A-21 Flashcards
Procedure established by law VS Due process
Due process:
- Includes elements of natural justice and fair application of law. ( You can’t have unfair laws. Just by having a law doesn’t give you to the authority to restrict life just because you have a law. The Law which imposes restrictions on the right, the grounds of which the restriction is to be imposed must be fair and the procedure for the imposition of the restriction should also be fair. FAIR APPLICATION OF LAW )
A K Gopalan Case (1950) : The court upheld procedure established by law
maneka Gandhi vs UOI (1978) : A-19 and 21 are not watertight compartments and test of reasonableness must apply to A-21 as it does to A-19; therefore, due process was bought to A-21.
Right to Die
Suicide:
As per the BNS, attempting suicide is not a crime. ( Earlier Sec-309 of the IPC has been repealed.)
Abetment to suicide is still a crim under Sec-108 of the BNS.
Arguments in favour of decriminalisation of suicide:
1. Attempted crime vs commission of crime distinction
2. Penalising attempted suicide amounts to violation of Right to life. ( The person is disturben mentally, you should councel/take care of him/her )
3. It would bring Indian laws to global wavelength.
4. Right to die has always been reconised int he Indian phylosophy. ( Temple of god VS priosn for the soul argument. It was introduced as a result of victorian christian morality )
5. Higher number of suicides reflects failure of society. It also compromises treatment during the golden hour. ( Medico legal cases )
6. Prosecuting attempted suicide survivors clogs the judicial system without resolving the root cause. Violates A-21 of Right to live with dignity.
Arguments Against decriminalisation:
1. Based on the individualistic tradition of capitalism, where everything is perceived as private propoerty.
2. The opposite of Right to life can’t be considered a right as one cannot resume that right.
3. The state has a duty to prevent violence in society, even if it’s self-inflicted.
4. Might lead to weaponisation of suicide against state for various demands which may even lead to law and order disturbances. Authorities might struggle to distinguish between genuine cases and politically motivated attacks.
5. Though penalising the victim might not be the appropriate approach but completely letting go of this provision might shift the responsiblity away from the state and in large the society of losing a productive member of the community.
-> The law commission in 1971 and 2008 recommended the repeal Section-309 of the IPC.
Apex court’s views:
-> P Rathinam Case (1994): Penalising attempted suicide violates Right to life.
-> Gyan Kaur Case (1996): Court upheld the constitutionality of Section-309 of the IPC stating the distinction between desirability of law vs constitutionality of law. Court further held the Right to life does not include Right to die but includes the Right to die with dignity.
-> Section-115 of the Mental Healthcare Act 2017 considerably reduced the scope of SEction-309 of the IPC.
-> In the new BNS Section-309 has not been retained.
Euthanasia:
1. Active ( You inject a lethal drug )
2. Passive: Voluntary, Involuntary ( Decided by the patient, Decided by the family )
+ve:
1. Cost of keeping persons indefinitely on life support.
2. Shortage of hospital beds in country.
3. Already practiced informally.
4. Ends individual suffering.
-ve:
1. Against hyptocratic oath
2. Can be abused in the case of involuntary euthanasia.
3. Leaves no room for miracles.
4. It would stop research on crippling illnesses.
Aruna Shaunbagh Case (2011):
-> Court allowed passive euthanasia for people in PVS. ( It allowed Euthanasia in principle but rejected the request for Aruna Shaunbagh )
-> Court said each request shall be disposed off by a division bench of the HC after seeking the opinion of a panel of 3 doctors
Common Cause case (2018):
-> The SC upheld the living will/advanced medical directive and laid down elaborate guidelines for performing euthanasia.
-> In 2023 the SC simplified the guidelines:
1. Earlier the judicial magistrate had to countersign the living, now attestation by a notary or any gazetted officer would suffice.
2. Earlier living will was kept in the custody of district court now to be part of national digital health record which can be accessed by hospitals and doctors from any part of the country.
3. Earlier the primary board of doctors was to consist of 4 doctors with 20 years of experience. NOw 3 including the treating physicians and 2 others with 5 years of experience.
4. Earlier no time frame, now 48 hours
5. Ealirer secondary board by DC, now by Hospital
6. In case one is aggreived of the board’s decision you can approach the HC which will constitute a board whose decision will be final.
Right to Life Expanded
A-21 is like a canopy. Has become a repository of most of the Human Rights recognised globally. Though the wording of the article is negatively worded but with so many interpretations and the scope having been expanded the SC has turned negative obligation into a positive one.
Ex. Right to - heatlh, healthy environment, Education, privacy, shelter, livelihood ( Olga Tellis case 1985 - Pavement dwellers case ), Emergency medical aid, Fair and speedy trial, dignity, Free legal aid, Reputation, information, peaceful sleep etc.
