Nowadays I have seen my cows tease the buffaloes. The reason is simple. Cows are lighter in colour and can bear the brunt of this heat. Buffaloes are dark and have to suffer. But my buffaloes spend their time lazing around in ponds and have a good time.

Now, when I was taking this road to some place I saw a poor man, with no chappal/ slipper/ footwear walking on the road. It was so hot that his feet might have been roasted. I felt sad. I felt bad. I thought something must be done.

The expression 'life' assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living...The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which makes life worth living. (See Consumer education and research center v. Union of India, AIR1995SC922 para 24). This is for all those who say that my blog doesn't deal with law. Ha!

Now, being without a footwear on a hot Indian road denotes animal existence. Should our engineer brothers come with some material which makes road 'WHITE'. This will reduce some of the pains of the poor in India who cannot afford a footwear. Or maybe there should be an all India footwear program to provide footwear at subsidised rates to the poor.

Please post in your suggestions.

PS- Whiter roads will also be good for the rich. In summers the air pressure in tyres gets uneven and disturbed. This might sometimes lead to road accidents. White roads will also solve this problem. What say?

I’m writing this in a hurry, so apologies in advance if its a bit abrupt. You see, I’m working on a “deal”.

For the (mercifully) uninitiated, a “deal” is a mythical creature with no readily identifiable form or substance. It ebbs and flows- it can lie on the backburner for years enjoying its benign existence and suddenly morph into your worst nightmare. The only thing that is constant about is a deal is the people involved- lawyers, accountants and the odd unculled banker.

For those of you who have been wondering how things work at Colby, Hewitt and Richards LLP, this is an attempt to present the rational and unemotional junior lawyer’s perspective.

The firm (like all soul-sucking institutions) is built upon the following hierarchy of power.

In descending order of importance-
 

1. Partners

Names: William Colby, Chris Hewitt, Jack Richards.
Personality type: Alpha male.

Description: The pit bosses. The rainmakers. The breadwinners.
Call them what you want, they are the ones bringing in the moolah. They also take home most of it. They make sure everyone knows exactly who the boss is and their Bentleys are kept shiny. They solve ego clashes within the partnership by arranging their names alphabetically  on the front door. They have the luxury of coming in late and going home early.

2. Senior Associates 
Names: Katherine Moody, Johannes Sutcliffe, Charles Ramsay, Joy Rogers and Matthew Thomson.

Personality type: Connector.

Description: The rock. The thinker. The ox.

They work the hardest and bill the most. Their job is to make sure each associate pulls their weight and team members don’t rip each others’ throats out. With work, mortgage payments, wives and PTA meetings, Senior Associates seldom realise that youth has passed them by and that the Pet Shop Boys are no longer in vogue.  This usually results in them grossly overestimating their capacity for alcohol and being carried home on a regular basis. At least this way, once in a while they get to see what their kids look like. The upshot is that most Senior Associates hang somewhere between merely disliking their jobs and committing suicide. Fortunately, the hope of colossal riches at the end of the partnership rainbow helps keep them going through their second and third nervous breakdowns.

3. Associates 
Names: David Doyle, Jane Jameson, James Doherty, Alex Gerhard,  Rebecca Knightley, Kirsten Adams, Yusuf Siddiqui, Robert Dylan, Eric van Kook, Nandii Reywal.

Personality type: Maverick

Description: The rebel. The follower. The life of the office party.

When he qualifies, the sole aim of the amicable, content associate is to somehow be done with work around approximately 5.29 p.m. on a daily basis. Deals that kick off at 5.30 p.m. are therefore abhorred by the associate at a deeper, philosophical level. Over time, he discovers that deals develop the annoying habit of being spread across six time-zones, which leave his body clock bewildered. Living in a time warp slowly destroys his love-life too- most women find it hard to compete for a man’s attention with a relentlessly beeping Blackberry. The associate realises it is a bit trying having to constantly pretend to know what’s going on, lest he be mistaken for the lowly trainee (discussed below). Billable hours then rear their ugly heads and the associate works diligently to achieve and exceed these targets for the right to brag about his (skimpy) bonus. At about this time, the great divide occurs and one of two things happens. Either:
1) he starts blogging about his job, is found out and fired. In time, the rebel goes on to win a Pulitzer for this literary masterpiece; or
2) his spirit breaks and he accepts his miserable fate.  The conformist goes through the motions and compensates for not having a life by drinking large quantities of alcohol with his immediate superiors. Before long, he becomes the Senior Associate’s drinking buddy and after-party drop home (see above), thereby earning his confidence. In due time, he is promoted to the next level of wretchedness.

4. Trainees

Names: Can’t be bothered. They’re probably not going to be around tomorrow anyway. 
Personality type: Used car salesman.

Description: Overpaid. Underworked. Minion.

Trainees live the good life. A random sample of their work would include, without fail, the intellectually challenging tasks of proofreading documents, carrying heavy boxes, circulating checklists, collecting signed documents and sending couriers. As these bottom-feeders are not expected to know a thing, the secret to being a successful trainee is threefold (in order of importance):
1) resisting the urge to make one of the Partners his/her BFF after a few drinks;
2) mastering the art of looking incredibly busy and bustling around the office, doing absolutely nothing of consequence; and
3) convincing one and all of his/her undying love for work.

When qualification time comes around, such talent is duly recognized and the best are rewarded with jobs at Colby, Hewitt and Richards LLP, replacing the rebellious bloggers. The rest are send packing with recommendations for jobs as baggage handlers at Heathrow.

(11:53 p.m.: Desk phone rings- “Charles Ramsay” flashes on screen. He is not too happy with the drafting of Clause 6.3(a) of the document. I change the word “notice” to “notification” and email it to him again. I then proceed to stare out of my window. This is going to be a long night.)

*************End of post************** 

The human right to food has its contemporary origin within the U.N. Universal Human Rights framework. The main reference point is located within the Universal Declaration Of Human Rights (UDHR) (U.N. 1948), Article 25, which states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food.” It provided a reference point for human rights legislation that followed but is not itself a binding international legal instrument

According to the Special Report- Right To Food Is A Basic Human Right

This is a special Hunger Notes report on the right to food. Why shouldn't people have enough food, earned in the usual case by working,  to keep themselves alive and alert?  A very reasonable goal, but one which is far from being met, though there has been significant progress in the past 10 years.  This report examines both the progress and the frustrations. 

