Legal News

23
Nov

“KILL OR KILL NOT” – JUVENILE JUSTICE SYSTEM

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”- Nelson Mandela

It is well written in Bible that the children are gift of god. Every single life, every single child is a blessing and reward in itself. Whether they are bringing pride to their mother or father or whether they are teaching us how to be patient or to have a sense of forgiving, children are gift of god and a source of growth of the kingdom of God on Earth. But why such gift of god is put behind the bars and locked in jails? There is not a single instance of such happening but millions of children are held in jail, prison, detention homes. In many countries these gift of god are put to death for their crimes with the judicial system ignoring the value of child’s life. Children who commit crime from petty offences to murder have to suffer from the harsh sentence and lacunas in the adult justice system rather than to have restorative, counselling and rehabilitation justice programme[1]. Within the past few decades many countries had amended their juvenile code with the increase in the serious and violent crime by the young youth. These amendments have curtailed the power of the juvenile court and power has certainly transferred to the criminal court to sentence the young youth with harsher punishment. If a child who has committed an act should be treated as a juvenile or as an adult. The law determine such things on the basis of knowledge that youth has or not while committing an offence. But nobody looks for the reason behind such crime.

Introduction

“No one is born a good citizen; no nation is born a democracy. Rather, both are processes that continue to evolve over a lifetime. Young people must be included from birth. A society that cuts off from its youth severs its lifeline”-Kofi Annan

 

There have been many articles written about the victim children and children who needs care and protection but very little has been written about the juvenile offenders who commit offences and thereafter they have been neglected by the society. The state machinery put and hides them in an institution where no outsider is allowed to interact with them and on the completion of the sentence they have been thrown out off the institution back to that society which always considered them to be neglected. Juvenile offenders are not treated in the same manner as that of adult because the reason for this being that a young juvenile is considered to be less blameworthy than an adult, as he is prone to act in more haste due to lack of judgement and incapability to understand the nature of his act what he is doing is either wrong or contrary to law. From the inception of court, juvenile justice system have proceeded from the assumption that children and young youth by lack of their relative immaturity are less able to control their impulses, less able to understand the seriousness of their offence and less able to foresee the consequences of their act moreover the poverty, cruelty and neglect by the society are determining factor of increase in crime by juvenile.[2] Therefore a child is always a part of society in which he lives. Due to immaturity of his understanding he easily gets motivated through the circumstances around him. It is the social environment and social context that provoke his actions. There is no true love in the world as long as children are made to suffer. Justice is everybody’s right then why Children are made to suffer from inhuman degrading treatment and punishment. Children are the greatest source of national assets and what will happen if all the youth of the country are to be tied in bars whether country would be able to develop. There is universal principle that all human beings are not born criminals but it the environment or social context that forces to do something wrong. Similar in case of children, all children are not born criminals but it is the upbringing that affects always. If a child is brought up in good conditions and has received good education whether that child would become criminal, the answer would definitely be no but if a child who lives in unfavourable condition, he hardly gets food to eat and is brought up by certain person who had been involved in wrongful act won’t that child not become a criminal? “Children are like clay in potter’s hand”. They will be moulded according to the will of potter. Here potter are parents who have been assigned with the duties to make their children a better citizen who will definitely work in progress of nation. Let’s take two examples of two different situations’

1st example – There is child which has been brought well by his parents and received good education.

2nd example- There is a child whose parents are not alive and is brought up by a person who is involved in wrongful acts (murder, robbery, theft) and that child has not received any education.

In both the situation the child in example 2 won’t become an offender and he becomes an offender who would be liable is it the juvenile itself or the person who has taught him all such things.

Who is Juvenile?

Juvenile is the person who has not attained a certain age at which he like an adult person under the law of the land can be liable for the criminal act. Juvenile is a child who is alleged to have committed wrongful act and violated some law which declare the act and omission on the part of child as an offence.

Background of juvenile Justice.

