignored. Striking a balance between the interests of the adverse possessor and the rightful owner is crucial, as the current legal framework can sometimes result in a loss of property rights without due consideration of the owner’s rights and circumstances.

Arbitration Agreement

Any agreement must be based on the arbitration clause. In essence, it is a provision of the contract that subjects the arbitration on which the disagreement has arisen. Additionally, the arbitration request was made pursuant to the agreement from which the dispute has already arisen.

According to Section 7 of the Arbitration and Conciliation Act of 1996, an arbitration agreement is when two parties agree to submit all or a portion of future disputes between them involving a specific legal relationship, whether or not they are contractual in nature, to arbitration. Examples of relationships that are legal but not necessarily contractual include a doctor’s relationship with a patient or a lawyer’s relationship with a client..

Any two parties who sign into a contract must agree to arbitrate any disputes that may arise between them over the terms of the agreement, without resorting to the courts, and with the assistance of an arbitrator. The agreement should specify who will choose the arbitrator, what type of dispute will be decided by the arbitrator, where the arbitration will take place, etc.

The Arbitration Agreement must be signed by all parties, and the ruling is legally binding. You should establish this agreement if you are a party to any contract and you want to settle any disagreements with an Arbitrator instead of going to court.

An arbitration agreement functions similarly to a contingent contract in that its existence or enforcement is dependent on the occurrence of a disagreement between the parties. It is only enforceable if a dispute between the parties occurs.

Enforcement of Arbitration Agreement under Arbitration and Conciliation Act, 1996

There are two types of enforcement the first is the right to waive the power to solve the dispute or adjudicate with regard to the courts and secondly to provide jurisdiction to the arbitrators that is in the hands of the private hands.

The Enforcement of the agreement can be done under the UNCITRAL Model Law and the New York Conventions

The model law defines the Arbitration Agreement as follows:

“An agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not”

With regard to the New York Convention the definition states that

““Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration”

If the Applicable law is is based on the modern law then the parties will continue to the arbitration clause as the agreement. in other case the applicable law will require assent from both the parties.

Essentials of Arbitration Agreement

The existence of a dispute is an essential condition for arbitration. Where parties have effectively settled their disputes, they cannot refute the settlement and invoke an arbitration clause.

Written Agreement

An arbitration agreement must be in writing. As per Section 7 (4) of the Act, arbitration agreement is considered to be in writing, if it is contained in:

A document signed by the parties;
An exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
An exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not defined by another.

Intention

The goals of the parties are quite important. There is no set framework for an arbitration agreement, and it is not stated anywhere that terms like “arbitration” and “arbitrator” are necessary prerequisites. According to the leading case law on the subject, it must be clear from the arbitration agreement whether the parties intended to have their issue arbitrated.

Signature

The parties must agree to arbitrate disputes in writing. The agreement may be expressed in a written document that is signed by both parties and sets forth all of its provisions, or it may be expressed in a document that is signed by just one party but includes both the terms and the other party’s signature on an acceptance. It will be sufficient if one party signs the written proposal and the other party accepts it..

Attributes of an Arbitration Agreement

The Hon’ble Supreme Court in a judgment in a landmark case held that the following attributes must be present in an arbitration agreement:

The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement.
That the jurisdiction of the tribunal to decide the rights of the parties must derive from their consent, or from an order of the Court or from a statute, the terms of which make it clear that the process is to be arbitration.
The agreement must contemplate that substantive rights of the parties will be determined by the arbitration tribunal.
That the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal being fair and equal to both sides.
The agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law.
The agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.