Under-nutrition,haunts the lives of millions of Indian .The magnitude and severity of the nutritional crisis facing the country.Over a million deaths can be attributed to under-nutrition and hunger.Most of the times, child deaths and suffering because of poor nutrition go unnoticed.India reports among the highest levels of child under-nutrition has been rightly termed by Prime Minister Manmohan Singh as a “national shame”.According to a recent United Nations Children’s Fund (UNICEF) estimate, India accounts for 31 per cent of the developing world’s children who are stunted and 42 per cent of those who are underweight.There are various reasons why India should do something about food security specially child under-nutrition. Being well-nourished is the right of every child, and the state has the obligation to ensure proper nutrition for all children. Undernourished children have significantly lower chances of survival than children who are well-nourished. They are much more prone to serious infections and to die from common childhood illnesses such as diarrhoea, measles, malaria, pneumonia, and HIV and AIDS. The risk of dying increases with the severity of the under-nutrition. If recent indicators are anything to go by – the failure to keep food prices down, the proposed national food security Act, the failure to ensure even minimum wages to construction workers at projects for the upcoming Commonwealth Games in New Delhi, to recount a few – it seems the country has given up even the pretence of caring about its children or their crippling, unbudging state of malnutrition.

The state of women’s health and food security is similarly symbolised by an equally recalcitrant and even more widespread nutritional anaemia. This is a failure in itself as far as women’s rights are concerned, but it is also the root cause of low birthweight, subsequent malnutrition and poor child survival. 

How serious is the United Progressive Alliance government about enacting food security legislation that gives every citizen in the country the right to adequate food? On the face of it, the government appears to be extremely serious. After all, ensuring the right to food was a major election promise of the Congress party that leads the UPA; it has been frequently mentioned in various official pronouncements of this government; and it was mentioned prominently in the latest Budget speech of the Finance Minister.

Most recently, a draft Food Security Bill that has purportedly been prepared for consideration by the Empowered Group of Ministers has been doing the rounds unofficially. While the authenticity of this document is not clear, it is nevertheless worth examining, just in case it provides any pointers to the current thinking of the government on this crucial matter.Thus, the “Preamble” declares that this is an Act “to provide statutory framework for assured food security to all citizens of India to promote their active and healthy life thereby enabling them to contribute productively to nation building”. This sweeping statement is clearly not legally tenable, since none of the important terms and concepts are defined, such as “assured food security”, nor is it clarified how it will be determined that citizens “contribute productively to nation building”!

The proposed Food Security Bill adopts Three pronged strategy that constitutes -

(i)  a universal public distribution system for all,

(ii) low cost food grains to the needy

(iii) convergence in the delivery of nutrition safety net programmes. 

Based on article,21 of the Constitution, the  Supreme Court has regarded the right to food as a fundamental  and basic human requirements for the right of life.In the spirit of the numerous measures and programmes, the number of persons who are undernourished has increased from 210 million in 1990- 92 to 252 million in 2004-05. The Food Security Bill, when enacted, will become the most important step taken after 1947.

In other words, the population as a whole is supposed to be given food security as a legal entitlement (although how this is to be done is not clear) but public provision of foodgrains is only for a targeted section defined as poor. The rest of the document makes it clear that the purpose is really to abandon a comprehensive and universal system of public food distribution and then replace it with a targeted system. In that system, only those defined as poor by State governments on the basis of total numbers to be determined by the Centre, will have access to publicly distributed food grains, presumably at a subsidised rate.  

The entire focus of the operational part of the proposed Act is on the targeted public distribution system [TPDS], which will provide foodgrains to households identified as living below the poverty line (BPL). The total number of such households is to be determined by the Central Ministry of Food and Public Distribution on the basis of the latest available poverty estimates notified by the Planning Commission, with such estimates remaining valid for a period of five years.

CONCLUSION

The most significant direct intervention designed by India to tackle under-nutrition is the Integrated Child Development Services (ICDS) programme. Most reviews and assessments have established that the more than 30-year-old programme has not succeeded in delivering the desired result of preventing and eliminating under-nutrition. This is what prompted the Prime Minister in his Independence Day address in 2008 to remark: “The problem of malnutrition is a curse that we must remove.

I would like to edit this once more to add some thing new, but what I can say right now is that the question on food security and the failure of the pragammes and measures lies in the same question only.    

The following is a hilarious story of a legal proceeding initiated against one of the greatest ruling super heroes of our times on a question as ancient as the one which arose in the second century with Clement of Alexandria ( whether Apostle Peter and Cephas of Antioch were the same person?)

The Exposition

There is this Lady, who is a resident of Hipparga (Kopdeo), tq. Ahmedpur, dist. Latur. and a mother of five daughters by name Taherabi, Wahedbi, Laila, Madina and Hussainbi and two sons by name Dulekhan and Alasab. All daughters of the lady and eldest son Dulekhan are married.

However, the protagonist of the present story is her youngest son Alasab, who was born to her on 12-6-1965 at Hipparga (Kopdeo). Alasab was admitted in school at Hipparga (Kopdeo), but Alasab was not really keen on studies. He dropped out of school in the year 1983. Alasab was in the third standard when he left school.

Since the Lady had no source of income she moved to Bombay alongwith her children in search of livelihood and managed to get work at a construction site at Vashi. Since Asalab had no school to attend, he used to wander here and there and frequented the front stalls to watch movies. One fine day in the year 1984, Alasab disappeared without informing her mother and ostensibly went alongwith a Circus which had performed at Bandra at that time. Despite searching, Alasab could not be traced. Ultimately, the Lady returned to Hipparga (Kopdeo).

The Rising Action

Mohammed, son of Wadhebi (one of the married daughters of the Lady mentioned above) watched the movie "Raju Ban Gaya Gentleman" at a theatre in Ahmedpur and immediately identified Alasab. He rushed to his mother Wahedbi and informed her that he has recognized his maternal uncle Alasab. Wahedbi also went to watch the movie "Raju Ban Gaya Gentleman" to ascertain the truth behind her son’s claims and she too immediately identified Alasab. Wahedbi and her son Mohammed then went to Hipparga (Kopdeo) and informed the Lady that Alasab has been traced.They told the Lady that Alasab has changed his name to Shah Rukh Khan and has become a film star. Thereafter all of them arrived at King Khan’s the then residence in Bombay and requested SRK to acknowledge the Lady and maintain her. They had also contacted well known film stars like Dilip Kumar, Big B and Rekha and tried to collect information from them with regard to antecedents of SRK(then ‘Raju’ who according to the Lady, was pretending to be  the ‘Gentleman’ ).

The Climax

The Lady startled SRK by initiating action for maintenance, under section 125 of the Code of Criminal Procedure (Cr. P.C) in the Court of Judicial Magistrate, First Class, Ahmedpur, dist. Latur. The Lady proclaimed herself as mother of SRK and alleged in her application for maintenance that even though SRK recognized her and acknowledged her as his mother, he refused to maintain her. She claimed monthly allowance at the rate of Rs. 500/- (Rupees five hundred only) for her maintenance.

Following Cr. P.C. by the book, the Magistrate issued summons to SRK and called him to appear in the Court. SRK must have received a serious jolt when he received the summons, but however, he sought legal advice and quickly filed a petition under section 482 of the Cr.P.C. for quashing the proceedings initiated by the Lady.