Article 40 deals with Juvenile Justice[3] Children who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their rights. Government are required to set up minimum age below which children cannot be held criminally responsible and to provide minimum guarantees for the fairness and quick resolution of judicial or alternatives proceedings. This convention also deals with the establishment of rehabilitation for the child victims. Children who are neglected, abused or exploited should receive special help to physically and psychologically recover and reintegrate into society. Particular attention should be paid to restoring health, self respect and dignity of the child.[4] The convention also deals with the article which provides that no one is allowed to punish children in a cruel or harmful ways. Children who break the law should not be treated cruelly. They should not be put in prison with adults, should be able to keep in contact with their families and should be sentenced to death or life imprisonment without possibility of release.[5]

The constitution of India also provides the legal framework for the protection of children. The constitution also mandates to provide the special protection to children under Article 15(3). Article 39 (E and F) provides protection of children’s healthy development. Article 24 of Indian constitution prevents the children from working in hazardous environment below 14 years. Article 21-A provides the right to education to all the children. In spite of such legislation the government is ineffective to control the increase in crime by the Juveniles. If one looks back to all the reason behind such crime one will find that the reason behind the increase in the crime by juvenile is illiteracy and the social environment that motivates the child to move forward in a direction for crime. Now the question that always strike that whom we should punish for such act, is it the juvenile or the immaturity of the Juvenile to understand the nature of his own act which he is doing is either wrong or contrary to law. Punishing Juvenile would impart Justice or not? Certainly justice would never be provided by punishing Juvenile, but we have to look the factors or the reason behind such act of Juvenile. We have to overcome the entire scenario before making any view on the Juvenile offenders.

Juvenile and Death Penalty

“Criminals do not die by the hands of the law. They die by the hands of other men.”-George Bernard Shaw,

 

In earlier times the Juvenile offenders are too punished just as the same as that of the adult. An act of Juvenile offender would be calculated the same as of adult and this was the reason why Juvenile is to punished with death sentence also.

History of Juvenile Death Penalty

Thomas Graunger was the first Juvenile to known to be executed in America and found guilty of bestiality in Plymouth colony MA America in 1642. In Eddings v. Oklahoma[6] was the first case the Supreme Court agreed to hear petition based on defendant’s age.  The Supreme Court without ruling on the constitutionality of Juvenile death granted death punishment to a Juvenile. Since the series of the decision of the United States Supreme court many Juvenile were hanged irrespective of taking into the consideration of immaturity of the youth to understand the nature of the offence. Was death punishment was only the way to stop the increase rate of crime that was committed by Juvenile offenders. Was there was no way stop the crime? There was the way but that road was not taken. Reports tell that about 196 juveniles were punished with the death sentence during 1973 and 1974 in America and it was the highest death of Juvenile offenders who received the death sentence. Article 3 of Universal Declaration of Human Rights 1948 says about “Right to life and personal security”. Are children not included in the categories of human beings? Is death penalty is the only remedy to stop crime? Providing death penalty to Juvenile offender will provide Justice to other. Do we really think that juvenile is themselves responsible for the crime or it is the environment which makes them or forces to move in that direction? Death penalty is not remedy for all crime. The need of the time is to rethink on the punishment that has been given to Juvenile offenders. If all the youth of the country commit crime what we should do, either we should hang them or we should provide them with the better environment which could modify their thinking process and improve their thought process. Therefore it is the Juvenile System which tends to protect the children from the gorge of death penalty. The focus of Juvenile legislation is on Juvenile rehabilitation and reformation so that all children may get a fair chance and opportunities to develop themselves as good citizen not as an offender.

Juvenile System in Conflict with law with adult system

It has always been stated that Juvenile system protects the young offender from getting into the adult system and protect them from getting severe punishment. But it is really the fault of Juvenile offenders behind every crime or it is the environment which forces the juvenile offenders to do that act. Juvenile offenders need to be protected because we cannot punish them for the act which they have not capability to understand. There are millions of children around the world who have been tied under bars, prison and detention home while some of them have been hanged for their act. Do they need the same treatment as that of adult for every act? As earlier said that children are like clay in potter’s hand they will be moulded according to the potter. Where a child is born and brought up in unfavourable condition and takes birth in that environment where there are large number of offences that are going to take place each and every day or whether child is born in that society which is known to be the society of criminal is it his fault that he had taken birth their or it is the fault of those people who taught him such things. If a child at the time of birth would have enough knowledge to distinguish between right and wrong then I think that there would be no need of “Juvenile System”

Conclusion

“Children need love, especially when they do not deserve it.” – Harold S Hulbert

Children are the nation’s future citizen and they deserve the compassion and the best care which we can give to them. No child is born criminal and all children are innocent and responsibility should be attributed to that social environment and social context that have stirred the criminal tendencies whose removal might mould the child and change the child into a person of stature and excellence. Death penalty won’t provide remedy to the victim party nor would it decrease the crime rate by the Juvenile offenders. The best way is to provide a wholesome environment to each and every child of the world so that each child would develop its personality to the fullest extent as citizen of nation nor as an offender. Moreover each and every child must be cared brought up well by its parents. At last one should not forget that a Juvenile offender could be nothing more than poor child or child who because of the fault of others caught red-handed in the struggle for survival and he or she deserve a emphatic, kind and humanistic treatment.

