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Unnao Rape Case 2017: Delhi Court Convicts Ex-BJP MLA Kuldeep Singh Sengar

Unnao Rape Case 2017: Delhi Court Convicts Ex-BJP MLA Kuldeep Singh Sengar

District Judge Dharmesh Sharma of a Delhi Court has convicted expelled BJP MLA Kuldeep Singh Sengar for kidnapping and rape of a woman in Unnao in 2017. However, the Court has acquitted co-accused Shashi Singh of all charges. Sengar, a four-time BJP MLA from UP's Bangermau, was expelled from the party in August 2019.

Arguments on the quantum of Sengar’s sentence will be held on Wednesday.

 The charges were framed under Sections 120 b (criminal conspiracy), 363 (kidnapping), 366 (kidnapping or inducing a woman to compel for marriage), 376 (rape) and other relevant sections of the Protection of Children from Sexual Offences Act.

District Judge Dharmesh Sharma had reserved his judgment on December 10 after hearing the arguments of the Central Bureau of Investigation and the MLA’s lawyer. The proceedings were held in camera. The judge heard the case on a daily basis from August 5 after it was transferred from a court in Lucknow to Delhi on the Supreme Court’s directions.

Background:

The case took the first hype after the death of the victim’s father in judicial custody. The woman's father was allegedly framed in an illegal arms case and arrested on 3 April 2018. He died while in judicial custody a few days later, on 9 April.

On 28 July 2019 in a road accident of victim, her two aunts and her lawyer by a truck. In the accident, the victim and her lawyer were severely injured after the car in which they were traveling was hit by a truck. Two of her aunts were killed in the accident and her family had alleged foul play.

The apex court, taking cognizance of the rape survivor's letter written to then Chief Justice of India Ranjan Gogoi, had on August 1 transferred all five cases registered in connection with the Unnao rape incident from a Lucknow court in Uttar Pradesh to the court in Delhi with directions to hold trial on a daily basis and completing it within 45 days.

The longest UN Climate talk Madrid Ended with a Compromise Deal

The longest UN Climate talk Madrid Ended with a Compromise Deal

After two extra days and nights of negotiations, the Global climate talk have ended in Madrid, Spain with partial agreement to ask countries to come up with more ambitious targets to cut greenhouse gas emissions, to fulfil what has been agreed in 2015 Paris accord. However, the push for higher ambition to cut green house gas emission was opposed economic giant such as countries including the US, Brazil, India and China.

The dilemma between what the science says is necessary to avoid dangerous climate change, and the current state of play which would see the world go past this threshold in the 2030s remain unsolved. However, a compromise was agreed with the richer nations having to show that they have kept their promises on climate change in the years before 2020.

The longest UN Climate talk Madrid Ended with a Compromise Deal

The representative of The European Climate Foundation and an architect of the Paris Agreement, Laurence Tubiana, said, “The result of this COP25 is really a mixed bag, and a far cry from what science tells us is needed.”

The Guardian, witnessed the talk, reports that poor countries those were parties to the COP25 grew angry at what they saw as intransigence on the part of some richer nations, while the EU and a coalition of developing countries urged other to come forward with more ambitious plans to combat the climate breakdown.

 

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LEGAL NEWS

SC Agrees To Hear Petitions Challenging Citizenship (Amendment) Act 2019
Supreme Court bench headed by CJI Bobde agreed to hear the petitions challenging the Constitutional validity of Citizenship (Amendment) Act 2019 on December 18. At least a dozen Petitions have been filed in the Supreme Court challenging the new law which relaxed conditions for acquiring citizenship for non-Muslim migrants from Pakistan, Bangladesh, and Afghanistan. As per the Act Hindus, Sikhs, Buddhists, Parsis, Jains, and Christians who migrated to India without travel documents from Pakistan, Bangladesh, and Afghanistan on or before December 31, 2014, will not be regarded as illegal migrants.
Date - Mon, 16 Dec 2019 01:31 PM


Delhi HC Refuses Urgent Hearing in matter of Jamia Milia Protest for Judicial Enquiry against Police Violence
Delhi High Court Chief Justice D.N. Patel refused to provide an urgent hearing in a plea seeking action against Delhi Police for using excessive force against the students of Jamia Millia Islamia University. The petitioner Advocate Rizwan Nazmi asked the court to constitute a judicial inquiry to investigate the incident. The plea also asked for medical assistance and compensation for the injured students. Students of Jamila Millia Islamia University have been protesting against the enactment of the Citizenship Amendment Act. As per the Chief Proctor of the University, Delhi Police forcefully entered the varsity's campus on Sunday, following which, many students were beaten and forced to leave the campus.
Date - Mon, 16 Dec 2019 01:31 PM