SRK presented his case, proof of his parentage, death certificates of his parents,  certificates of schooling, awards won and letters and certificates establishing his schooling and college and more importantly, several proofs of his birth, passport and other such legally accepted documents to basically establish the fact that he was Shah Rukh Khan, a permanent resident of Delhi(at that relevant point of time) and son of Late Mir Taj Mohammed Late Fatima Latif. SRK went on to state that after completion of his post graduation in Arts, he shifted to Bombay to try his luck in Bollywood and later struck gold. He obviously denied that the Lady is his mother and that the application filed by her was a false, frivolous and vexatious proceeding for maintenance against him to extract money and accordingly sought quashing of the proceedings as against him.

The classic evidence

The Lady produced the Birth Certificate and school leaving certificate of Alasab. The certificate, issued by She Deputy Sarpanch of village Hipparga (Kopdeo) and copy of the photograph of Alasab, with his brother, an important piece of evidence. Besides these documentary evidence, she filed her own affidavit and produced affidavits of her daughter, her son-in-law and affidavits of other witnesses.

Most importantly, the classic piece of evidence.

She submitted a certificate issued by the Deputy Sarpanch of village Hipparga (Kopdeo) certifying that film star Shah Rukh Khan was a permanent resident of village Hipparga (Kopdeo). The Deputy Sarpanch further certified that SRK had left village about few years back and was residing with her mother in Bombay and thereafter, disappeared and later acquired tremendous publicity and fame as film star, and then conveniently declined to identify his mother, sisters and brother. The certificate also stated that whatever information was given therein was correct.

The Falling Action

This Court directed to hold the enquiry as to how and on what basis the Deputy Sarpanch of village Hipparga (Kopdeo) has issued such kind of certificate. The enquiry papers were made available for the Dy. Sarpanch’s perusal. The Deputy Sarpanch, in one breath denied to have issued such kind of certificate and in the next breath, he stated that someone had already brought the certificate and he had simply attested his signature. The High Court proposed to issue a Notice to the Deputy Sarpanch, as to why criminal prosecution should not be launched against him. The findings which led to the quashing of the proceedings:

·        The Lady was a self-proclaimed mother.

·        The mother contemplated under section 125(1)(d) of the Cr.P.C. does not include self-proclaimed mother.

·        The Lady was ill advised.

·        She had fallen prey to the busy brains of her relatives.

·        An application under section 125 of Cr.P.C. is not a complaint.

·        SRK could not have been equated with an accused.(significantly an “accused” is not defined in the Cr.P.C )

·        Ultimately, the order that would be passed in a 125 Cr.P.C. proceeding is not an order of conviction.

·        The Lady is a stranger to SRK.

The Dénouement

Interestingly, the Court also observed that “there is no specific provision in the Code of Criminal Procedure to combat such kind of unforseen circumstance. Nothing is provided in the Code of Criminal Procedure to meet or tackle such kind of false, frivolous and vexatious litigation. It cannot be, therefore, said that the present petitioner is required to prove the correctness of his claim in the trial Court, on the basis of the evidence and seek justice in that regard. In order to combat such false and frivolous litigation, it is required to truncate the very proceeding at the threshold to serve the ends of justice. The ends of justice are in jeopardy. The Court cannot shut the eyes, fold the hands and remain silent onlooker. Inherent powers, no doubt are required to be used sparingly, carefully and cautiously, but if there is an instance of abuse of process of law, with an intention to harass a citizen, it is legitimate on the part of this Court to snip the very proceeding at its commencement to serve the ends of justice.”

On the insinuation that the Court was tilting towards the filmstar, the Court observed  that “sympathy  was not being not shown to a film star…inherent powers were being invoked to scrap the false, frivolous and vexatious proceeding not because the petitioner is a film star but he is a star victim of false, frivolous and vexatious proceeding.

Compulsory Voting

 On the 16th of December 2009. Gujarat government announced that it will pass an Act on the Gujarat Local Authorities Laws (Amendment) Bill, 2009.The amendment will voting compulsory for all citizens of Gujarat to vote to elections to a self governing body. This will make the right to vote, a duty. It will apply to all qualified voters Municipal Corporations, Municipalities, district, talukas and village panchayats. When it is done. Gujarat will be the first state in India to do such a thing. It will be implemented for the first time in October 2010 during the Municipal elections in Ahmedabad.

 I am not taking sides here. I just want to point out the pros and cons of the action.

 Voting in India is not compulsory. We usually have 50-60% turnout. We also see some candidates winning and being elected even though they have just received only 10-20% votes of the total registered voters. I mean how can someone be chosen to rule over the constituency even when he/she has received only 1/5 of the total votes. Most people don’t vote because of two main reasons. First, they think that their votes don’t count for much. A single vote won’t make a difference. Second, they think that none of the contestants are good enough. I read it in a book named Freakonomics that a very very low number of elections are won by a margin of one vote. Does that mean that your vote doesn’t matter ? No if everyone thinks like that then it will be very tough to choose good candidates. Why should people be forced. They know that voting for a good candidate is in turn going to benefit them only. They have to understand that. If we consider them as adults and give them the right to vote then we should treat them like adults and let them make the decision on whether to vote or not. To make my point more clear I would like to quote a analogy.

The Lifeboat Analogy.

 You are one of twenty two people who are stranded on a life boat after the pleasure cruiser sinks.

 Yes there is enough room and supplies for all of you for the immediate future so no decision has to be made as to who has to be thrown overboard. However there is one problem: the navigator has gone down with the ship and no one actually knows which direction to row to ultimately reach the shipping lanes. Even though no one knows for sure, eleven members of those on board have formulated ideas. Some think they can operate the sextant which has been saved, some believe they can tell which way to go by the currents, some by the sun, and some by the prevailing winds. The problem is that there is not general consensus from all there theories, and existing provisions will only allow for one attempt. It is ultimately decided that a vote has to be taken to decide whose theory will be accepted to decide the course to follow. Because the decision may well result in the life or death of everyone on board it is decided that everyone will have the right to vote. Even though you yourself have come to no theory, you decide to vote with one person who, to you, gives the general impression of being slightly more astute and knowledgeable that the other amateurs navigators. This leaves the remaining ten occupants. Not only do they have no idea which is the best direction for rescue, they also share equal faith in all of those who have suggested theories. Therefore because they fear their vote may lead to the wrong decision, they have decided to abstain from voting.

 Will you allow the ten to abstain from voting or will you insist that, because lives are at risk, they must partake in the vote?

 On the other hand, let us consider the scenario where voting is compulsory.