-> Ranjeet Sinh Case (2024)/Great Indian Bustard case : RIght to be protected against adverse consequences of climate change is a FR.
Consequences of indiscriminate expansion of scope:
1. Paucity of resources
2. Mere enumeration does not make the right available. ( Ex. Right to education needed legislation for it’s availment )
3. Some of these rights lack concreteness and beyong the governement’s implementation capacity. ( Ex. How can you provide right to peaceful sleep )
Right to Dignity:
-> The Right to Dignity guarantees that every individual is treated with respect, self-worth, and equality, free from humiliation, exploitation, or discrimination. It recognizes that all human beings possess inherent value and must be allowed to live with honor and respect.
Essence/Importance of Right to Dignity:
1. It’s fundamental to human life and freedom. Without dignity life becomes degrading and oppressive. Every human has the right to be treated with respect and fairness.
2. Prevents Exploitation and Inhumane treatment. ( A-23 )
3. Ensures equality and non-discrimination. Dignity is the foundation of equality, ensuring that no person is treated inferior due to religion, race, caste, sex etc.
4. Protects against Public and Private humiliation.
5. Without Right to dignity you have no right to privacy or personal autonomy as both ensure dignity.
6. Essential for mental and emotional well being. Lack of dignity leads to low or no self growth, depression.
7. It allows right to live with self respect. Dignity means living without fear, oppression or being treated as an object.
8. Dignity extends beyond life ensuring individuals are not forced to suffer unbearably and have the right to make their own personal medical decisions.
9. Right to dignity is the foundation of human rights.
Handcuffing:
-> Sunil Gupta Case (1990): Handcuffing is an affront to human dignity and therefore unconstitutional. It should be the last resort even for alleged heinous offences.
-> Section-43 of the BNSS legitimises it in the following cases:
1. Discretion of the police officer keeping in view the nature and gravity of the offence.
2. Serious offences against state or individual
3. Habitual offenders.
4. Who have escaped police custody.
Two finger test: ( Per vaginum examination )
-> Shailendra Kumar Rai Case (2022):
1. A person who conducts this test shall be guilty of misconduct and liable for prosecution
2. Has no scientific validity.
3. Re-traumatises the woman.
4. It’s an affront to her dignity and privacy.
Capital Punishment
+ve:
1. It has a deterrent effect ( It’s not the severity of the punishment but the certainity of it which is a bigger deterrent )
2. brings a sense of closure the the victim’s family. ( The entire purpose of the criminal justice system is oriented towards providing JUSTICE. Not your feeling of closure/ need for retribution )
3. Should be retained for it’s symbolic value as it conveys collective sense of anguish of the community with respect to certain crimes which cannot be tolerated.
4. Immanuel Kant, on the other hand, argued for retributive justice, stating, “Whoever has committed murder must die,” supporting the notion that punishment must be proportionate to the crime.
-ve:
1. It can never be right to do injustice or return it or ward off suffering of evil by doing it in return.
2. It is irreversible. ( A lot of innocents have been sentenced to death )
3. It amounts to cruel punishment. ( But don’t they deserve cuelty? )
4. It endorses the principle of retributive justice. The purpose of any sentence is to a) Punish, b) Deter, c) To reform.
5. Capital punishment often comes to people without capital.
6. Deterrent effect is a myth:
-> Consistently in the US homicide rates have been higherin the retentionist states as opposed to the abolishnists states.
-> Murder rates in India have declined from 4.6/lakh (1992) to 2.6/lakh (2013) to 2.49/lakh (2017) which coincides with declining number of executions.
-> It does not deter violent crimes such as terrorism. On the contrary it may induce revenge attacks and turn the terrorist into a martyr.
-> It’s not the severity but the certainity of punishment, which is a bigger deterrent.
7. 2/3rd of the nations have abolished in law or practice or both.
8. Several countries which have abolished capital punishment avoid negotiating legal assistance treaties with India.
9. Law commission in it’s 35th report 1967 had endorsed CP but reviewing it’s own stand in it’s 262nd report 2015, it opposed CP except for terror related offences.
10. International criminal court at the Hague and the Internatinal war crimes tribunals set up by the UN to prosecute genocidal crimes in the erstwhile Yugoslavia, Lebanon, and Sierra Leone both exclude death sentences.
11. The South African constitutional court found CP to be unconstitutional (1995), as at every stage there is an element of chance and the outcome may depend on:
a) Manner of investigation
b) Presentation of case by the prosecutor
c) How effectively the accused is defended
d) Personality and attitude of the judge
e) Financial capacity of accused to get sound legal help
12. In the US in the Furman vs State of Georgia (1972) declared CP to be unconstitutional and in the case of Greg vs State of Georgia (1976) CP was reinstated.