Points To Remember While Drafting Arbitration Agreement

Seat of Arbitration – This provision designates the location of the arbitration. The procedural rules that control the arbitration process are determined by the arbitration’s seat. It does not have to be the same as the hearing location. Even though the location of the proceedings is different from the seat of arbitration, the latter is nevertheless taken into consideration. The location of the proceedings has no bearing whatsoever on the venue for the arbitration.
Procedure for Appointing Arbitrators – The appointment of arbitrators is covered under Section 11 of the Arbitration and Conciliation Act. Unless the parties specifically agree otherwise, it states that any individual of any nationality may be selected as an arbitrator. The process for choosing the arbitrator(s) is up to the parties to decide. In a three-arbitrator arbitration, if the parties are unable to come to an agreement, one arbitrator will be chosen by each party, who will then choose a third arbitrator to serve as the presiding arbitrator. The parties themselves, the appointed authority, or the arbitral institutions may all appoint the parties. The arbitrator chosen cannot be of the same country as the parties involved in the dispute where it involves an international commercial transaction.
Language of Arbitration – It’s crucial to include language referring to arbitration in the actual contract. It would become exceedingly challenging to decide and settle the issues, particularly in a country like ours where Hindi and English aren’t the only two languages spoken. Choosing the language of arbitration will also save you a ton of money because you won’t have to pay outrageous translation costs.
Number and Qualifications of Arbitrators – Parties may choose the number of arbitrators under Section 10 of the Arbitration and Conciliation Act of 1996, provided that the number is odd. If the number of arbitrators is not determined, there will only be one arbitrator on the arbitral panel..
Type of Arbitration –Institutional and ad hoc arbitration are the two options available to parties. If the parties elect the former, the parties shall adhere by the rules of the arbitral institutions. For any arbitrations they conduct, each organizations’ individual sets of arbitration rules would be applicable. Unlike Ad-hoc arbitrations, where the parties decide to hold the arbitration themselves and agree to it. The arbitral institutions are not consulted in ad hoc arbitrations.
Governing Law – This is the law that governs the main point of contention between the parties to a dispute. It is even known as the substantive law. The parties should mention the law they want to be governed by, failing which may give way to disputes in the future.
Name and Address of the Arbitration Institution – If the parties to the dispute are referring their disputes to an arbitration centre, then it is pertinent that they mention the name and address of the arbitration facility in clear and unambiguous words. Such inadvertent mistakes can lead to the nullification of the arbitration clause.

Termination of Arbitration Agreement under Law

Both parties must agree to end the arbitration agreement for it to be effective. One of the parties’ deaths could be another factor. Another typical explanation is that legal action has been taken against him due to the parties being insolvent or filing for bankruptcy. When it comes to arbitrators, many laws and jurisdictions do not suspend the arbitration process when an arbitrator passes away; nonetheless, in some jurisdictions, the death affects the proceedings.

Severability of the Arbitration Agreement

It was determined that a clause in a contract that is an accessory to the arbitration contract and forms a part of the agreement was so read. Therefore, it was determined that the arbitration agreement would continue to be invalid if the contract remained unenforceable. In its place, the idea of severability emerged, leading to the current status of the arbitration agreement as an independent, standalone document. The arbitration provision is not automatically rendered invalid by the contract’s unenforceable. These guidelines are specifically included in the Model Law..

Democratic decentralization and local self government

The Government of India introduced the concept of democratic decentralisation for the good governance and development of rural and urban areas at the grassroots level. To deal with poverty and sustainable development of the country, the key component is decentralisation of power in which the authority for some functionality and resources is taken from the state government and given to the local government.

The urge for decentralisation has come from many sources. Firstly, it has been prompted by the need to deliver the basic public goods such as food, housing and water from local units of administration. Secondly, most people in the developing countries live in rural areas, which are away from the national capital located in distant urban areas. Administration has to penetrate the rural areas and link these up with the nation as a whole. Thirdly, in many countries sociological diversities manifest themselves in ethnic, linguistic and religious differences. Administration needs to be decentralised in response to regional diversities.
Fourthly, regional and local resources can be utilised for the area development purposes, only if administration would move out to the regions and localities. Decentralisation, therefore, facilitates local planning and development with the help of local responses leading to better development outcomes. Fifthly, decentralisation has its own value in political and administrative terms. Politically, local participation in development activities, with intensive response paves the way for meaningful articulation of local demands.