 So its election day and you HAVE to vote. Sounds weird. We are so used to voting being a right that we cannot grasp the thought of it being a duty. The first question that comes to your mind is,” Why would someone want to do that ?” . The reasons given are :

 “It is a central conservative insight that democracy confers both rights and responsibilities. Attending a polling booth on election day is the mildest possible responsibility”

“Voting is a civic duty”

“Obligations may be imposed on individual for the benefit of the society generally”

Many countries like Australia, Belgium, Cyprus, Greece, Argentina, Brazil, Chile and Egypt to name a few have compulsory voting.

 Government of Gujarat is thus not the first to come up with the concept. On April 17, 2009 the Supreme Court of India had dismissed a plea to make voting compulsory. The plea was filed by Atul Sarode from Savda district in Maharashtra. He wanted to make voting compulsory for all elections. His plea also mooted the idea of not allowing any one to represent a constituency unless he/she fails to get a minimum of 51% of votes. If that doesn’t happen then there should be re-elections. We cannot choose the best from the worst. After all it’s a matter of running our constituency. We do not want some random person to govern us. We want responsible people. Why can we not have re-elections ? Some say that it is too expensive. I say if he/she is going to govern us then we definitely should take all precautionary measures available to see to it that we choose only the best. The plea also mooted the idea of e-voting.

 A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam dismissed the plea and observed that a greater voter turnout could be ensured only by increasing people’s awareness. They also observed that voter turnout of 60% was satisfactory. (?!?!?!)

Well, this is the state of our India.

 We also have a No vote provision in our constitution. Article 49-O of The Conduct of Election Rules, 1961 gives the right to its citizens to not vote for any of the candidates even after going to the pooling booth. This provision has been very nicely hidden by our politicians. I have never seen a News Channel run a report on this provision. Even when it comes to the papers, it just a small article stating the basic things. Even poll booth volunteers don’t know what steps are to be taken when someone wants to exercise this right.

 The Gujarat Local Authorities Laws (Amendment) Bill, 2009. allows negative voting. The manner of negative voting and its impact on other candidates will be worked out by the state government through special rules framed later. It is also under consideration that all candidates will be disqualified if negative voting is the highest.

In countries that have compulsory voting, there are certain sanctions imposed if people fail to vote. Some of them are :

• He has to give a legitimate explanation for not voting. ( I think this can be easily abused)
• A fine is imposed on him/her. The amount of fine depends from country to country.
• It can also lead to imprisonment. No cases have been filed under this but sometimes when a person does not pay fine even after repeated warnings then he is sentenced to imprisonment. Although the reason for imprisonment is given as failure to pay fine and not failure to vote.
• Other sanctions are like in Belgium, it is difficult to get a job in public sector if you have not voted. There are also social sanctions, in Mexico it is difficult to get a day care place for your child if you are a non-voter. Salary of government employees is sometimes stopped if they don’t vote.

 Gujarat government is also thinking of something like that. An official has said that people who do not vote will be deprived on Below Poverty Line (BPL) cards, government service and subsidized loan. Defaulters will be served a one month notice and in that time they have to give a reason to the election commissioner for not voting. The exempted categories will include people who are physically incapable due to illness, or absent on the date of election from the country or the state of Gujarat.

 India is a land where Bills and their corresponding Acts can sometimes be so different that it’s difficult to find something common between them. We can just hope that this time they come up with a logical Act.

Long live Democracy.

The large part of law consist of various behavioral perspectives in the form of 'Duty' that is, mode of conduct to which people must confirm and by which their actual behavior is judged. Thus, the very concept of 'is' law is composed of 'ought'. it is the ought that acquires the character of law, which has filtered through certain criteria of validity.  Natural lawyers would assert that a proposition is law not because it has pass through few formalities but for being a moral consideration and by virtue of  an additional moral content .

Now the point is what is moral is a debatable topic and that is why there is a provision of amendment in our constitution it self. The content of the morals keeps on changing. It changes with the time and changing needs of the society. Thus, the growth and development of the society is essential. Law emanates from the society and it differs from one to another. The needs of the society would fill the content of the 'morals' which later transforms into law.

Take the example of 'Right to Education' , the need of the hour is to educate people of India at large. But the question is how? Now the framers of the law have been looking into the matter since long and they have formulated many measures which will encourage the growth of literacy rate. Even  there were steps taken to improve the surroundings which in a way helps in the way of promoting education. There were many affirmative actions taken by the government. The right to education is a fundamental right under Article 21A was incorporated in 2002 and in the year of 2010 the Right to education Act has passed.

I am not taking the aspect of why being so late because that is different aspect alltogether. I am concerned with the point that the importance of sociological approach in the making of positive law.Thus, to sum up this point I must say that law is nothing but a compilation of every seeds of social, cultural and moral values which is presented to the people in a bunch of papers with a sanction attached to it.

In the case of S.K. Alagh Vs. State of U.P. and Ors. reported in (2008) 5 SCC 662 the Hon’ble Supreme Court, at paragraph 20 thereof, observed  as under:

“…  We may, in this regard, notice that the provisions of the Essential Commodities Act, Negotiable Instruments Act, Employees' Provident Fund (Miscellaneous Provision) Act, 1952 etc. have created such vicarious liability. It is interesting to note that Section 14A of the 1952 Act specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company.”

For easy reference, the said Section 14A of the Employees' Provident Fund (Miscellaneous Provision) Act, 1952 Act is extracted herein as under:

 14A. Offences by companies

(1) If the person committing an offence under this Act [,the Scheme or[the[Pension] Scheme or the Insurance Scheme]] is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under the Act[, the Scheme or[the[Pension] Scheme or the Insurance Scheme]] has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section,--

(a) "company" means any body corporate and includes a firm and other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.]

And since Section 405 of the Indian Penal Code defines 'criminal breach of trust' , the said provision is as under:

Section 405-Criminal breach of trust-

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

From the bare reading of section 14A of the Employees' Provident Fund (Miscellaneous Provision) Act, 1952 and Section 405 of the IPC,it is interesting to note that there is no semblance of any kind whatsoever between the two aforesaid provisions leading us to the humble conclusion , with due respect to the Hon'ble Supreme Court that its observation   that “It is interesting to note that Section 14A of the 1952 Act specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company” appears to be incorrect.

Section 14A of the 1952 Act  is a vicarious liability provision akin to provision similar to Section 141 of the Negotiable Instruments Act, 1881 ('NI Act') or Section  140 of the Customs Act, 1962 or Section 85 of the IT Act and does not create any independent offence. It simply extends the liability of such an offence committed by a company under the 1952 Act to every person, who at the time the offence was committed by the company, was in charge of, and was responsible to, the company for the conduct of the business of the company.

In view of art. 141 of the COI such observations have the potential of being  misused by mischievous lawyers and it also adversely affects the general undertstanding of the provision involved.