Habeas Corpus Not Maintainable if Detention is Under the Witness Protection Scheme
Madhya Pradesh High Court Indore bench of Chief Justice Ajay Kumar Mittal and Justice S. C. Sharma held that a petition in the nature of habeas corpus is not maintainable in cases where the detention is made for the protection of witnesses, as envisaged under the Witness Protection Scheme, 2018. "Merely because, the petition in the nature of habeas corpus has been filed, this Court does not find any reason to allow the writ petition. No writ of habeas corpus, in the peculiar facts and circumstances of the case, can be issued especially when there is no illegal detention and in fact, the witnesses have been provided protection and care by the State" the bench said. 67 women and 7 children who were forced to indulge in sexual activities. The authorities had raided the brothel and rescued the women and children who willingly became witnesses and gave statements under Section 164 of CrPC. Thus they were then sent to shelter homes for safekeeping, under the Witness Protection Scheme, 2018. The court observed that where detention was aimed at protecting a person, the petition for habeas corpus will not be maintainable.
Date - Mon, 16 Dec 2019 01:31 PM


Allahabad HC Disqualifies Rampur MLA Md. Abdullah Azam Khan
Samjwadi Party's MLA Mohd. Abdullah Azam Khan from Rampur has been disqualified by Allahabad High Court from the membership of the State Legislative Assembly for being less than 25 years of age as on the date of election. Article 173(b) of the Constitution of India prescribes that in the case of a seat in the Legislative Assembly, a candidate must not be less than twenty five years of age. The petition filed by one Nawab Kazim Ali Khan alleged that Azam had filed a fake affidavit, depicting that he was born in the year 1990, for the purpose of contesting assembly elections. It has been alleged that Azam was in fact born in the year 1993 and thus was not competent to stand in the 2017 assembly elections.
Date - Mon, 16 Dec 2019 01:31 PM


Arms Amendment Bill 2019 Passed by Parliament
The Arms (Amendment) Bill, 2019, proposing life imprisonment as punishment for possessing or manufacturing illegal arms, has been passed by the Parliament. The bill makes celebratory gunfire also punishable with jail term and fine. The bill seeks to amend the Arms Act, 1959, to reduce the number of licensed firearms allowed per person and increase punishment for certain offences under the Act. The bill also introduces new categories of offences.
Date - Mon, 16 Dec 2019 01:31 PM


The Climate Change Activist Greta Thunberg Named Time Person of the Year 2019
Greta Thunberg aged 16 years popularly known for her speech at the United Nation Climate Action Summit 2019 has been selected as “Person of the Year’ by 2019 magazine of the year 2019. She is youngest of all who have achieved this honour. Bill Clinton, Barack Obama, Mark Zuckerberh, Angela Merkel, Donald Trump are many of the few who has received this award in past years. Times Magazine says that she has emerged as the biggest voice on the biggest issue of the earth. At the time of this announcement, Thunberg was at a meeting of the United Nations Climate Forum in Madrid.
Date - Mon, 16 Dec 2019 01:31 PM


Andhra Pradesh Approved Disha Act to Provide Harsher Punishment for those Guilty of Heinous Crimes
The Andhra Pradesh Criminal Law (Amendment) Act which is also known as Disha Act, has approved by the Andhra Pradesh cabinet headed by its CM YS Jagan Mohan Reddy to provide harsher punishment to those guilty of heinous crimes against women including the death sentence. The main substance of the Disha Act is that it calls for speedy trial within 14 days and judgment within 21 days in case of heinous crimes against women such as acid attacks and rape, in the presence of conclusive evidence. The Andhra cabinet has also given its approval to the Andhra Pradesh Special Court for Specified Offences against Women and Children Act 2019, which proposes the establishment of special courts in every district in the country to deal with cases of crimes against women and children.
Date - Mon, 16 Dec 2019 01:31 PM


LEGAL NOTES

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DEFINITIONS UNDER ARBITRATION ACT

Sec 2 (1), in this part unless the context otherwise requires:

 

  1. ‘arbitration’- means any arbitration whether or not administered by a permanent arbitral institution.

Explanation-  the definition is not comprehensive, it does not assign ant particular meaning to the term arbitration, therefore, its commonly understood meaning shall apply. The terms as defined in this clause connote that although arbitration is supposed to be entrusted to individuals appointed by the parties themselves this Act would recognize arbitration entrusted to permanent arbitral institutions also.

 However, individuals of the party’s choice can still be appointed as arbitrators because it is not obligatory to entrust it to an institution.

 

  1. ‘arbitration agreement’- means an agreement referred to in section 7.