In 1992, when the 73rd and 74th Constitutional Amendment Act passed that transfer of power to popularly elected local governments, it was a crucial step toward the decentralisation of power. The 73rd Constitutional Amendment Act introduced Panchayati Raj Institutions (PRIs), which were not a completely new concept; it has been in existence since centuries with the name, Gram Panchayat. Panchayati Raj Institutions (PRIs) are responsible for the development of the rural areas. The 74th Constitutional Amendment Act was introduced for the development of the urban areas where municipal bodies have the power and authority to plan for economic development and implementation of schemes.

Devolution of authority and resources are given to local governments on a permanent basis. The state government does not give the authority to gather tax from the public to the local government, but the state government funds them, handles tax, and provides staff so that they can carry out their responsibilities. Local government, which includes panchayats and municipalities, is a state subject. Consecutively, power and authority have devolved to panchayats and municipalities at the discretion of states.

It can be said that there is a design weakness in decentralization. Still, If we take a closer look at India’s political and social history, we can observe that there was a centralized power that regulated the country. Still, the problem at the grassroots levels is untouched, from which we can conclude that the state government has the authority to handle local governance. A study conducted by the Fourteenth Finance Commission shows that authority and power for five basic responsibilities – mainly sanitation, water supply, communications and roads, streetlight provision, and community asset management – have devolved into local self-government. According to the Constitution, panchayat and municipality elections should be held every five years.

The Constitution of India defines Panchayats as institutions of local self-government in rural India. The 73rd and 74th Amendment Acts, 1992 have Constitutionalism the Panchayats and Municipalities and is a step in the direction of speeding up the process of decentralisation and giving strength as well as stability to local institutions. They are historic in nature as they have got the potential to transform the existing character of our democracy (Palanithurai, 2009). Some of the features of the Acts are as follows:
 It has made mandatory for all the states to set up three tier (in smaller states having less than 20 lakh population – two tier) bodies both in the rural and the urban areas.
 Periodic elections to all the tiers at regular interval of five years and, if dissolved earlier, fresh elections to be held within six months.
 Reservation of seats for SCs and STs in all the panchayats and municipalties at all the levels in proportion to their population.
 One third reservation of seats for woman in panchayats and municipalities.
 All posts at all levels (with two exceptions) to be filled by direct elections.
 Indirect elections to the post of chairman at the intermediate and apex tiers. Creation of a State Election Commission to conduct elections to PRIs and municipal bodies.
 A State Finance Commission to be set up in each state every five years in order to review the financial position of the PRIs and municipal bodies.
 Devolution of powers to the panchayat bodies to perform 29 functions and to the municipal bodies to perform 18 functions as suggested in the Eleventh and Twelfth Schedules respectively.
 Organisation of gram sabhas and ward committees.
 The 74thConstitutional Amendment provides for constitution of District Planning Committee (DPC) and Metropolitan Planning Committee (MPC) to prepare a development plan.
Article 243M of the 73rd Constitutional Amendment exempts application of this Act to certain areas in the country. These areas are Fifth Schedule Areas, Sixth Schedule Areas, 1996 (PESA) and other tribal areas.
The tribal communities are the marginalised sections who have been for long isolated from the main stream development process. At the same time their customs and traditions are to be protected and remain uninterrupted. Their indigenous traditional institutions which play an important role are to be maintained. In order the strengthen the grass roots democracy in tribal areas, the Part IX of the Constitution which deals with panchayats has been specially extended through an Act of Parliament called Panchayats Extension to Scheduled V, Areas Act (PESA)1996.This provides for certain exclusive
and wide ranging powers to gram sabhas and panchayats in these areas

Issues with local Governments in India

The restriction is in the architecture of the financial streams that send money to local governments, as well as in a lack of personnel, untimely and postponed election and corruption.

Insufficient Funding

The money or amount provided to the local government is not enough to meet the basic requirement of the local authorities.

