Friday, 18 February 2022

Equality before law

 Equality before law

“The state shall not deny to any person equality before the law.


Meaning of right to equality

This means that every person, who lives within territory of India, has the equal right before the law. the meaning of this all are equal in same line. No discrimination based on religion ,race, caste, sex,and place of birth. its mean that all will be treated as equality among equal .and there will be no discrimination based on lower or higher class.


Article-14 Of Constitution Of India

The state not deny to any person equality before the law or the equal protection of the laws within The territory of India. protection prohibition of discrimination on grounds of religion, race, Caste, sex, or place of birth. Prof. Dicey, explaining the concept of legal equality as it operated in England, said: “with us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without any legal justification as any other citizen.”


The phase “ equality to the law “ find a place in all written constitutions that guarantees fundamental rights. “All citizens irrespective of birth, religion, sex, or race are equal before law ; that is to say, there Shall not be any arbitrary discrimination between one citizen or class of citizens and another.” “All citizens shall, as human persons he held equal before law.” “All inhabitants of the republic are assured equality before the laws.”


Pantanjali Sastri, c.j., has expressed that the second expression is corollary of the first and it is difficult to imaging a situation in which the violation of laws will not be the violation of equality before laws thus, in substance the two expression mean one and same thing.


According to Dr. Jennings said that: “Equality before the law means that equality among equals the law should be equal for all. And should be equally administered, that like should treated alike. The right to sue and be sued, to prosecute and prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political influence.”


Equal Protection Of Law

“Equal protection of law” has been given in article 14 of our Indian constitution which has been taken from section 1 of the 14th amendment act of the constitution of the united state.


Meaning of equal protection of law: here, it means that each person within the territory of India will get equal Protection of laws.


In Stephen’s college v. university of Delhiunder The court held that the expression “Equal protection of the laws is now being read as a positive Obligation on the state to ensure equal protection of laws by bringing in necessary social and economic changes so that everyone may enjoy equal protection of the laws and nobody is denied such protection. If the state leaves the existing inequalities untouched laws d by its laws, it fails in its duty of providing equal protection of its laws to all persons. State will provide equal protection to all the people of India who are citizen of India and as well as non citizen of India.


Exceptions To Rule Of Law

In the case of Indra Sawhney the right to equality is also recognized as one of basic features of Indian constitution. Article 14 applies to all person and is not limited to citizens. A corporation, which is a juristic person, is also entailed to the benefit of this article. This concept implied equality for equals and aims at striking down hostile discrimination or oppression of inequality. In the case of Ramesh Prasad v. State of Bihar, AIR 1978 SC 327 It is to be noted that aim of both the concept, ‘ Equality before law’ and ‘ Equal protection of the law’ is the equal Justice.


Underlying priniciple:-

The Principle of equality is not the uniformity of treatment to all in all respects. it only means that all persons similarly circumstanced shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another.


Permination & Prohibition Of Article 14

Article 14 permits classification but prohibits class legislation the equal protection of law guaranteed by article 14 does not mean that all laws must be general in character. It does not mean that the same laws should apply to all persons. It does not mean that every law must have universal application for, all person are not, by nature, attainment or circumstances in the same position. The varying need of different classes of persons often require separate treatment. From the very nature of society there should be different places and the legislature controls the policy and enacts laws in the best interest of the safety and security of the state.

Test of reasonable classification 

Article 14 forbid class legislation, it does not forbid reasonable classification of person, object and transactions by the legislature for the purpose of achieving specific ends. But classification must not be "arbitrary, artificial or evasive". It must always rest upon some real and substantive distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature. 

Classification to be reasonable must fulfil the following two conditions - 

1- the classification must be founded on an intelligible differentia which distinguishes persons or things  that are grouped together from other left out of the group 

2-  the differentia must have a rational relation to the object sought to be achieved by the act. 

What is necessary is that there must be a nexus between the basis of classification and the object of the act which makes the classification. 


Exceptions to the equality before law - article 361 of the Constitution permits the following exception to this rule

1- The president or the governor of a state shall not be answerable to any court for the exercise and performance of the powers and duties of his office. 