“I’ve got it, Bob!”, exclaims Katie (Colby, Hewitt and Richards’s pretty young graduate recruitment officer). “We can use the leftover budget to sponsor a moot in India to increase our visibility among law students, you know.” 

No sooner do the words come out of her perfect, round mouth than the taste of bile assails mine. I feel a distant pounding in my ears. For the avoidance of doubt, these phenomena are not caused by butterflies of excitement spreading their wings.  

[Please for a moment ignore the ongoing heated debate about the legitimacy of the Mooting Premier League's scoring system and LegalPoet’s good-hearted exhortation of Tom’s, Dick’s, Alice's(?) and Harry’s efforts in 15 CV TIPS: Make RECRUITERS pounce on you like DOGS ON BONES and The drunk PIPO]

[Listen to ME carefully now.]

My objection to mooting is simple-stripped to its very core, mooting is THE most overrated activity in existence, invented and indulged in by second-rate individuals with diminished libidos. 

You see, several years ago, as a fresher I succumbed to the charms of the convenor, and found myself bailiff-ing for a moot court competition. I see today why those four hours of my life were not entirely wasted- based on this harrowing experience, I can proceed forthwith to destroy myths Katie harbours about mooting.  

********************************************************************

THE MYTH OF THE BEST TEAM WINNING

Certain rotten and diabolical individuals have led Katie to believe that the competition is between the two teams that are mooting. Nothing could be further from the truth. This disgraceful contest is between the fabulous mooter hero and the villainous moot judge - mano e mano. The other team is just a bonus thrown in to double the fun.

I explain to Katie that it’s the blatant unfairness of the system that gets me worked up.

Here’s the mix. Even the most magnificent mooter has, at best, a vague idea about what he’s arguing. His nemesis, on the other hand, is someone who already knows all the answers (usually by virtue of being provided with a little something called a bench memorandum). The mooter’s faked sincerity mixed with his desperation to triumph against all odds, however, lends to the contest a hint of touching romance.

The audience knows there’s only one way this can end. They may as well have ordered a pizza, rented a slasher movie and stayed at home. Their interest in proceedings is sustained by the variety of methods that are used to humiliate the student gladiator, some examples of which can be found below-

1. Some judges are not simply content with being all-knowing and all-powerful. They feel the irresistible urge to let everyone else in the room (i.e., friends, foes and most importantly prospective beaus) know that the mooter is actually a dummy. (Well technically- they have good reason to feel smarter than the mooter, armed with that memorandum and being done with law school two decades ago, you’d think?).
2. Another bunch of judges mistake the mooter’s grand speech for a lullaby and believe a nap would give them greater insight into the meaning of life. Since these judges then go completely dead to the world, they are immune to the mooter’s best weapons- operatic voice modulation and effective hand movements. Disaster.
3. Another particularly bad kind of judge is the one that is starved of the company of the opposite sex. Stare as much as you want while the pretty girl is speaking, but shouldn’t the ogling stop at least when the fabulous one is strutting his stuff?
4. By common consensus, the worst kind of judge is a sub-set of 1 and 3 above- the moot judge with great hair who takes a fancy to the mooter’s co-speaker cum prospective girlfriend. Once the mooter realises the threat, caution is cast to the wind and the moot hall becomes an amphitheatre. The only question to be decided is who has the larger manhood. At this point, the moot judge simply performs a delicate CBM operation on the mooter (more commonly known as “Castration-By-Marking”, a procedure pioneered by frustrated law school professors). 

Ergo, no team ever really wins. It's always the moot judge who goes home with his family jewels honour intact and, in most cases, takes the love of the mooter’s life along with him (courtesy: private moot-related feeback sessions for the faultless, devastated co-speaker). 

The mooter swears revenge on the judge and the cycle repeats itself ten years later- only this time, the villainous judge is the ex-mooter himself.

***********************************************************************

THE LEGEND OF THE COOL MOOTER

Still reeling from this earth-shattering revelation, poor Katie bravely makes the argument that (despite enduring humiliation on such a regular basis) mooters are still revered as the masters of the law school universe.
 
I hate to burst this one. I explain gently to Katie that “Coolness” does not associate with an individual who:

1. has vivid dreams of winning the award for best 'oralist' (not aware that the word actually pertains to the hearing-impaired who communicate by lip-reading, not to mention the word's new-age definition: http://www.urbandictionary.com/define.php?term=oralist).
2. has answered a "Whats up?" question at two ‘levels’ (like a duplex apartment);
3. has worn borrowed spectacles for the intellectual effect;
4. has sweated profusely in the same black suit several times;
5. has owned three black ties and never heard of a cummerbund;
6. shaves rarely, only to miss a spot resulting in a Hitler-Chaplin moustache on D-Day (and a cracked rib for the silently chuckling bailiff);
7. has never been wrong (especially at interviews where openness to new ideas is assessed);
8. has carried little post-it notes in his/her pocket on vacations.
9. cannot tell the difference between non-mooters and annoying insects.
10. has devoted serious thought and research on whether non-mooters turn out completely normal later in life.
11. was tolerated in law school solely for his value as a source of late-night cigarettes (so much stress, so many choices- Vienna? Jessup? Lachs?) 

*********************************************************************

I could go on. But I stop- pretty Katie is crestfallen. I think she realises her graduate recruitment plan isn’t all that grand (or humane) anymore. As a reward for showing her the light, she suggests we spend the excess graduate recruitment budget on dinner for two at Le Gavroche tonight. 

Modern Bob's your uncle (wink wink).   

Once there was a thirsty crow. It was so very thirsty that it could have drunk the whole pond in which my buffaloes and I bathe. But unlike other stories like these, this crow thought himself to be too cool. And the weather was really hot mind you.

The cool crow and the hot weather made an interesting combination. But he did not find a pot and throw pebbles in it. No, he was not old fashioned. And he was not the very modern crow like in the ‘Chatur Kak’ ad which breaks the pot with his beak and drinks water. No.

Actually he just did not fly long distances in the hot weather. In fact, he did not fly at all. Did not flap his wings at all. Sat on its grey, feathery ass all day long.

(Wait! Crows cannot do that). So let us say that he just sat on a dry Peepal tree branch (I wont call it Pee-Pool tree. We worship the Peepal tree in our village) pondering upon a question which he thought would solve this problem forever “WHAT IS THIRST”?

He pondered upon this question. He grew more thirsty. “What is thirst”? He still thought and thought and taxed his bird brain. He found many answers. Very sophisticated answers which his clever mind randomly came up with.

Some answers were contradictory. Some answers were ‘scary’. But he did not want to be a ‘scary crow’. He wanted to be a 'scholar' crow. So he used his clever mind to devise a clever theory.

Alas! He did all but drink water. And he died. He had found an answer, a very confusing, at times contradictory answer to ‘What is thirst’, but forgot to drink water. And he died. Leaving all confused.