[1] “ Children behind bars: youth who are detained, incarcerated and executed,” Youth Advocate Program International, p. 2

[2] Youth system contained in England and  Wales, John Pitt contained in The New Politics Of Crime And Punishment, edited By Roger Mathews and John Young, WILLAN Publishing, pg 7

[3] Convention of rights of child

[4] Article 39 of Convention of rights of child

[5] Article 37 of convention of rights of child

[6] 501 U.S. 957 (1991)

By Pranav Kaushal

17
Nov

Anticipatory Bail to Activist Rehna Fathima who attempted to make entry to Sabarimala was refused by Kerala High Court.

Anticipatory Bail to activist Rehna Fathima was dismissed who tried to make entry into Sabarimala. The temple of Lord Ayyappa Shrine was opened only for festive celebration in month of October after the order of Supreme Court allowing entry of women within limited age group of 10 – 50.

The FIR was filed by Pathanamthitta Police under section 295 of Indian Penal Code for outraging religious feelings based on Facebook posts. The complaint was filed by Radhakrishna Menon following certain pictures uploaded on Facebook in which she was clad in customary attire devotees, which were provocative and hurtful.

Anticipating arrest, she moved the high court seeking anticipatory bail. She contended that she believed in the system of “advaita” and had observed “vrutham” to visit Sabarimala. …

She further contended that her attempt to visit the hilltop shrine was out of faith and not to provoke sentiments. She had also posted that Sabarimala was not a Hindu temple and Lord Ayyappa was not a Hindu. …

Another picture uploaded by her depicted Lord Ayyappa with a red ribbon across legs, which was being cut by a woman with scissors….

Fathima, who was also part of “Kiss of Love” movement in Kochi in 2014 against alleged moral policing, was among the two women who had reached the hilltop on October 19, but had to return before reaching the sanctum sanctorum due to massive protests by Ayyappa devotees.

Rehana Fathima hit headlines as she was one of the six women who tried to enter the Sabarimala sanctum to offer her prayers to the deity. Rehana was given special protection by policemen who escorted her till the Nadapanthal, 500 metres away from the shrine. She was dressed like Ayyappa, in black clothes, carrying the irumudikettu (the two-layered sacred bundle without which devotees cannot enter the temple). Her partner, Manoj Sreedhar, said that she had observed a 21-day fast as per the customs and practices.

However, due to massive protests by devotees and priests and threats from the tantri to shut down the temple if women enter, she had to return from the temple without praying.

Rehana’s house in Ernakulam was later vandalised by people as news spread that she attempted to enter the temple. Rehana’s house, located near the BSNL quarters in Ernakulam, was vandalised. A BSNL employee, Rehana stays with her partner Manoj, who also accompanied her to the temple.

She and her family have also been expelled from the Muslim community by the Kerala Muslim Jama’th Council. “The Council has also directed the Ernakulam Central Muslim Jama’ath to expel her and her family from the membership of Mahallu,” a statement by Council president A Pookunju said. The Council also expressed their displeasure over Rehana’s participation in the ‘kiss of love’ agitation in 2014 and for “acting in a film, nude.”

14
Nov

Companies (Amendment) Act 2017: Major Changes Adduced to the Corporate World!

The Companies Amendment Bill of 2017 got the President’s assent on 3rd January 2018 and the same had been notified in the Official Gazette on the same date to constitute an amendment to the 2013 Companies Act but different provisions of such amendment Act will be brought into force on different dates by the Central Government. The Companies Law Committee (CLC) was constituted in June 2015 to resolve the issues arising from the 2013 Act and based on such recommendation of the report the Government had introduced the Companies (Amendment) Bill, 2016 in the Lok Sabha on 16th March 2016 which was passed by the Lok Sabha on 27th July 2017 and by the Rajya Sabha later on 19th December 2017.

The amendment is important as it now addresses the difficulties faced by the previous Act of 2013 while facilitating ease of doing the business and harmonising with the other statutes such as Reserve Bank of India Act, 1934 and such other regulations made thereunder. It also rectifies the inconsistencies of the 2013 Act. The new Amendment Act also realigns the provision to improve corporate governance. It also addresses the issue of investor protection.