2- No criminal proceedings whatsoever shall be instituted against the president or a governor in any court during his terms of office. 

3- No civil proceedings in which relief is claimed against the president or the governor of a state shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity. 


Equality before law

By- SHAMBHAVI

VIP-AUTHOR



ARTICLE 20

 ARTICLE-20

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.


Ex post facto

Ex Post Facto is a Latin word which means ‘after the fact’ or ‘out of the aftermath’ and also known as retroactive laws. 


Ex Post Facto laws are those laws which are enacted after an action is committed making such an act illegal although it was legal when committed. In the literal sense, it’s a law which criminalizes such conduct which was once legal.  For Example- if ‘A’ committed theft on 17th Nov which was not an offence on that particular date. On 20th Nov. legislature enacted a law under which theft was an offence. Then whatever punishment was laid down by legislature ‘A’ was held liable as per Ex Post Facto laws, therefore ‘A’ had to bear the same punishment as per new laws even without knowing the consequence of his act when he was committing it.


Ex post facto law in India

As per Indian laws, Art. 20(1) of the Indian Constitution says ex post facto laws are prohibited i.e. no retrospective effect of accused criminal acts.


The aim is to maintain law and order; to protect intentional or illegal detention.


Protection – 


  • Accused can use this right during conviction or sentence but not a trial. 

  • Protection is available to both citizens and foreigners for criminal cases.


Essential of ex post facto laws


There shall be a commission of offence and such offence was not legally recognised. 


The 1st part of Article 20(1), in a literal sense, means the violation of any such law for which a person is convicted must be in existence when the act is committed. It follows therefore that a person cannot be convicted for an act, which was not an offence under the law in force when that act was committed. 


Generally in Ex Post Facto laws, there is a retrospective effect, but as per Indian constitution, there is prohibition regarding retrospective operation. i.e. no punishment under retrospective operation.


The 2nd part of Article 20(1), in a literal sense, means punishment which was in force when the offence was committed will be applicable and there will be no retrospective operation. E.g. – A commit theft on 27th Aug 2020 imprisoned for 2 months. Later on 1st Sept. 2020 amendment was made which says the average punishment of theft is 3month in addition to monetary compensation that should be given to the victim. Now the judiciary can’t punish offenders of 27th Aug availing the extended punishment of 1st Sept because this art doesn’t hold retrospective operation.


Barai Rao Shiv Bahadur Singh & Another v. The State Of Vindhya Pradesh

It was provided by the honorable Supreme Court of India in the above mentioned case that if certain provision of any act passed by the legislature is reducing the punishment of an offense committed before passing of that act. Then in such cases there is no reason why the accused should not have the benefit of such reduced punishment. 




Double jeopardy

The doctrine of Double jeopardy has been conceptualized in the Constitution of India under Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once. It has been enshrined as a part of the Fundamental Right by the fathers of our Constitution under Part III.  When a person has been convicted for an offence by a competent court, the conviction serves a bar to any further criminal proceedings against him for the same offence. No one ought to be punished twice for one and the similar offence.

Ingredients applicable for double Jeopardy Rule –

A) The person must be accused of an offense. The word ‘offense’ as defined in general clauses Act means ‘any act or omission made punishable by law for the time being in force.

B) The preceding or prosecution must have taken place before a Court or Judicial Tribunal

C) The person must have been prosecuted and punished in the previous proceeding.

D) The offense must be the same as of before compulsorily for which he was prosecuted and punished

Kalawati v State of Himachal Pradesh[i]

In this case a person accused of committing murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2) would not applicable as there was no punishment for the offence at the earlier prosecution.

Monica Bedi v State of Andhra Pradesh[ii]

In this case the Apex Court ruled that a passport enrolled on fictitious name amounted to a double jeopardy as a Portuguese court too had earlier convicted her for owning forged passport

State of Haryana vs. Bhagwant Singh 

In this case, Court held that the prohibition under Article 20 is not applicable to departmental proceedings.

Bhagwant Swarup vs. State of Maharashtra 

In this case, Court held that the second prosecution, as well as punishment, should be regarding the same offense for which the person has been prosecuted and punished before and Article 20(2) is applicable. The same offence here means that the ingredients of the offense are same.  It does not apply to different offences committed by the same act of that person.