13. While criminals may have committed unspeakable acts, should the state stoop to their level? A justice system is meant to be dispassionate and principled rather than vengeful.
14. An alternative to the death penalty is life imprisonment without the possibility of parole, ensuring that criminals are removed from society permanently without violating the principle of the right to life.
=> No matter how grave the crime, a civilised society must uphold principles of justice rather than vengence. Even though the criminal might be deemed to be a “degenerate”, the legal system is not infalliable.
** In the PUCL vs UOI (1997) case, the SC held that even hardened criminals have the right to life and the state cannnot resort to arbitrary killings.
Death Penalty Jurisprudence in India:
-> Bachan Sinch (1980):
1. Punishment must be proportionate to the crime.
2. CP must be awarded in the RAREST OF RARE cases when the alternative of lifer is unquestionably foreclosed.
3.Sec-354 of CRPC now Section-393 of the BNSS must always be borne in mind. ( For Homicides lifer is the norm, death the exception. Judge has to provide special reasons for death sentence. )
4. While deciding such cases 2 sets of factors must be considered.
-> Aggrevating factors ( Circumstances of the crime ), Mitigating factors ( Circumstances of the criminal )
-> Macchi Singh case (1983):
- Conception of Balance sheet theory.
- Categorisation of RAREST OF RARE:
1. Manner of commission of crime
2. Anti social nature of the crime ( Ex. Bride burining, Communal killings )
3. Motive behind the crime. ( Motive which displays extreme moral depravity. Ex. Killing for money )
4. Magnitude of the crime. ( Ex. Serial killers, Recidivism )
5. Personality of the victim. ( Ex. Helpless child, old person, mentally ill person, leader of the masses )
-> Rabji Case (1996):
- Court held while decided violent crimes, only aggrevating factors to be considered and mitigating factors can be ignored.
-> Bariyar Case (2009):
- COurt brough back mitigating factors but without abandoning balance sheet theory.
-> Sangeet Case (2012):
- Balance sheet theory was finally discarded.
Problems with RAREST OF RARE Doctrine:
1. Categorisation is vague and ambiguous.
2. Subjective application which is often not free from public opinion or media influence.
3. Arbitrary usage. ( B/w 2000-2015, 1790 people were sentence to death by trial courts. Of these 55% of cases were commuted by the HC and in 27% cases the accused were acquitted. )
CLEMENCY
A-72 (P), A-161 (G)
Rationale behind such powers:
1. To correct possible judicial errors.
2. New facts may come light later.
3. To correct any unduly harsh punishment.
4. To deal with the issue of obsolete laws. ( Ex. Sec-377 of the IPC )
Components of Clemency:
1. Pardon - Absolved of the crime and free to go
2. Commutation - Changing the nature/character of the sentence.
3. Remission - Reducing the sentence without changing the character
4. Respite - Sentence reduced on account of a special fact. (Ex. Pregnant woman )
5. Reprieve - Temporary stay on the execution of death sentence pending the completion of clemency proceedings with the head of state
Statutory powers of Remission and Commutation:
-> Section - 473, 474, 475 of the BNSS.
-> Manu Ram Case (1980) - Constitutional powers of clemency override the statutory powers of the CRPC (BNSS).
Jurisdiction of presidential clemency:
-> All death sentences. ( Commutation can be done by governor as well but pardoning of death sentence can only be done by the President )
-> All cases of court marshals.
-> All cases where punishment is for an offence against a law to which the executive power of the union extends.
Apex Court’s views on clemency:
-> Keher Singh Case (1989) :
1.Courts cannot question the President’s decision on it’s merits but have a limited power of JR to ensure all relevant materials are considered before coming to a conclusion.
2. The petitioner cannot insist on a oral hearing in front of the P/G.
3. The president can examine the evidence afresh.
4. The president does not act a a court of appeal. His powers are independent of the Judiciary.
5. Clemency powers are to be exercised on the advise of the council of ministers.
6. Court can’t lay down any guidelines for the exercise of these powers.
Epuru Sudhakar Case (2006):
1. Clemency powers are prone to misuse and thus the courts shall exercise limited power of JR in the following cases:
a) If the order is passed without application of mind.
b) If it’s passed with a malafide intent.
c) It is based on completely irrelevant consideration.
d) If it suffers from arbitraryness.
2. Clemency cannot be shown on undue considerations of caste, religion or political loyalty. It’s not a private act of grace, the principle consideration should be of the interest of society and not that of the convict.
Recent issues:
1. Undue delay in the execution of death sentence.
2. Hurried executions. ( Ex. Afzal Guru case )
-> Triveni Behn case (1989) : Unde delay in execution of death sentence violates A-20 and A-21 and is therefore a valid ground for commutation.