Explanation- according to sec 7, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement or may arise where parties by reference import the arbitration clause contained in an earlier document into a subsequent contact so as to incorporate it.

 

  1. ‘arbitral award’-  includes an interim award.

Explanation-  sec 2(1)(c) merely clarifies that an arbitral award would include an interim award. It does not define the term. It must be read with sec 31. of the Act which deals with the form and contents of an arbitral award.

 

  1. ‘arbitral tribunal’-  means a sole arbitrator or a panel of arbitrators.

Explanation-  the expression arbitral tribunal means a sole arbitrator or a panel of arbitrators. In view of the provisions of sec 10 reference can be made to a sole arbitrator or an uneven number of arbitrators termed as an arbitral tribunal.

  1. ‘court’- means the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its original jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include ant Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

 

  1. ‘international commercial agreement’-  means an arbitration relating to disputes arising out of legal relationships, whether contractual or mot, considered as commercial under the law in force in India and where at least one of the parties is-

  • an individual who is national of, or habitually resident in, any country other than India or

  • a body corporate which is incorporated in any country other than India or

  • the Government of a foreign country.

 

  1. ‘legal representative’- means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting.

Explanation-  the definition of the term ‘legal representative’ can be divided into three parts. According to the definition the following persons are to be regarded as legal representatives;

  • a person who in law represents the estate of the deceased, for example, an executor of a will or administrator of the estate of the deceased or an heir under the personal law; or in the Court of Wards who administers the estate of the ward;

  • a person who intermeddles with the estate of the deceased, that is, a person who retains possession of the properties belonging to the estate of the deceased with the intention of representing it.

  • in the case of claims of a representative character a person on whom the estate devolves on the death of a party to the arbitration.

         The following persons have been held not to be legal representatives:

  •  an assignee from a deceased zamindar to whom the holding reverts on the death of the tenant.

  • A person who claims adversely to the estate of the deceased.

  • A new trustee appointed or elected on the death of the deceased trustee.

 

  1. ‘party’- means a party to an arbitration agreement.

Explanation-  the meaning of the expression ‘party’ is not restricted to a party who signed the agreement to the extent as provided in secs. 40, 41 and 35 since the context requires otherwise. Therefore, to the extent, as provided in secs. 40 and 41 the term party will include the legal representatives of the party upon the death of the party or a receiver or official assignee in the case of insolvency of the party, further, in sec 35 persons claiming under the parties are equated with parties for the purposes of the binding character of an arbitral award.

 

  1. Sec 2(7) defines ‘domestic award’- as an arbitral award made under Part-I shall be considered as a domestic awards

Explanation- in order to constitute a domestic award it is essential that-

  • The arbitral award should be made in arbitration proceedings conducted in India. It is immaterial whether the arbitration is an international commercial arbitration or non-international commercial arbitration.

  • Such proceeding must be in accordance with Part –I of the Act.

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Cross-Examination of Approver by the Accused

Category; trial procedure 

The term approver is neither defined nor used under Criminal Procedure Code but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offense to whom a pardon is granted under section 306 of CrPC with a view to securing his testimony against other persons guilty of the offense. The examination of the approver under section 306(4) of the code is mainly concerned with the examination of the complainant and witness by the Magistrate while processing the complaint under section 200 of the CrPC before setting up the process. The question of ‘Examination of the witness’ arises only after charges are framed under section 228 of CrPC. As there is no express provision u/s 306(4) CrPC which permits the accused to cross-examine an approver before committing the case to the Court of Session the Magistrate is not empowered to appreciate the evidence in session triable case. Further, the term “Examination’ under section 306(4)(a) cannot be interpreted to mean ‘Examination’ as contemplated under section 138 of Evidence Act, so as to give an accused the right to cross-examine the approver, at the pre committal stage. In Suresh Chandra Bahri v. State of Bihar (2000) the Supreme Court Bench has regarded section 306(4) as mandatory provision and observed that the object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing Court itself at the very threshold. 

In no stretch of circumstances the cross-examination which is contemplated under section 306(4) of the Code can be equated with the ‘examination of witness’ under section 138 of Evidence Act. where u/s 305 CrPC when an approver is being examined by a Magistrate, he is merely recording his statement after grant of pardon and as such he merely acts as a post office by recording a statement u/s 306 CrPC and thereafter forwards it to the court of session which is the court competent to try the case and therefore the term ‘examination’ used in section 306(4) cannot be equated with the term ‘examination of witness’ meant u/s 138 of Evidence Act. 

 

 

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The Complexity and Controversy of Article 31, 31A, 31B, and 31C

The ‘Right to Property’ is one of the most controversial and complicated subjects under Constitutional Law. Originally Right to Property was a fundamental right enshrined under Article 19(1)(f) and Article 31. Both of these articles were repealed by the 44th Amendment Act of the Indian Constitution.