 

Self incrimination has been defined as acts or declarations either as testimony at trial or prior to trial by which one implicates himself being involved in a crime. In India under Article 20(3), the provisions of doctrine of self- incrimination  has been provided .In many state constitutions and laws, it prohibits the government from requiring any individual to be a witness against himself involuntarily or to furnish evidence against himself. The right to silence which includes a privilege against self-incrimination is closely related to the presumption of innocence. If it is the role of the prosecution to prove that an offence has been committed then flowing from that it should not be the responsibility of the accused person to facilitate the prosecution by being forced to speak.

The right to silence has various facets which includes –

  • that the burden is on the State or the prosecution to prove that the accused is guilty and is involved in crime.

  • till an accused is proved to be guilty, he is presumed to be innocent

  • that the right of the accused against self- incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself.

 

Balasaheb vs. State of Maharashtra

It was held that a witness in a police case, who is also an accused in the complaint case for the same incident, cannot claim absolute immunity from testifying in the case but he may refuse to answer those questions which tends to incriminate him.

 

ARTICLE-20

By-SHAMBHAVI

VIP-AUTHOR


Cyber Crime

 Cyber Crime 

 Cyber crime is also called as a computer crime, the use of computer related to day today life is changing for hackers they use computer for fraud, child pornography, and trafficking etc. Nowadays the Cyber Crime increase in daily life because the cyber crime is directly related and dependent on Technology, the more technology is increasing the more cases of cyber crime is increases. We see the pandemic which resulted in a lockdown in country the new form of work is originated it is there in our society but it is more used by nowadays people s a work from home. The pandemic resulted more uses of technology is related work. In my surrounding every person has their personal phone even children to, and this resulted in increases in cyber crime. I will share my own experience that my brother is faced the cyber crime from her bank account more than ten thousand rupees were stole by the cyber criminals, we do the report in police station but nothing happened. 

The first recorded cyber crime took place in the year 1820, even that time there a little technology but the crime happened then the government or an authorities feel to make laws for the newly invented law and from that time the cyber crime is now grown up very much in India we have Information Technology Act 2000 which mention some act and section provide the remedies and prohibition to such Activities. 

Section 65 of Information Technology Act define that Tampering with computer source document, it mentioned that a person who intentionally conceals destroy or alter any computer device source it punished by the three year imprisonment and fine of two lack INR. 

Section 66 of Information Technology Act mentioned that using password of another person, if a person fraudulently uses the password digital signature or other unique identification or documents like Aadhar Card etc, of another person he/she will be punished up to three year of imprisonment and fine of one lack INR. 

Section 67 publishing child porn or predating children online, it mentioned that if a person capture, publishes or transmits images of a child in sexually explicit act or induce anyone under the age of 18 into a sexual act like making porn of child under the age of 18 and post on different websites is a serious crime, and it will be resulted into the person can face imprisonment of seven year and fine up to lacks INR.      

Section 69 talks about the government power to block websites, in this section mentioned that if the government feels it necessary in the interest of sovereignty and integrity of India, it can interrupt monitor or decrypt any information generated transmitted received or stored in any computer resources. The power is subjected to compliance of procedure. Under section 69A the central government can also block any information from public access. 

Section 43 A of Information Technology Act mentioned that the Data protection at corporate level, if a body corporate is negligent in implementing reasonable security practice which cause wrongful loss or gain to any person such body corporate shall be liable to pay damages to the affection person.   


Discrimination in India

 Discrimination in India 

Discrimination is an act which is done by a person to another person to treat different on the basis of their race, age, gender, caste, or disability etc. The discrimination in India is performed from ancient time and has longer history in India. From the ancient times there was certain discrimination is based on the cast in India like in constitution of India there is Article 17 which is prohibited the untouchability, and some other law like the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 

The most major discrimination was performed from the medieval India is Untouchability, a particular group based on their work and caste they have to suffer discrimination among the society. There were a survey conducted by the India today which stated that about 27 percent of the Indian household still practice untouchability since Brahmin come on the top the caste chart, 52 percent of them practice untouchability. The most recent example of the discrimination which is indirectly related to it was a 5.43 percent of Indian marriage are inter cast it is just 5 percent which show the inter cast marriage are not allowed in India and rare also, family were not accept the boy/girl if he/she is a belonging to a particular cast. The personality who known for the fighting for the rights of the untouchables is Dr. B.R. Ambedkar they stated that ours is a battle not for wealth or for power. It is a battle for freedom. It is a battle for reclamation of Human personality. 