-> Shatrugahn Chouhan case (2014):
1. In deciding commutation the supervening events must be considered. Undue delay and insanity of the convict are valid supervening events to warrant commutation of death sentence.
2. No solitary confinement of death row convicts.
3. Minimum of 14 days gap from the point when all remedies have been exhausted to the point of hanging.
4. Regular mental health evaluation of all death row convicts.
5. Postmortum of all executed convicts to establish the cause of death.
Dealing with delays:
1. In several countires there exists a clemency or pardons board which advises the head of State. Ex. Malaysia
2. Advisory committees including attorney general exist in some countries.
3. Constitutions of various states in the US designate the institutiona that would exercise clemency powers. In some states the governor is a member of such an institution In some states the governor can’t act contrary to the advise of the designated institution.
Solutions:
1. Fix timeframes. ( Sec-472 of the BNSS provides the HM 60 days within which the application must be sent to the P but no time frame mentioned for him ).
2. Fast track death penalty review process - Special fast track benches should be designated by the SC/HC. Once the judgement has been delivered the clemency proceedings should start automatically without waiting for their filing.
3. Structure guidellines to be developed and codified on how to evaluate petitions ensuring uniformity and transparency.
4. Curb the misuse of delays by the convicts - A one-petition rule should be enforced.
5. Digital and transparent tracking system - A centralised digital system should be deployed where the status of these cases can be tracked by the courts, public.
=> Delays in clemency and execution undermine justice and fairness. Justice delayed is justice denied. These issues must be treated with utmost importance and their execution should be carried out without unnecessary delays to ensure the trust of the society in the criminal justice system.
Viability of a pardon’s board in India:
1. Would require a constitutional amendment.
2. Advice can’t be made binding on the government, and if the government deviates from the recommendation, it would create needless controversy.
3. A notional timeframe of 6 months may be stipulated, and the government must explain any delay beyond it.
*** Sec-472 of the BNSS -> Mercy peition must be decided by the home ministry within 60 days. ( Must send recommendation to the P but no time frame withing which the P must decide )
4. If not efficiently structured, it could add another layer of bureaucracy contribution to further delays.
5. State vs Central conflict must be addressed.
+ve:
1. Could reduce delays.
2. Inclusion of lawyers, judges, human rights activists, psychologists could provide balanced and well reasoned evaluation of cases.
3. A formalised process can help in increasing transparency and reducing arbitrariness.
4. Reduces public controversy as an independent review process will nullify the involvement of other stakeholders.
5. Strengthen’s India’s human rights image.
6. The board can handle all the technicalities while the President/Governor can make a final informed decision.
Union of India vs Sriharan/Murugan (2015):
1. Double dip is allowed.
2. Remission can’e be extended on suo moto basis.
3. Where the crime has been investigated by the CBI, the state government can grant remission only with the concurrence of the centre.
4. The court can insist while awarding a lifer a period longer than 14 years before remission can be granted.
A G Perarivalan Case (2022):
1. Governor’s exervice of clemency powers must be on the advice on council of ministers. He has no discretion in the matter.
2. Any government order extending clemency can be issues without the explicit consent of the governor. It’s nothing more than a matter of constitutional courtsey to seek his approval in such cases.
Bilkis Bano vs. UOI (2024):
-> Gujarat government was not the appropriate government to exercise remission powers as the case was tried in Maharashtra.’
Section - 472 of the BNSS:
1. 60 day time frame for the government to send their recommendation
2. No JR of the president’s decision and any question as to the arriving of the decision shall not be inquired into by any court of law.
Parole: Short-term for meeting family emergencies, Longterm is subject to conditions and not a right
Furlough: Given in case of long term imprisonment to break the monotony of prison life and to allow the prisoner to retain social and familial ties. May be regarded as a right but is not an absolute right.
Right to life and other living beings
- Right to life includes that of all living beings
- The court has invoked the universal declaration of animal welfare that include 5 freedoms of animals:
a) Freedom from Hunger, thirst and malnutrition
b) Freedom from physical discomfort
c) Freedom from pain, injury and disease
d) Freedom from fear and distress
e) Freedom to express normal patterns of behaviour. - These shoud be recognised as FR of animals
- Speciesism must be dealt with in the same was as racism:
(Ex. A-51, A-51A(g), A-48A ) -> Court has moved from the anthropocentric interpretation to biocentric interpretation of rights.
Prevention of cruelty to Animals Act (1960): ( Entry-17 of concurrent list )
-> In 2011, the GOI added bulls to the schedule of the act, effectively banning Jalikattu.
-> In 2014 the apex court upheld the ban in the A.Nagraj Case (2014).