Five major highlights of the amendments are mentioned below:

  • Align Act with SEBI and RBI

Sections which dealt with insider trading and forward dealing have been omitted as SEBI regulations are already in place to cover these kinds of offenses. Also, disclosures which are to be specified in the prospectus are also associated with SEBI’s power to regulate IPOs. The definition of the term “debentures” has also been subjected to an amendment to allow RBI to disqualify certain instruments as debentures.

  • Penalty Rationalisation

One of the most required amendment is that the amount of penalty will be levied keeping in terms with the size of the company, nature of the business, injury to the public interest, nature and gravity of default, etc. Penal provisions for small companies and one person companies have been substantially reduced. A New section has been inserted as well with respect to the aspects for determining the level of punishment.

  • Private Placement process is made simplified

Separate offer letter for private placement is not required now thus making the process more simplified. To ensure that the investors in a company get adequate information about the company, the disclosures are to be made under Explanatory Statement referred to in Rule 13(2)(d) of Companies (Share Capital and Debenture) Rules 2014 embodied in the Private Placement Application Form.

  • Loans to the directors

Companies are now permitted to render loans to companies or entities in which the directors are interested in passing a special resolution and agreeing to disclosure requirements. It was very difficult earlier on providing loans to subsidiaries with common directors.

  • Disqualification of the Independent Director is further clarified

Section 149 had a clause stating that an independent director was disqualified if such person had “pecuniary relationship” with “the company’ its holding, subsidiary or associate company, or their promoters, or directors. The amendment has actually added the fact that pecuniary relationship excludes the remuneration to such director or having transaction not exceeding 10% of his total income or any such amount as may be prescribed.

The amendments made by the new Act are to facilitate the simplicity of doing business in India. There are also several other amendments made through the same said Act to remove the inconsistencies faced in the 2013 Act.

by Anwesha Ghosh

14
Nov

Clash Between Police and Lawyers: Odisha High Court

The clash between lawyers in Odisha and Police Personnel grew to such an extent that the matter addressed by Division Bench of High Court comprising, Chief Justice K.S. Jhaveri and Justice K.R. Mahopatra, deferred the hearing to 15 November. The State Crime Bench, on 9th of November, had asked for 6 weeks time for submission of chargesheet. However, the Court had rejected the plea and directed the state investigation agency to submit a full-fleged chargesheet by 12 November.

This is the third occasion on which the Court deferred the hearing of the case. The investigating agency, time and again, fails to submit the chargesheet.

The case was filed by Adv Devi Prasad Patnaik seeking quashing of all the three cases filed against him in the Chauliganj Police Station which is to be heard by Justice CR Das who is monitoring the investigation of all the criminal cases arising out of police-lawyer tussle.

However, according to Indian Express, Justice Das have proposed a compromise between the parties involved. The proposal is said to be accepted by associations of lawyers but pending with police.

Police and Lawyers are the pillars behind functioning of judicial system. Such a clash not only deter the functioning of the court but opens a space for grave injustice to the victims of their respective cases.

13
Nov

Maoist Chhattisgarh Turns Democratic in New Phase of Make in India

India has been democratic since 1947 which was officially recorded on 26th of January 1950 but voters turnout has been an issue in the democratic India. The political senirio has not been able to attract educated class while for lower middle class, it doesn’t matter who is in government, they know their fate, probably that is why paid vote came in motion.

However, in the first phase of elections held on Monday, 76.28% voter turnout was recorded. The 18 constituencies that went to polls on Monday were – Narayanpur, Dantewala, Bijapur, Konta, Mohla-Manpur, Antagarh, Bhanupratappur, Kanker, Keshkal, Kondagaon, Dongargaon, Khujji, Bastar, Jagdalpur and Chitrakot.

Highest poling percentage were recorded in Dongragaon (85.15%) while lowest was recorded in Bijapur (45.53%).

13
Nov

Supreme Court Shocked on Bihar Police for its Failure to Trace Former Cabinet Minister Manju Verma

Manju Verma who was social welfare minister in the Bihar Government has to step down from the cabinet in the wake of Muzaffarpur shelter home scandal in a case related to alleged recovery of illegal ammunition from her. According to the report submitted by Tata Institute of Social Science to the Bihar government in March several women in those shelter home provided by Social Welfare Minister Manju Verma where women inmates of shelter home were allegedly raped and sexually harassed, she had to resign after it came into light that her husband Chandra Shekhar Verma had a business with a prime accused Brijesh Thakur.

A bench of justice Madan B Lokur and Deepak Gupta, asked, ‘ Has the lady Manju Verma been arrested?’