Article 17 of the Indian constitution prohibited the practice of untouchability in India, Article 35 read with Article 17 confer on the Parliament power to make laws prescribing punishment for practice untouchability. 

Article 14, 15, 16, 17 and 18 of constitution of India is related to discrimination, some of them are Equal remuneration ct, 1976 guarantees equal pay for equal work to men and women. Indian Penal Code, 1860 criminalizes the use of languages that promotes discrimination or violation against people on the basis of race, caste, sex, and place of birth, religion, gender identity, sexual orientation or any other category.

Like mental health care Act 2017 prohibits the denial or refusal to access mental healthcare facilities or services for people on the basis of race, caste, place of birth, sex, gender identity, sexual orientation, disability of any person. 

Schedule Caste and Schedule Tribe Act 1989 specially deal with all kind of discrimination and hate crime on basis of caste, Transgender Person Act 2019 specifically deal with all kind of discrimination and hate crime faced by people on the basis of their gender identity and gender expression. 

Rights of persons with Disabilities Act, 2016 is deal and prohibits discrimination and violence against people with physical and mental disability, Hindu succession Act 1956 specifically abolished the limited owner status of woman who owned property amended in 2004 to give daughter equal inheritance rights with sons.   

         

 


The Directive Principle of State Policy

 The Directive Principle of State Policy

The Directive Principle of State Policy or DPSP as enumerated in Part IV of the Constitution as discussed formerly in this article are the constitutional directives or recommendations to the State as far as the cases of Legislative, administrative and executive matters to keep in mind the ideals therein mentioned while formulating and enacting laws. The significance of these directives becomes evident from the fact that these Directive Principles at numerous instances help the court of law though having non-justiciable in nature, to determine the constitutional validity of a law. These Directives are often classified into three broad categories:

  • Socialistic Principles – For e.g. Article 38, to promote the welfare of the people by securing a social order permeated by justice – social, economic and political and thereby to minimize any types of inequalities be it income, status and opportunities. 

  • Gandhian Principles – These principles characterize the programme for reconstruction as enunciated by the father of the Nation – Mahatma Gandhi during the national movement and struggle. For e.g. – Article 40 to organize village panchayats and endow them with necessary powers and authority to enable them function as units of self – government.

  • Liberal–Intellectual Principles– These DPSPs entail in themselves some characteristics of the ideology of liberalism. For e.g. – Article 50 which further imposes an obligation upon the state to separate judiciary from the executive in the public services of the State.

The classification of the Directive Principles as above stated in this article is not expressly present or made by the Constitution but however on the basis of its content the same has been classified into the three broad categories.

Article 36

Defines State as same as Article 12 unless the context otherwise defines.

Article 37

Application of the Principles contained in this part.

Article 38

It authorizes the state to secure a social order for the promotion of the welfare of people.

Article 39

Certain principles of policies to be followed by the state.

Article 39A

Equal justice and free legal aid.

Article 40

Organization of village panchayats.

Article 41

Right to work, to education and to public assistance in certain cases.

Article 42

Provision for just and humane conditions of work and maternity leaves.

Article 43

Living wage etc. for workers.

Article 43-A

Participation of workers in management of industries.

Article 43-B

Promotion of cooperative societies.

Article 44

Uniform civil code for the citizens.

Article 45

Provision for early childhood care and education to children below the age of six years.

Article 46

Promotion of education and economic interests of SC, ST, and other weaker sections.

Article 47

Duty of the state to raise the level of nutrition and the standard of living and to improve public health.

Article 48

Organization of agriculture and animal husbandry.