-> In 2017 the Tamil Nadu government approved an ordinance for the same invoking rights under A-29(1).
Animal Welfare board vs Union Of India (2023): The SC upheld the validity of Jalikattu with the condition that the state must ensure the safety of the animal.
Rivers as legal persons:
1. In 2017, Whangami in NZ became the 1st river in the world to be given legal human status.
2. Same year the UK HC declared Ganga and Yamuna to be living persons and declared the director of Namami Gange program, chief secretary and Advocate general of UK to server as parents of these rivers. This was overturned by the SC.
LGBTQ
Nalsa vs UOI (2014):
-> Court recognised transgender as a 3rd gender
1. Rejected the binary conception of gender. A-14 can’t be denied to any person ( Not only males and females but also those who consider themselves neither).
2. Any discrimination against transgenders would violate A-15 ( Discrimination on ground of sex )
3. A-19(1)(a) includes the freedom to express one’s chosen gender identity.
4. Self determination of gender is an integral part of one’ autonomy under A-21.
5. Court directed teh government to extend OBC benefits to transgenders as they are socially and educationally backward.
6. Court invoked the Yogyakarta principles of 2006.
+ve:
-> Easier for them to acquire property and other government services. Ex. Voter ID, passports etc.
-> In due course they’ll be allowed to intermarry, adopt, found a family. In 2014 the Madras HC upheld a cis-trans marriage.
Section-377 of the IPC:
-> It criminalises carnal intercourse agaisnt the order of nature.
-> In the NAS foundation case (2009), the Delhi HC read down 377 stating it violates A-14, A-21( Dignity and privacy ), A-19(1)(a) ( Right to express sexual orientation ).
-> In 2013, the SC overruled the Delhi HC, and in 2018 the Navtej Singh Johar case the apex court upheld the Delhi HC judgement. ( It was read down not struck down. But has been removed from the BNS now. We have the POCSO Act but there is no recognition for same sex rapes ).
Same Sex Marriage
- Is procreation the only goal of marriage. Why do people enter a marriage. What about people who have been unable to conceive, does it mean their marriage is a failure.
- Goes against societal, cultural, moral conception of marriage is not a valid argument. These are envolving with times and an individual’s FR is not subject to societal considerations.
- A balance must be struck so as to ensure absurd demands are not entertained. (Ex. Marrying your pet )
- The idea of marriage shouldn’t be denied on the basis of sexual orientation.
- Restriction of rights are reasonable only when they seek to prevent harm to society.
- Same sex couples can’t legally enjoy benefits available to married persons.
- Similar objections were also raised before other such groundbraking changes.
- Will bring Indian laws to global standards.
- A traswoman originally a male after going through sex changing procedures is allowed to marry a male. This violates A-14 as you are allowing effectively same sex marriage for people who have undergone certain medical procedures but not others.
Supriya Chakravarti case (2023):
1. No FR to marry. But you have FR to marry a person of one’s choice ( Shafin Jahan Case (2018)).
2. Special marriage Act (1954) cannot be interpreted in a gender neutral manner. Ideally such matters should be decided by the legislature.
3. It upheld the right of transgenders to marry.
4. Directed the GOI to setup a committee chaired by cabinet secretary to define the scope of entitlements of LGBT couples who are in a union/relationship.
Right to privacy
-> Now it covers various aspects including whatsapp, social media etc. but earlier the only instrument available for the state to violate your privacy was telephone tapping.
Telephone Tapping:
1. Sec-05 of the Indian Tlegraph Act (1885) authorises telephone tapping but no rules were framed regarding the same.
2. In the PUCL CASE (1997) the court held that unauthorised and unlawful tapping is a violation of A-19 and A-21 and thus read right to privacy in A-19 and A-21 ( 3 judge bench ).
PUCL CASE:
3. Tapping can be resorted to only in the interest of:
a) Sovereignty and Integrity of the state
b) Security of the state.
c) Maintain friendly relation with foreign states
d) Public order
e) To prevent incitement of an offence
4) Would require permission of respective home secretaries and both levles
5) Authorisation for tapping shall be subject to review by committees headed by chief secretary at the state level and union cabinet secretary at the union level.
KS Puttaswamy case:
1. Right to privacy was elevated to the status of FR.
2. ADM Jabalpur judgement (1975) was overruled.
3. Right to privacy is a part of Natural rights. (Exists even without the constitution )
4. FR cannot be compartmentalised. It’s tributaries traverse the entire constitution’s ecosystems of rights and entitlements. (Ex. Right to privacy exists everywhere - what you wear, what you eat, partner, sexual orientation. You can’t confine these within one article. You can find Right to privacy not only in part-3 but also outside part-3, ex. Who you choose to vote no one can compel you to disclose it.)