Inflexibility in Spending the Allocated Budget

Most of the money given to the local government is inflexible, which means the use of money is restricted to a particular use. For example, suppose a road is being constructed and it is required to build sewage near the road for its durability. But it cannot be built as this much flexibility is not given to the local government because of the constraints in the allocated budget.

Lack of Staff

There are not enough human resources to perform basic tasks. The human resources they get are hired by the higher-level department that too on deputation. That is why they (staff) do not feel accountable to the local government, they think they are accountable to the higher-level departments.

Untimely and Delayed Elections

The Constitution mandates elections within six months of completion of five years for the panchayats and municipalities to be held, but states often postpone the election.

Corruption

Contractors and criminals are mostly attracted to the local government election because of the large amount of money involved.

Conclusion

Democratic decentralization is the division of power and authority in the different layers of government that is Center, state, and local government. It is said that the more powerful decentralization is when more people contribute to governance. Decentralization has firmly been established both in rural as well as urban areas. Local democracy has deepened, political participation broadened and representation diversified as a result of 73rd and 74th Constitutional Amendment Acts. Decentralization has provided an institutionalized arena where the local population could participate in local government
decision making. The decentralisation process has now given rural and urban local bodies an opportunity to assume greater responsibility for rural and urban governance. The new system of decentralised governance has provided an element of continuity and enlarged the participatory process at the grassroots level. The states have taken certain measures to transfer functions and devolve funds upon the local bodies.

Lease Deed

A lease deed is a document or a written contract between the property owner or a landlord also known as lessor and the tenant or lessee, which contains all the terms and conditions, including the rent to be paid, security deposit to be made, etc. A lease deed is usually required, when the property is rented out for a long period of time. A deed has to be registered, if the lease period is for more than 11 months. In addition, registration of a lease deed is mandatory under Section 17 (D) of the Registration Act, 1908.

Similar to a rental agreement, there are some basic details that need to be included in a lease deed. Some of these include:

1. Name of the parties: The names of both the parties- the lessor, as well as the lessee needs to be included as mentioned on legal documents. Both the parties must make sure that there is no error in names of either party.

2. Lease Deed Period: This is the total period for which the lessee is allowed to lease the property. This is generally a larger time period, usually more than one year.

3. Lease Consideration: The lease consideration refers to the financial terms associated with the lease contract. This includes the lease amount payable by the lessee to the lessor at regular intervals (monthly/ quarterly/ bi-annually/ annually) as specified.

The Security Deposit paid to the lessor is also to be mentioned in the deed. This amount has to be returned by the lessor to the lessee at the end of the lease period.

4. Notice Period and Exit Clause: In case the lessor or the lessee feels the need to terminate the lease agreement before the lease period mentioned, they can do so by giving advance notice to the either party. This notice period may vary from one month to several months, or as desired by the lessor or lessee through mutual consideration.It also has the provision to compensate the lessor/ lessee for any loss incurred if the deed is terminated before the mentioned period.

5. Lease Deed Renewal Terms: This includes the terms and conditions for renewing the lease of the property after the mentioned time period. Usually, a renewal fee is charged by the lessor for lease renewal.

While at most times property leases are automatically renewed, it is at the discretion of the lessee whether to continue with the lease or not. Also, some lease agreements also allow ownership rights of the property to the lessee on payment of appropriate price at the end of the lease period.

6. Sub-Letting Clause: Sub-letting gives the right to the lessor to further lease the property to different parties and collect lease (or rent) from them in exchange. The main lessee may also make a profit from this sub-letting exercise.

Rental Agreement

Rental agreements on the other hand are entered into for a period of 11 months, with an option to renew the agreement at the expiration of the agreement. As a rental agreement that is 11 months long is just a license for the tenant to occupy the premises for a short duration, rent control laws do not apply. Further, rental agreements that are 11 months long allow the landlord to take more measures in case of eviction of tenant from the property. Hence, most landlords prefer to enter into a rental agreement that is 11 months long, with an option to renew at the end of the agreement period.

Difference between lease deed and Rental agreement

An agreement to lease generally covers the broad aspects of the lease, such as the duration, the rent payable, the rights of renewal of the lease, etc., while a lease deed also includes detail about the day-to-day operations of the lease.