Now comes the part where I churn butter from milk. Be ready to be involved in some brain gymnasts.

What have some of the legal philosophers done? They have just ruminated upon the question “WHAT IS LAW”? Why didn’t these bird brained (crow-brained to be precise) scholars know that this question does not have a singular answer.

They could have done a lot of good by involving themselves in the real delivery of justice. By providing water to those who need it so very badly. By quenching their own thirst and the thirst of a million others by providing justice. Real justice. By fighting the legal wars out in the open and ensuring justice to people.

For me that is real social lawyering.

Changing gears (actually changing cars) I must say that law students must be taught by people who are constructing something with the legal instruments. It could be a hut or a mansion. But learning from them is important: practicing lawyers, law firm members, lawyers involved with NGOs etc. Learning from the arm-chair scholars results in incomplete knowledge, sloth and retarded-ness as to the knowledge of the real world.

The forensic technology has played an integral role in solving criminal cases. D.N.A (Deoxyribonucleic Acid) tests, first discovered by Prof. Alec Jeffreys in 1985 in England has now become a credible source for identifying a person with the help of his blood, hair, sperm, muscle, nerve or tissue sample. Sometimes when the victims resist, they scratch their attackers, in such cases skin cells underneath the victim’s fingernails are extracted to identify the criminal. Compared to a blood test, the possibility of a D.N.A finger printing going wrong is one in 30,000 million.

D.N.A fingerprinting: – How is it done?

1. Specimens are collected from the crime scene.
2. The DNA is isolated and cut to match against other samples.
3. Subsequently, the strands are placed on a gel and an electric current passed through it
4. The samples are then matched with the existing records of offender, arrested people and suspects.

DNA profiling narrows the list of suspects that authorities need to work through. The FBI commented that DNA profiling allows them to dismiss one-third of rape suspects because the DNA samples do not match. Authorities recognize the possibility of specimens being planted at crime scenes, and therefore continue to investigate the crime based on motive, weapon, testimony, and other clues in order to more accurately solve the case.

Law Regarding D.N.A testing in India as compared to other countries :-

India has no specific legislation or provision related to D.N.A testing. There is no provision under the Hindu Marriage Act, Indian Evidence Act, CrPc or CPC which a party could be compelled to submit one’s blood sample for examination. In such cases the court is bound to invoke Section 151, C.P.C  for giving appropriate directions in the larger interest of Justice. Fortunately the courts have been instrumental in considering D.N.A tests as credible evidence from 1989.

However, countries like Australia, Canada and U.S.A have specific legislation related to DNA forensics.

The (Canada) D.N.A Identification Act, 1998 provides for the constitution of National D.N.A databanks. The act empowers judge to order persons for designated offences to provide D.N.A samples to derive D.N.A profile. The databanks help the investigative agencies in eliminating or identifying suspects or detecting serial offenders. U.K. Criminal Justice Act, 1995; provides that a blood sample for a D.N.A test may be taken forcibly by a court.

Loopholes in the present Legal System:-

1. It is on the discretion of the courts to consider D.N.A tests as a conclusive proof.

2. India has less number of D.N.A experts as compared to other developed countries. Moreover they are deprived of proper training, adequate laboratories, professional respect and perks.

3. The police is lacks the requisite knowledge of evidence collection from crime site. Most of the time the evidence is either ignored or destroyed.

4. The judges and lawyers lack forensic acumen and can be manipulated.

5. Even if evidence is send for D.N.A testing, the laboratories like F.S.L never produce the forensic reports on time.

6. Unlike Canada and Australia, we do not have a provision for National D.N.A Data bank.

7. Forcible blood test for D.N.A testing is not available in India.

8. It is often contended that the D.N.A testing violates the right to privacy of an individual.

9. Post-convict D.N.A tests are not recognized under the Indian law.

10. The power to issue directions for conducting D.N.A tests entirely rests on the court.

Recommendations

India definitely requires legislation in this regard. A D.N.A specialist must be given the status of an expert. They should be provided with adequate training and equipment. The number of laboratories must be increased. Moreover law students, lawyers, police and judges must obtain some official training and knowledge in D.N.A testing. The generation of forensic reports must be made time-bound. A D.N.A test must be not considered violation of individual’s right to privacy guaranteed under the constitution. There is a need for constitution of a National D.N.A data bank in the country. Before granting the right to D.N.A testing to post-convict, it must be ensured that the same is not misused by the prisoners.

This a duplication of the post on legal drift. It can be visited on 

http://www.legaldrift.com/decoding-the-d-n-a-legislation-in-india/

Imagine yourself dealing with a case where your client has been accused of murder. The Prosecution story states that your client was found with the murder weapon in his hand when the police arrived having been sitting calmly in front of the deceased for hours and showing no emotion whatsoever. Further, when the cops appeared, your client made no effort whatsoever to flee.

Now if you are wondering what plea you would take to get him out of the impending noose, and you have finally decided to do the ‘idiot’ argument, you may continue to read…

 Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.(Section 84 of the Indian Penal Code)

Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind but the Indian Penal Code does not go on to define "unsoundness of mind". The Courts have, however, essentially treated this expression equivalent to insanity, a term itself, which again has no precise definition but which is usually used to describe varying degrees of mental disorder. Thus, every person, who is mentally diseased, is not ipso facto exempted from criminal liability. There is a distinction between legal insanity and medical insanity. The Supreme Court in the case of Hari Singh Gond , reported in 2008(12)SCALE102, Court categorically states that  a court is concerned with legal insanity, and not with medical insanity. The Court was dealing with an Appeal from the High Court of Madhya Pradesh where Hari Singh Gond was accused of murdering his grandfather-in-law and in the trial he claimed innocence on the grounds of idiocy and sought protection under Section 84 of the Indian Penal Code. The Bench affirmed the lower court and High Court orders convicting Gond for the murder.

There are four kinds of persons who may be said to be not of sound mind (non compos mentis), i.e.,

(1) an idiot;

(2) one made non compos by illness

 (3) a lunatic or a mad man and

(4.) one who is drunk.

An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like,

A person made non compos mentis by illness is excused in criminal cases from such acts as are- committed while under the influence of his disorder.

 A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason.

Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.

Under Section 84, IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing

 (a) the nature of the act, or

(b) that he is doing what is either wrong or contrary to law.

Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).

Stephen in `History of the Criminal Law of England, Vo. II, page 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section

Mere abnormality of mind or

partial delusion,

irresistible impulse or

compulsive behaviour of a psychopath

affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case (1843) 4 St. Tr. (NS) 847.

The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.

Short, crisp and definite as a decision should be.

 However, when it says “or the like” it does leave some room for  imagination and argument.