Article 48-A

Protection and improvement of environment and safeguarding of forests and wildlife.

Article 49

Protection of monuments and places and objects of national importance.

Article 50

Separation of judiciary from the executive.

Article 51

Promotion of international peace and security.

Importance of DPSPs for an Indian citizen

Regardless of the non-justiciable nature of DPSPs, a citizen should be aware of them. As the Article 37 itself describes these principles as fundamental in the governance of the country. The objective of the DPSPs is to better the social and economic conditions of society so people can live a good life. Knowledge of DPSPs helps a citizen to keep a check on the government.

A citizen can use DPSPs as a measure of the performance of the government and can identify the scope where it lacks. A person should know these provisions because ultimately these principles act as a yardstick to judge the law that governs them. Moreover, it also constrains the power of the state to make a draconian law. Through various judicial pronouncements, it is settled principle now that balancing DPSPs and Fundamental rights is as important as maintaining the sanctity of Fundamental Rights. Non following a directive principle would directly or indirectly affect the Fundamental Right which is considered as one of the most essential parts of the Constitution.


The Directive Principle of State Policy

By- SHAMBHAVI

VIP-AUTHOR


19(2) of Indian Constitution

 19(2) of Indian Constitution 

 

The Grounds on Which This Freedom Could Be Restricted

Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under following heads:
I. security of the State,
II. friendly relations with foreign States
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.

Security of the State:

Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. The term security of state has to be distinguished from public order. For security of state refers to serious and aggravated forms of public disorder, example rebellion, waging war against the state [entire state or part of the state], insurrection etc People’s Union for Civil Liberties (PUCL) v. Union of India.

In the case of People’s Union for Civil Liberty versus Union of India AIR 1997 SC 568 a public interest litigation (PIL) was filed under Article 32of the Indian Constitution by PUCL, against the frequent cases of telephone tapping. The validity of Section 5(2)of The Indian Telegraph Act, 1885 was challenged. It was observed that “occurrence of public emergency” and “in the interest of public safety” is the sine qua non for the application of the provisions of Section 5(2). If any of these two conditions are not present, the government has no right to exercise its power under the said section. Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2).

Friendly relations with foreign States:

This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it hampers the friendly relations of India with other State or States.

Public order:

This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court's decision in Romesh Thapar’s, case (AIR 1950 SC 124). As per hon’ble Supreme court, public order is different from law and order and security of state [Kishori Mohan v. State of West Bengal]. The expression 'public order' connotes the sense of public peace, safety and tranquillity. Anything that disturbs public peace disturbs public order [Om Prakash v. Emperor, AIR 1948 Nag, 199].But mere criticism of the government does not necessarily disturb public order.A law, which punishes the deliberate utterances hurting the religious feelings of any class has been held to be valid and reasonable restriction aimed to maintaining the public order.

 

Decency and morality section 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression on the grounds of decency and morality, it prohibits the sale or distribution or exhibition of obscene words. The standard of morality changes with changing times. Supreme Court in RanjitD. Udeshi v. State of Maharashtra (AIR 1965 SC 881)upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the bookLady Chatterley's Lover.

Contempt of court:

The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act.

In E.M.S. Namboodripad v. T.N. Nambiar(1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah(1984) 2 SCC 343; AIR 1984 SC 615),contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.

Defamation:

The clause (2) of Article 19 prevents any person from making any statement that defames the reputation of another. Defamation is a crime in India inserted into Section 499 and 500 of the I.P.C. Right to free speech is not absolute. It does not mean freedom to hurt another’s reputation which is protected under Article 21 of the constitution. Although truth is considered a defence against defamation, but the defence would help only if the statement was made ‘for the public good.’ And that is a question of fact to be assessed by the judiciary.

Incitement to an offense: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offense.

Sovereignty and integrity of India: This ground was added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.

To conclude, right to freedom of speech and expression, is an important fundamental right, scope of which, has been widened to include freedom of press, right to information including commercial information, right to silence and right to criticize. The said right is however, subjective to reasonable restrictions under Article 19(2).


19(2) of Indian Constitution 

By- SHAMBHAVI

VIP-AUTHOR


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