5. It has to be elevated to the status of FR to insulate it from arbitrary infringement and to secure for it the protection of A-13(2). Besides calling it a FR allows it to enter public consciousness.
6. Socio-economic rights being more important than civil-political rights arguement was rejected.
7. Concept of originalism was rejected.
8. Linked it to Human dignity and autonomy.
9. Broadened scope of privacy protection. It includes bodily autonomy, sexual orientation, reproductive rights, data protection, personal choices.
10. Upheld freedom of thought and expression. Privacy was linked to intellectual freedom, preventing excessive state control over individual thoughts, beliefs and communication.
-> In 2021, the SC appointed the Justice Ravindran Committee to investigate the pegasus case but nothing much came out of it.
Essence/Importance of Right to Privacy?
1. It’s fundamental to human dignity and autonomy. Privacy allows individuals to make personal choices without fear of judgement or interference.
2. Protection against state overreach and mass surveillance.
3. Prevention of misuse of personal data.
4. Ensures freedom of speech and expression.
5. Protection from social stigma and discrimination. Certain details if revealed lead to social exclusion, harrasment and discrimination.
6. At it’s deepest level it’s the right to be left alone. It’s a recognition of the fact that human being are not mere subjects of the state or society but autonomous entities with the right to self-determination.
Mob Lynching
-> Has no definition in the IPC, but does now in the BNS.
-> If there is a manisfestation of near complete breakdown of law and order in any society, it’s MOB LYNCHING.
Tehseen Poonawala judgement:
1. Nodal officer to be appointed of the rank of SP in every discrict who will organise a task force which will on the basis of the profile of the district create proper set of preventive measures for mob lynching related/vigilante crimes.
2. State governments should identify such discricts/tehseels/small towns where tendency for such incidents are high and ensure proper vigilance in these areas.
3. The nodal officer to ensure proper monthly review meeting regarding these measures
4. Every police officer must ensure dispersion of crowd showing tendencies for mob lynching.
5. Spread of explosive/viral messages to be restricted.
6. State/Central govt. must spread the message of dire consequences for mob lynching.
7. Immediate registration of FIR. ( But who will be the accused and normally the FIR is registered under unknown person ).
8. Investigation to be under time bound manner and to be monitored by the SP.
9. All cases to tried in special courts and the trials to be completed within 6 months. The state govt. must prepare proper scheme for compensation for the victim’s family. Failure of police officer to undertake necessary action must lead to departmental action against the same.
BNS:
-> Sec-103(2): When a group of 5 or more acting in concert commits murder on the grounds of race, caste, or community, each member shall be punished by death or lifer.
-> Sec-117: Says the same thing with respect to grevious hurt with punishment of 7 years.
Medical Termination of Pregnancy
Pro Life:
1. Even the smallest embryo has the potential for full human development and terminating an innocent, helpless life is an unjust deprivation of life and is morally indistinguishable from infanticide.
2. Violates the principle of do no harm. The medical profession exists to preserve life yet abortion is the deprivation of the same.
3. A person’s right to life should not depend on whether they are inside or outside the womb. A premature baby can survive at 24 weeks with medical intervention yet abortion is legal at that stage.
4. Studies indicate a higher risk of depression, regret, and even suicide among post-abortive women.
5. Abortion is used as a substitute for responsibility.
6. Abortion enables gender based and eugenic selections. When genetic testing advances, will we justify aborting babies with unwanted traits? It’s a dangerous slippery slope.
7. The “My body, My choice” argument fails because the foetus has it’s own organs, heartbeat etc. and is not merely an extension of the woman’s body. Should absolute bodily autonomy even when it infringes on another person’s right to life be allowed.
8. How can killing the baby inside the womb be considered legal and liberal whereas just 5 minutes later make it a homicide.
Pro Choice:
1. If a woman cannot consent to a medical procedure inside her own body, then she does not have true bodily autonomy. This violates right to privacy of the woman which includes her reproductive autonomy and also her right to liberty to decide what happens with her body.
2. Forcing a woman to give birth is a grave human rights violation. You don’t force donating organs for saving other lives then why should women be forced into labour.
3. Criminalising abortion lead to unsafe procedures. History has shown that banning abortion does not stop it - it only makes it unsafe.
4. Circumstances of conception should be taken into consideration. Victims of rape and incest should not be forced to carry the pregnancy as it would amount to state-sanctioned trauma.
5. A child should be wanted and not forced into existence. Unwanted children are more likely to face abuse, poverty, neglect. Forcing a woman to carry on with the pregnance could lead to 2 lives being negatively affected.
7. If abortion is criminalised citing the life of the foetus then what about miscarriages. Would they then be investigated or would women be prosecuted for manslaughter?