As I smoke my morning cigarette (admittedly a disgusting habit I picked up back in college), I suddenly miss India. I shiver against the wind in cold, dark, damp London. It’s 7.30 a.m. and its pitch dark. Even after three and a half years, I still have times when I wonder what I am doing here.

What makes this the Promised Land? A question I have asked myself (and others) a million times before and one I still haven't found an answer to.

Since there are a couple of hours to go for work, I set out to make a list of things that could explain possibly why a young wide-eyed law student comes over to (quite literally) the dark side.

Here is what I came up with (in no particular order):

He/she:

1. has been morbidly fascinated by Yashraj movies from an early age (i.e., ever since he/she learnt what NRI means);
2. has had dangerous levels of exposure to Monty Python’s Flying Circus;
3. believes James Bond is a real person;
4. hopes to get with a hot foreign chick/guy (a separate blog entry shall have to be devoted to this rather fond hope);
5. is charmed by the accent of the hot chick/guy in 4 above (which he/she later realises is closer to Geoffrey Boycott being strangled than Yes Minister);
6. wishes that the great tan he/she was born with be appreciated (while his/her friends still use Fair & Lovely/Handsome);
7. finds out that Europe is closer to London than Bangalore;
8. wants to be the automatic choice for best leg-spinner in the firm's cricket team (and he/she wants to rub it in when India beats the South African second XI);
9. needs more grocery money than the obscene amounts Indian firms pay graduates;
10. appreciates human-prototype billable hour targets (because donkey-testing is banned in the UK);
11. wants to sweat less (logical corollary to 10 above. Also related to the weather, although there was a 33 degree Celsius heat wave in the UK last year); or
12. is certifiable and wants to multi-task (or build his/her CV, which has forever been a favourite hobby of law students- please refer to Multitasking- The 'certified' way).

I feel a lot better about things having undertaken this much-needed analysis. I whistle softly to myself as I put on my suit and knot my tie.

The next lot of eager starry-eyed Indian trainees is due to start at Colby, Hewitt and Richards LLP today.

Again, this is based on a sample of the law school that I study in, situations may differ according to where the person reading the note comes from.

Imagine this; ‘A’ is simultaneously presenting a paper on corporate governance, doing an international moot in Vienna and is the convener of the Legal aid cell which is organizing a seminar. ‘A’ is actually back home enjoying his vacations.

‘A’ is a delight to watch, multitasking at its very best one can say. But, how did ‘A’ do it. The answers are as follows:
a)    The paper on corporate governance is being presented by the organizers themselves, certificate to be emailed later on.
b)    ‘A’ is a researcher at the moot in Vienna which does not make it necessary for him to be there, hence, the certificate for the same is also assured.
c)    ‘A’ is in good terms with the faculty convener of the legal aid cell and hence, delegates work to the volunteers. Therefore, he makes sure the certificate for the same is arranged again.

‘A’ now has authentication to show that he has done all the above mentioned activities without having been present at any of them. Since, nobody does inquire into how, what and why the above mentioned activities were undertaken by ‘A’. ‘A’ has benefited out of the good planning that he undertook while carrying out all these activities. Additionally, nobody can point a finger at ‘A’ for having not taken active part in any of the above mentioned activities. He researched and made the paper for the conference; he researched for the moot and also delegated work to the volunteers in a precise manner with other members supervising the seminar. ‘A’ on the other hand is vacationing back home in order to know which LLM program is best suited for him. Therefore, one arrow has effectively hit many targets while staying within permissible limits.

This is the beauty of law school and what it teaches you, it teaches you on how to make sure you plan what you want, and how best you can get it and what are the means of getting it.  Notwithstanding, the ethical nature of what ‘A’ has undertaken, it is effective. It’s entirely another argument that ‘A’ did not benefit from the experience of not being in anyone of the places.

 ‘Mere multitasking does not suffice, multitasking with necessary adjustments and working intellect is what makes a difference.'

P.S. This post was inspired by a friend of mine who in order to get a scholarship for an LLM abroad is multitasking in a similar manner. Again, the effectiveness of the same has been duly verified by precedents in the same regard.

THE CRIMINAL LAW (AMENDMENT BILL) 2010

This is a revolutionary step taken by the Ministry which is looking to amend the existing rape laws in India. The rape laws in India was last amended in the year of 1983 and that to after the Mathura rape case, where the appex cour of India was been harshly criticsed from all parts of the country and the reasons were very obvious. After the amendment in 1983, the offence of rape has taken various shapes in our country which poses glaring need for amending the rape laws to increase the ambit of section 375 of the I.P.C.

During the period from 1983 to 2009, plenty of cases have been registered under this offence.  [The term "rape" under English law actually covers all the aspects of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment]. This comparison clearly shows that the laws prevailing in India are not upto the mark to deal with the various forms and modes of committing the heinous offence. There are  grey areas  which have been in the discussion  for the last 27 years  and few among them are

• Section 375 of I.P.C. is having a very narrow scope wherin it could be applied.
• The age limit was 16years for giving the consent
• The undue advantage taken by the public officers
• The issue of marital rape
• Sexual abuse against the minors of either sexes

As far as the section 509 of the I.P.C is concerned, which deals with the cases of sexual assault consisting of any kind of whistling, passing leud comments of any form of gestures etc.to outrage the modesty of a women; is another area where punishment is less as compared to section 354 of I.P.C.

There are many areas which were in the criminal procedure code also which were also subjected to this recent amendentBil 2010.These are Section154,160,161,198,273 and 327. These sections deals with the generally with the duty of the police officers to take proper action against the charges under the Sections   354, 375, 376, 376A, 376B, 376C and 509 of the Indian Penal Code.

The changes in section 154 Cr.P.C. "  “Provided that if the information is given by the woman against whom an offence under sections 354, 375, 376, 376A, 376B, 376C and 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, as far as possible, by a woman police officer”

In section 160 of the Code of Criminal Procedure in sub-section (1), in the proviso, for the words “age of fifteen years”, the words “age of eighteen years or above sixty-five years” shall be substituted.  In section 198 of the Code of Criminal Procedure, in sub-section(6),-
(i) for the words “sexual intercourse”, the words “sexual assault” shall be substituted.

In section 273 of the Code of Criminal Procedure, before the Explanation, the following proviso shall be inserted, namely:-
“Provided that where the evidence of a person below the age of eighteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused”.

Another important entry has been made in this amendment bill and that is Section 166A which deals with the punishment for the public servant who will disobey the directions given under the law. The punishment is for 1 year or fine or both. this offence is also non-cognizable and bailable before the Magistrate of the first class.

We have witnessed many cases under the  this category of offences going unreported.The amendment in the Cr.P.C. shows the importance given to the part of the system who is gong to implement the laws.  There have been amendment in the Evidence Act as well such as-

In section 53A a prosecution for an offence under section 376 or section 376A or section 376B or section 376C of the I.P.C.or for attempt to commit such offence, where the question of consent is the bone of contention, evidence of the character of the victim or of his previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.