The council appearing for the Bihar government said Varma was not arrested yet as the police were unable to trace her. 

The bench asked the concerned department to explain as to how a former cabinet minister is not treaceable.

If she remains untraceable until 27th of May then the DGP he has to appear and explain the bench that how a former cabinet minister is not traceable.

According to the report of Tata Institute of Social Science to the social welfare department of Bihar government over 30 girls were allegedly raped and sexually abused at the Muzaffarpur shelter home and the issue since then where dropped out of the power of media. Advocate Fauzia Shakil, appearing for petitioner Nivedita Jha, pointed out that at Higher authorities are involved in the case. Despite the fact that rampant physical and sexual abuse of boys and girls were going on at these 14 shelter homes no action has been taken by State till date. 

The bench on hearing the matter said, “There appears to be widespread mismanagement in the shelter homes of Bihar,” and the government of Bihar has to respond do this matter.

Muzaffarpur shelter home case maybe one of the example of hundreds of shelter home prone to grave injustice and tried hard to depress the matter. If you see such matter in your city, district or  anywhere human directly report it to us and will take the matter and file a case on your behalf. The concerned advocate will take the case on Pro Bono.

by Amaresh Patel

7
Nov

Do and Don’t for Ramrajya: Case 1

Do and Don’t for Ramrajya: Case 1

Do ad don’t will be a series of post suggesting transparent and welfare state as Ramrajya and corrupt practices as Ravanrajya. All the ‘do(s)s and don’t(s)’will be based on the judgment of High Court and Supreme Court. Initially, the story line will follow Uttar Pradesh as its prime question, than will move to all other respective states who have followed concept of Ramrajya. However, the story is equally symbolic for all other states. The word Ramrajya has been adopted from recent pointless discussion over the media panel and misconceptualising the core of Ramrajya.

Do(s) Case 1: Have CCTV Cameras Been Installed In Police Stations? Allahabad HC Asks State

Justice AR Masoodi demanded information in this regard in order to ascertain the manner in which police officials are dealing with public grievances.

The order was passed on a habeas corpus petition filed by one Rishi Kapoor, on behalf of his mother, Sudha Kapoor, alleging that the latter was illegally detained at the Aashiyana police station. His petition has demanded that she be produced before the court and be further set at liberty.

Don’t(s) Case 1: Illegal Detention and torture

Illegal detention and torture is certainly immoral in Ramrajya and unconstitutional in contemporary India. The State shall take responsibility of such action from its delegated departments and put an end to this at once.

6
Nov

Happy or Ashamed! Faizabad’s name will now be Ayodhya, Yogi Adityanath declares

A few days after changing the name of Allahabad to Prayagraj, Uttar Pradesh’s Chief Minister Yogi Adityanath announced on Tuesday that Faizabad district will now be known as Ayodhya. The Chief Minister said in the pilgrimage located about 120 km from the state capital Lucknow, “Ayodhya is a symbol of our ‘Anan, Baan and Shan’.” Adityanath said, “No one can do injustice to Ayodhya.” He also said that Ayodhya was identified by Lord Rama. He said that there is a construction of a medical college which will be named after Dashrath. Also, the Yogi announced the name of the proposed airport in the name of the city, under the name of Srimada Purushottam Ram.

Politics and Religion should be separate and yet has certain positive interconnection so as to work for the welfare of its citizen. Unreasonable interference of either of them may be a primary cause of chaos following disturbance of the peaceful health of the state.

This is why President President Thomas Jefferson On January 1, 1802 wrote a letter to the Baptists of Danbury, Connecticut, who had requested clarification about the meaning of the First Amendment to the Constitution.  Jefferson described the Establishment Clause of First Amendment by writing

“Religious leaders and their followers should relish in this wall of separation, rather than trying to knock it down.  Why?  Because it is there not only to keep religion out of government, but to keep government out of religion.” This was how, the country from where we copied major part of Fundamental Right which is enshrined in part III of the Constitution of India managed to control unreasonable encroachment of state and religion for better health of its citizen.

Secularism in India means equal treatment of all religions by the state. With the 42nd Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. However, changing name of the cities in the name of religion and that too by mere announcement in religious event is against the preamble of the Constitution of India, thus unconstitutional.

Into Legal World on this auspicious occasion of Diwali invites advocates and anyone who is interested in the cause to file PIL on this matter. Advocates or law students interested to work on this matter may mail us at info@intolegalworld.com.

 

Please note that legal responsibility of this content falls on Amaresh Patel. 

 

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