Dimple Happy Dhakad and Normalising Preventive Detention

By Mr. Abhinav Sekhri “Preventive Detention” is a phrase that is inextricably bound with the history of the Indian Constitution. The Constituent Assembly affirmed the power for future governments to pass such laws, and only later got around to debating the restraints surrounding them. As a result, despite Article 22 having been inserted to serve…

Dear Politicians, Kindly Halt the Hate!

By Muskaan Joshi “In cases of xenophobic and communal lynching, one person’s body becomes a site of history.” -Prof. Upendra Baxi Current day politics in India is showmanship that revolves around balderdash ideologies of caste and religious identities [1]. Complementing the same are the legislative and political measures which have in a way created bias…

Constitutionality of Reverse Onus Clauses Under POCSO Act

             By Kavya Lalchandani Reverse onus clauses are usually found in criminal statutes where the burden of proving innocence is shifted on to the defendant or the accused after certain foundational facts have been proven by the prosecution. Under the POCSO Act, Section 29 and 30 deal with reverse onus…

Crime as a Choice: Crime and Economic Conditions

By Ratakshi Sarvaria In early societies, when resources were limited, the law of nature was based on survival of the fittest. The early exponents found crime in the conflicts of behavioural norms and saw crime as being rooted in “poverty, misery and depravity.”[1] As societies developed and money gained importance, it is safe to say…

Constitutionality of the ‘Marital Rape Exception’

By Maladi Pranay While Indian rape laws have been amended several times, most notably after the infamous Tukaram v. State of Maharashtra, and more recently after the Delhi gang-rape in 2012, one particularly contemptible colonial vestige has managed to survive these amendments. This is Exception 2 to Section 375 of the Indian Penal Code, often…

The Necessity of Mandatory Audio-Video Recording under S.161 of CrPC

By Vani Kaushik S.161 of the Code of Criminal Procedure (“CrPC”) lays down the rule of examination of witness by the police. It states (relevant portion): “a police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case”.[1] S.161(2) provides that persons being examined are required to…

Kanojia Gets Bail: A Strange Kind of Justice

By Mr. Abhinav Sekhri Prashant Kanojia was arrested for posting a tweet about a political personage. He did not abuse, use names, or anything of that sort. He posted a link to another story that was carried in the news about the claims of another person, about having an affair with the said personage. People were not up in…

Restrictive Bail Conditions in Indian Criminal Procedure: Lessons From History

By Mr. Abhinav Sekhri The law on bail in India has often been discussed on [The Proof of Guilt]. Most recently, we analysed the Indian Supreme Court’s decision in Zahoor Watali, which revolved around Section 43-D of the Unlawful Activities Prevention Act 1967 [UAPA]; the provision which imposes conditions upon grant of bail in UAPA cases that go beyond…

The Criminal Justice System of England & Wales: A Critical Analysis of the Requirements of Disclosure & Burden of Proof

By Ankur Jhunjhunwala   The Disclosure Regime Post the 1990’s, the disclosure regime has been described as the ‘battleground of the justice system.[1]It is fundamental to the aspect of a fair trial and prevention of wrongful convictions, and non-disclosure has historically often lead to miscarriages of justice.[2] There was a large amount of academic commentary…

Constitutional Validity of Section 376-E of the Indian Penal Code

By Vishwa Patel Introduction Recently, the Bombay High Court, while dismissing the appeal from the convicts of Shakti Mill gang-rape case, ruled on the constitutional validity of the Section 376-E of the Indian Penal Code (hereinafter referred to as IPC) in Mohd. Salim Mohd. Kudus Ansari v. State of Maharashtra & Anr. The said provision…

Analysis of Female Offending in India

By Sahil Malhotra Abstract Male and female offenders are not treated equally in India. Judges often go beyond the law and apply social and cultural biases in determining whether a female suspect is liable, and in sentencing her if convicted. This article discusses various such biases and the consequences of their application in the judicial…

Intertwining Poverty and Crime: The Indian Bail System

By Arvind Pennathur Being kept in jail is a traumatic experience that has the potential to cast a shadow over an individual’s identity, and change them for worse. However, the law has created a solution to this: the bail system. It enables prisoners to be free upon furnishing security to ensure their presence during legal…

A Case on Silence: Dissecting the Right to Silence of an Accused

By Akash Mukherjee Introduction The right to silence is a vital right of the accused recognized by the law around the globe. It germinates from the right to protection against self-incrimination embodied in the Indian Constitution under Article 20(3). It is buttressed by the cardinal principle of criminal law that it is the duty of…