Article 19 (1) (f) of the Indian Constitution states that every person has the right to hold and dispose of their personal property as they see fit and as long as it’s within the concurrent laws. Article 31 of the Indian Constitution states that no person can be deprived of his property without the consent of a proper authority. These rights were not absolute and provided with some restrictions or exceptions for example, the property can be acquisition-ed for the general welfare of the public, or protection of the interests of the scheduled tribes.

The controversies which were revolving around the “Right to Property” introduced several amendments such as 1st, 4th, 7th, 25th, 39th, 40th, and 42nd.  These amendments either modified the existing articles or added some new articles or modified the. Articles 31A(added by 1st amendment and amended by 4th, 17th, and 44th amendments), 31B (added by 1st amendment) and 31C(added by 25th amendment and amended by 42nd and 44th amendments) were results of the same process.

44th Amendment Act of the Indian Constitution was challenged in the RC Cooper vs Union of India case popularly known as the Nationalization case. The union government under Mrs. Indira Gandhi acquisition the private banks in order to achieve farmer’s growth and provide easy loans. The banks called it an inadequate acquisition as the compensation was for their properties, they were not compensated for their reputation. The Supreme Court observed that ‘The compensation provided to the banks under Article 31 of the constitution can’t be illusory or arbitrary’. The non-tangible assets of the banks should also be compensated for. In the Keshavananda Bharti case of 1973, the Supreme Court ruled that the amount cannot be arbitrary.

Article 31A, 31B, 31C, and The 9th Schedule

Article 31A

Parliament added Article 31a to the Indian Constitution by the 1st Constitutional Amendment of 1951. The Article gave a right to the government that it can acquire the property of the people and by doing so, the fundamental rights mentioned in Article 14 and 19 of the Indian Constitution shall not be violated.

This amendment allowed the government to enhance the growth of the nation in the following manner:

1. Introduced for the purpose of the abolition of the Zamindari system as the government took the land from the Zamindars and used it for public welfare by either redistribution or agriculture.

2. The government took control of different private companies in order to use them for enhanced growth. However, this could be done for a fixed amount of time after which, the control had to be returned.

3. The government redistributed the mining rights from my lords.

4. The government took control of the production and distribution of various other resources like oil.

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Article 31B

Article 31B was also introduced in the constitution by the 1st Constitutional Amendment of 1951. It was introduced with respect to giving validation to certain acts and regulations. The article provides that the provisions mentioned in Article 31a are immune from the Indian judiciary and cannot be nulled on the basis that they might violate the fundamental rights mentioned in Articles 14, 19 and 31 of the Indian Constitution. Supreme Court in Waman Rao Case ruled that the acts and laws mentioned in the IX schedule till date, shall not be changed or challenged, but any attempt to amend or add more acts to that schedule will suffer close inspection and examination by the judiciary system.

 

Schedule IX

Ninth Schedule was added to the constitution by the first constitutional amendment in 1951. The reason for adding the ninth schedule to the Constitution was that at that point of time various State Govt. and Union Govt. wanted to implement policy of zamindari abolition and other land reforms. The Supreme Court in Kameshwar Singh case had ruled that the right to property cannot be taken away. Therefore, Ninth Schedule was added which made provision that any law put in Ninth Schedule will be outside the purview of Courts and Courts cannot question the validity of those laws which are put under the Ninth Schedule. In the I.R. Coelho case, Supreme Court finally held that Judicial Review is the basic feature of the Constitution and the Supreme Court can test the validity of law if it violates the basic feature of the Constitution even if it is put under Ninth Schedule.

 

Article 31C

Article 31C was included in the Constitution by the 25th Amendment of the Constitution in 1971. With these articles, the government tried to give primacy to some Directive Principles of State Policy over the Fundamental Rights. Article 31C intends to fulfill two objectives:

  • Any law made in order to give effect to Article 39b and Article 39c of the Indian Constitution will avoid the scrutiny of courts even if it violates Article 14 and Article 19 of the Indian Constitution.
  • Courts will not have the jurisdiction to decide whether the law enabled really gives effect to the principles mentioned in Article 39cand 39b of the Indian Constitution.

 

 

In the first look, it may seem that the provisions discussed above are arbitrary and parliament has tried all means to keep the ball in its court in the name of growth and welfare of general. It may be true to some extent but the judiciary tried its best to keep up the ‘Spirit of Constitution’ and safeguarded the rights of people. Through several judgments by evolving the concept of Basic Structure the Supreme Court has time to time have protected the Fundamental Rights guaranteed to people under the Constitution of India.

 

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