8. Raising a child is no easy task and has wider implications on the society at large as well as they are the future. Often men pressure women into pregnancy and don’t take responsibility later. Why should the woman be burdened with such a huge responsibility without any support. The state should not have the right to force a woman to carry on with the birth if it’s not willing to offer every support possible.
The abortion debate remain to be one of the most contentious and complex issues grappling various soceities today rooted in the fundamental question of how to balance the rights of woman over her body with the rights of the unborn child. Given the deeply divisive nature of this issue, the way forward can’t be one of absolutes but of a middle ground which respects both choice and life.
Several steps can be taken to reduce the moral and ethical tensions surrounding this topic:
1. Expanding access to contraceptives and sex education.
2. Stengthning social and economic support for mothers.
3. Viewing legal frameworks with compassion - While laws should not incetivise irresponsibility, they must also ensure that women are not forced into unsafe procedures or extreme suffering due to rigid legal restrictions.
4. Encouraging adoption as a realistic alternative - If carrying a pregnancy to term is made less burdensome, adoption could become a more widely accepted alternative.
Ultimately the goal shouldn’t be to either criminalise or legalise abortion outright but to create a world where fewer women feel the need for the same. A humane society must balance personal responsibility, autonomy, and the value of life - not through coercion, but through education, support and an emphasis on human dignity.
Undertrials
- 70% of inmaes are undertrials in Indian jails whereas the global average is 32%. Of these 70%, 65% belong to SC/ST/OBC.
Reasons:
1. Overworked police. (155/lakh; UN- 222/lakh ){ Cases take time to complete }
2. Jail not bail is the norm.
3. Motivated arrests, false cases, corruption contribute.
4. Poor standards of prosecution.
5. Socio-economic profile of the undertrials. ( Not able to afford bail )
6. Ineffective legal aid system.
7. Slow moving court process.
-> In 2005, Section-436A was added to CRPC now Section-479 of the BNSS:
a) An undertrial having spent half of the maximum sentence applicable to his alleged offence can be released on his own surety.
b) In the Bhim Singh case (2014), the SC called for effective implementation of this judgement.
Custodial Violence
-> 5 custodial death in India/day ( Police+Judicial )
-> In 2021-22, 175 persons died in police custody.
-> B/w 2017-2021, there were 286 magisterial enquiries ordered in cases of death in police custody. Only 114 cops were arrested, 79 chargesheeted, 0 convictions.
Factors responsible for custodial violence:
1. Poor recruitment and training.
2. Inadequate modern aids to crime investigation.
3. Shortage of manpower.
4. Media and societal pressures.
5. Career progression interests.
6. Inadequate supervision by senior officers.
7. Inadequate judicial initiative.
Constitutional protection:
-> A-20, A-21, A-22
-> Sec-53 of the BNSS : Examination of arrested person by a medical officer.
-> Section-196 : Compulsory magisterial enquiry in case of death in police custody.
-> Sec-25 of the IEA now Sec-23 of the BSA : Statements made in police custody not admissible in court of law. *** But in TADA confession made in front of SP level officer is admissable.
SC’s response:
-> DK Basu series of judgements (1996 1st)
-> Baljeet Singh case (2020) : Install CCTV in all police stations, control rooms, interrogation rooms including CBI, NIA, ED.
-> UN convention against torture (1987): India has signed it in 1997 but has not ratified it yet.
-> The need of the hour is a dedicated law for torture providing for:
1. Preventive measures.
2. Prosecution of those guilty of custodial violence.
3. Compensation for victims.
-> Law commission in 2017 did draft such a bill but nothing has happend on it.
Bail Vs Jail
Concept of Bail:
1. Presumption of innocence.
2. Promotes right to life and liberty.
3. Right to reputation.
Types of Bail:
1. Regular Bail.
2. Interim bail => Granted for a short period while the regular bail application is pending.
3. Anticipatory Bail => Granted to anyone who believes they may be arrested for a non-bailable offence. This is the discretion of the court, not your right.
4. Default Bail => If chargesheet not filed within the statutory specified period.
-> Apex court laid down in the Bal Chand Case (1997) the grounds for denial of bail:
1. Accused is likely to flee.
2. May tamper with evidence.
3. May threaten/intimidate the witness.
4. Likely to commit a crime.
House Arrest:
- Under Section - 187 of the BNSS, the court can place an accused ins uch custody as it thinks fit. It may be the individual’s or someone else’s home.
- Used for prisoners who are not deemed dangerous or those who have some health/medical needs.
-> NIA vs Navlekha (2024) => The money spent on providing security to a house arrested individual must be recovered fromt he accused itself.
Arnesh Kumar Judgement (2014):
1. State governments must instruct police officers not to arrest a person without satisfying the parameters under Sec-41 and Sec-41A of the CRPC now Sec-35 of the BNSS.