Conclusion-

The Criminal Amendment Bill, 2010 is no doubt tried every thing to fight with this societal curse with strong hands but it has still silent on marital rape, and gender neutrality of the offence of sexual assault. On the other hand, the provision related to the sexual offences against minors and even an attempt with this respect shall be punishable is a fine step. The steps taken against the public servants is also appreciable. This bill has encouraged the victims to come forward with their complaints so that it can be handled in a proper way as per the law. All in all, It is a fine  proposed amendment bill except the areas untouched. 

News Link from BBC : http://news.bbc.co.uk/2/hi/7132124.stm

Last Updated: Friday, 7 December 2007, 09:08 GMT  E-mail this to a friend Printable version

Hindu gods get summons from court

By Amarnath Tewary  Patna The gods have many temples in their name Pic: Vivek Raj A judge in India has summoned two Hindu gods, Ram and Hanuman, to help resolve a property dispute. Judge Sunil Kumar Singh in the eastern state of Jharkhand has issued adverts in newspapers asking the gods to "appear before the court personally". The gods have been asked to appear before the court on Tuesday, after the judge said that letters addressed to them had gone unanswered. Ram and Hanuman are among the most popular Indian Hindu gods. Judge Singh presides in a "fast track" court - designed to resolve disputes quickly - in the city of Dhanbad. The dispute is now 20 years old and revolves around the ownership of a 1.4 acre plot of land housing two temples.  You failed to appear in the court despite notices sent by a peon and post  Judge Sunil Kumar Singh in letter to Lord Ram and Hanuman The deities of Ram and Hanuman, the monkey god, are worshipped at the two temples on the land. Temple priest Manmohan Pathak claims the land belongs to him. Locals say it belongs to the two deities. The two sides first went to court in 1987. A few years ago, the dispute was settled in favour of the locals. Then Mr Pathak challenged the verdict in a fast track court. Gift Judge Singh sent out two notices to the deities, but they were returned as the addresses were found to be "incomplete". Local say the temple belongs to the gods Pic: Mahadeo Sen This prompted him to put out adverts in local newspapers summoning the gods. "You failed to appear in court despite notices sent by a peon and later through registered post. You are herby directed to appear before the court personally", Judge Singh's notice said. The two Hindu gods have been summoned as the defence claimed that they were owners of the disputed land. "Since the land has been donated to the gods, it is necessary to make them a party to the case," local lawyer Bijan Rawani said. Mr Pathak said the land was given to his grandfather by a former local king.

The two female suicide bombers who were responsible for the metro attacks in Moscow, were the widows of former terrorists. It is believed that about 30, “black widows” were trained by the Russian Bin Laden to carry more of such attacks in future.

The presence of suicide bombers has become a matter of grave concern through out the world. Suicide attackers are not driven by the motivation to die but  by the zeal to kill others.

These fearless  terrorists are often misconceived to be mentally retarded or abnormal, but the psychological studies have proved that they are perfectly normal people who are determined to do things differently.

In the modern era, suicide bombings were initiated in the Second World War by Japanese troops. The “Kamikaze” was used as a strategy to instill terror in the minds of the terror. Takijiro Onishi, who was leading the air force in Manila, used the technique of intentional crashing of aircraft by the inexperienced pilots.

1970’s witnessed the resurrection of suicide bomb attacks in Islamic Terror groups.  Hizb’allah used suicide bombings against  Israel.  Ayottah Khomeini (Iranian Spiritual Leader) re-interpreted the Shia Cult of martyrdom. And hence propagated the concept of suicide committed for religious causes. Hamas is another group operative in Palestine which has carried out numerous attacks including Gaza strip attack and Christmas Day Attack in Jerusalem.

Religion may not be the sole purpose of carrying out such attacks. L.T.T.E which was operative in Sri Lanka used the suicide attacks for accomplishing its political motives.

Reasons for becoming Suicide Bombers:

1. Poverty

2. Conditioning done by the terrorist groups that starts from the very early age of an individual.

3. The myth of martyrdom and the posthumous acclamation associated with it.

4. The manipulation jihad and other religious beliefs (like it would open the doors of heaven).

5. The assurance of the terrorist groups to support their families and promise to reward them with both cash and honor.

6. The internalization of terrorist ideology in the minds of the bombers.

7. Values of the cultural societies (in Lebanon and Palestine the suicide bombers are treated with the stature of martyrs). It is estimated that more than 30% of Palestinians support suicide bombers.

8. Revenge ( eg. Black Widows)

9. To bring attention to the demands of the terrorist groups.

10. The urge to follow the footsteps of a charismatic leader, friend or family member.

How is it carried out?

In Gaza, a game “shuhada” is staged by children on streets to offer mock funeral offerings to the suicide bombers (identified as martyrs by them). The children identify with them as their heros and ideals. Usually vulnerable children like them are carefully selected by a terrorist organization.

They are then divided into small groups which is presided by a teacher. Gradually the youngsters are transformed in to weapons of destruction. They are left with no sense of individualism and identity. The ultimate motive is to be an asset to the group. During their training, the candidates have to observe complete abstinence from women and sex. They are taught only selected religious texts from the Arabic Quran. No one; not even the parents of a bomber are informed about his missions.

Suicide Terrorism requires a very few means and little preparation. A determined perpetrator and an effective explosive is all that is needed. It is both cost-effective and more impact-oriented.

Impact of Suicide Terrorism:-

Places like embassies, shopping malls, railway stations, restaurants, buses, parks and posh streets are the most common targets of such attacks. It serves three purposes of the terrorists i.e.

1. Greater chances of causing more damage and causalities.

2. The probability of being caught is comparatively less.

3. A much greater impact of the general public. The terrorized people usually think, “If I’m not safe here, then where can I expect security?”

A terror attack is generally accompanied with two counter-responses by the masses. Most of the people express patriotic sentiments on the advent of such grave happening. Contrary to this, people also doubt the ability of their governments to protect them. Russia and Israel face suicide terrorism on continuous basis. The people in these countries not only possess hostile feelings for the minorities but also advocate stringent governmental action against the terrorists.

The mass public response after such heinous attacks has often empowered the government to take harsh steps. The American Patriot Act being one such example. Sri Lanka also enacted a legislation in 1979 through which it could hold any person under arrest  for 18 months without trial.

One of the major problems with regard to suicide bombers is that since they target civilians, in most of the western countries they are tackled by the police and not by the military. To prevent such attacks more and more public places must be guarded. The victims and their families must be provided with immediate medical help. The reconstruction of normal life is very important. The government must take initiatives to regain the trust of the masses.

The article  is the duplication of the post published on authors blog. It can be reviewed on 

http://www.legaldrift.com/suicide-bombers-married-to-death/