Documents required for Rental agreement registration

The registration of a lease agreement is vital as it protects the landlords and tenants against any disputes in the future. One can register a rent agreement by approaching the sub-registrar’s office. One should note that the registration should be done at least four months before the date of deed expiration. After that, a fresh lease deed must be created.

The following documents are required for lease deed registration:

Identity proof, such as Aadhaar Card, Driving Licence, passport, etc., of the landlord and tenant.
Address proof of the authorised signatory, from both the parties.
Passport-sized colour photographs of the authorised signatory, from both the parties.
Company PAN Card and company seal/stamp, if it is a commercial property.
The original proof/evidence of ownership or title of the property.
Property documents, such as Index II or tax receipt of the property to be leased.
Route map of the property leased out.

Lease Deed Format

The lease deed format is a standard proforma for executing a lease deed between a Lessor and a Lesse. The Lease Deed format contains the details such as-

Name of the Lessor
Name of the Lessee
Term of Lease
Norms of Violation
Terms and Conditions
Notice Period
Details of the Property
Market Value of the Property
Lease Terms

Lease Deed format slightly varies according to the states of execution. The lease Deed Format can be modified in accordance with the conditions and preferences of both the parties. A sample Lease deed format is shown below.

Lease Deed Format

Sub-letting is a common practice wherein the original lessor does not have to worry about managing and collecting rent from various lessees. S/he deals with only one lessee and gets payment from one entity only. However, it is illegal to sub-let a property without including the sub-letting clause in the agreement.

Why lease deeds are for 99 years?

When the development authority allots development rights of the land to the builder, it is usually for a lease of 99 years. This implies that anyone who gets a leasehold land, will own it for 99 years, after which the ownership is given back to the landowner. The long-term leases control the transfer of land and its uses. This time span is seen as a safe interval choice, given that it will cover the lifespan of the lessee and will safeguard the ownership of the lessor.

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Meaning:

Object

Form Of Dying Declaration

Exceptions To Dying Declaration

Evidentiary Value of Dying Declaration

CASE LAWS:

CONCLUSION:

What is DPDP Bill, 2022?

What is meant by Data governance?

Who are Data fiduciaries?

Who is a Data Principal?

What is Data Portability?

What is Data Interoperability?

Key Principles and Features of the DPDP Bill, 2022

The need for such a bill

Advantages of the DPDP Bill, 2022

Concerns raised over the bill

Potential challenges in its implementation

In comparison with other countries

India’s efforts for its data protection regime

What more needs to be done?

Conclusion

What Are Extra-Judicial Killings?

What’s the status of extra-judicial killings in India?

A negative effect of these murders

How to control extra-judicial killings?

Forward Motion

Conclusion

WRITS

The writs are grouped into five kinds; these are talked about underneath:

CONSTITUTIONAL REMEDIES AND RES JUDICATA

Conclusion:

Salient features of OPC

Introduction

The Law Commission’s Latest Report and Recommendations

Article 64 and 65 of the Limitation Act

Case Laws where SC Held that One Cannot Sleep Over His Rights and that the Owner Needs to Be Aware

Supreme Court Case Laws Recognizing the Rights of the Owner

Case Laws Where the Supreme Court Recognized the Rights of the Owner

Why the Law is Criticized?

Enforcement of Arbitration Agreement under Arbitration and Conciliation Act, 1996

Essentials of Arbitration Agreement

Attributes of an Arbitration Agreement

Points To Remember While Drafting Arbitration Agreement

Termination of Arbitration Agreement under Law

Severability of the Arbitration Agreement

Issues with local Governments in India

Insufficient Funding

Inflexibility in Spending the Allocated Budget

Lack of Staff

Untimely and Delayed Elections

Corruption

Conclusion

Rental Agreement

Difference between lease deed and Rental agreement

Documents required for Rental agreement registration

Lease Deed Format

Why lease deeds are for 99 years?

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