2. Under 41A, in all cases where maximum punishment is not more than 7 years, a notice of appearance has to be served on the accused. ( “Joined the investigation” )
3. Under 41 circumstances have been listed as to when an arrest can be made without warrant. A checklist of the same to be made available for all police officers containing specific subclauses of Sec-41 which the officer has to forward to the court clearly furnishing the reasons for the arrest. Failure to comply might lead to departmental action against the officer and the magistrate as well.
Ritu Chabadia Case (2023): Right of a person to default bail is not extinguised if an incomplete chargesheet is filed. But this judgement was recalled and referred to 3 judge bench.
Bail under special laws:
-> The provisions of the CRPC/BNSS don’t apply to these special laws.
PMLA:
-> Under Section-45 of the act two conditions need to be satisfied to grant bail.
a) Public prosecutor must be heard.
b) Court msut be satisfied that there are reasonable ground to believe that the accused is not guilty.
Twin tests of bail.
-> Nikesh Tarachand shah case (2017): SC struck down the twin tests of bail as unconstitutional and arbitrary.
-> Vijay Madanlal Choudhry case (2022): The previous judgement was overruled.
Issues under PMLA:
1. ED can detain a person without assigning reasons.
2. ED can arrest a person without providing under full grounds.
3. Copy of the ECIR may not be supplied to the accused.
4. Statements made in front of ED are admissable in the court of law.
5. Presumption of guilt.
6. ED can go for provisional attachment of property. One can appeal to the appalette tribunal but they are understaffed.
7. A very expansive definition of what constitutes money laundering:
a) Possession, Concealment, Acquisition use of proceeds of crime and projective tainted as untainted property.
8. Conviction rate has been very low = 0.5%,
9. In the recent past almost 85% of cases against politicians have been registered against opposition leaders.
10. The list of predicate offences contain both cognizable and non-cognizable, compoundable/non-compoundable offences.
-> KA Najeeb Case (2021): UAPA does not remove the ability of constitutional courts to grant bail on grounds of violation of FR to speedy trial.
-> Ideally we need to enact a law to compensate victims of wrongful and malafide detentions and prosecutions.
Satyendra Kumar Antil Case (2022):
1. Regular bail applications must be disposed off within 2 weeks
2. Anticipatory bail applications within 6 weeks.
-> In 2022 the SC observed that the government must enact a separate bail law on the lines of the Bail Act (1976) in the UK but most experts including the law commission have opposed it stating that sufficient protections exist as per several judgements of the apex court. What is required is consolidation of those norms and their strict enforcement.
-> Recently the SC has observed that inclination of the HC to stay bail creates a real and present danger to personal liberty. A bail order should be stayed in only rare and exceptional cases such as terror acts. Must not be granted merely on the request of the investigating agencies.
Internet Shutdowns In India
-> Under section 163 of the BNSS.
-> India has reported highest number of internet shutdowns globally for the sixth straight year. In 2023 there were 116 such instances.
Sabu Mathew George Case (2018):
=> The court held that right to be informed, Right to know and the feeling of enhanced protection and security due to expansive connectivity is guaranteed by the constitution.
Anuradha Baseen Case (2020):
=> Internet today is enabler of other rights thus prolonged shudowns violate A-19(1)(a), A-19(g), A-21, A-21(A), etc. It should be shutdown only in case of emergencies and no other measures are available.
=> Digital India and arbitrary shutdowns can’t go hand in hand.
Role of state in marriage?
- Marriage is not just a personal relationship, it’s a contract. The state involves to enforce this contract. Without state intervention, relationships would be unstable leading to “state of nature” where the strong exploit the weak.
- The state intervenes in marriage to ensure societal well being, to regulate inheritance, protect dependents, minimize disputes which could overburded the judicial system. When personal actions impact third parties (Children, society, state welfare ), regulation is necessary.
- Marriage is not just an individual matter, it’s the foundation of family and a cornerstone of societal structure, which in turn is the building block of society. The state has a vested interest in maintaining social cohesion. Family is the first community and must be structured and regulated for the stability of the larger polis. Relationships like marriage foster virtues such as responsibility, duty, committment, which uphold societal morality and cohesion.
- The state’s role in required to ensure fairness and prevent exploitation, especially for economially dependent spouses, children.
- Laws create predictability and enforceability which is essential for marriage related matters like inheritance, medical decisions, and divorce settlements.
- The state has a moral obligation to protect children who cannot advocate for themselves. Marriage laws help assign responsibility and ensure parental accountability. Plato - “Child rearing is a matter of public concern because children grow up to become future citizen who contribute to or destabilise society. Children are not only the private property of parents but rather the future members of the state, and thus their welfare must be protected.