From Complainants to Consumers – A Perversion of the Criminal Process

By Mr Abhinav Sekhri Consider a scenario. Geetha loaned her friend Swati a sizeable sum. A year on, Geetha starts asking her friend to repay the loan. She sends many texts, but Swati doesn’t reply to a single one. Frustrated, Geetha comes to you, her friendly neighbourhood lawyer, for some advice on how to proceed…

Examining the Constitutional Safeguards Against ‘Surveillance State’

By B.V.S. Aditya Santosh and Siddhant Tomar INTRODUCTION The Union Ministry of Home Affairs’ terse Statutory Order dated December 20, 2018 (SO) garnered sharp reactions from the political community, cyber security experts and advocates of internet freedom, against what they perceived was an attempt at mass surveillance. The SO cemented the ideology that it provides…

Deporting Rohingyas: Questioning the Correctness of the Decision

By Raj Krishna INTRODUCTION On 4th of October, 2018, a three judge bench of the Supreme Court of India refused to stop the deportation of seven Rohingya refugees to Myanmar. These men had entered the Indian territory in 2012 without valid documentation. As a result, they were prosecuted under The Foreigners Act, 1946 for illegal…

Digitalizing the Procedural Law

By Shubhalakshmi Introduction The justice system in India has only very recently begun undergoing certain changes in order to incorporate the rapid change which has occurred due to the increasing use of technology and internet transactions. This paper will look at some of the changes that have taken place through judicial decisions, as well as…

When Rape Charges are Dropped: A Victim’s Dilemma and a Rapist’s Escape

By Jennifer Maria Dsilva Background According to the National Crime Records Bureau of India, the crime rate against women is 55.2%.[1] As seen in many judgments, including Mukesh and Another v. State (NTC) of Delhi & Ors.,[2] the rapist was given the death penalty seeing the brutality of the crime. Despite various laws and mechanisms…

Plea Bargaining: The Panacea for Indian Criminal Justice System

By Shantanu Parmar “The law is a cudgel when necessary and a balm where appropriate” – Stewart Stafford Introduction The legal system of any state warrants evolution as newer concepts are formulated to ensure the swift implementation of justice. This attains paramount importance as the inevitable development of society increases recourse to the courts, which…

Arrested for Playing PUBG!

By Nitesh Mishra “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” – Charles-Louis de Secondat, ‘The Spirit of the Laws’ Introduction Recently, the Gujarat Police has arrested some students found playing Player Unknown’s Battleground, popularly known as ‘PUBG’ in Rajkot. It…

An Appeal for Victim Impact Assessment

By Sanyukta Biswas As is the case with most jurisdictions around the globe, victims of crime were lost in judicial oblivion for a really long time in India as well. The framers of the Constitution dedicated two long well drafted articles for the well-being of the accused, namely, Article 20 and 22, whereas their victims…

Tracing the Development of Plea Bargaining in India [Part II]

By Varsha Gulaya Note: This work has been divided into two parts. The first part discussed the initial response of Indian courts to the applicability of plea bargaining, till the time it was finally given acceptance. The second part discusses various Law Commission reports in this regard along with the incorporation of this concept into…

Tracing the Development of Plea Bargaining in India [Part I]

By Varsha Gulaya   Note: This work is divided into two parts. The first part discusses the initial response of Indian courts to the applicability of plea bargaining, till the time it was finally given acceptance. The second part will go on to discuss various Law Commission reports in this regard along with the incorporation…

The Eyewitness Enigma: A Paradox in the Law of Evidence

By Riya Sharma In criminal law cases, convictions in India take place on the basis of whether the prosecution is able to establish the facts beyond reasonable doubt. The aim of the prosecution is to reconstruct facts of a past event through direct, indirect and corroborating evidences. Eyewitness testimonies are an account of the events…

The Supreme Court of India: An Uncertain Hangman

By Vivek Punia   Introduction The Constitution of India guarantees multiple rights to its citizens. All other fundamental rights are secondary to the ‘Right to Life and Liberty’ as all such rights cease to exist once the life extinguishes. Therefore, the fact that death penalty is an irreversible form of punishment demands that the standards…

Time for ‘Sedition Go Back’!

By Sumeysh Srivastava In “Gadar: Ek Prem Katha”, there is a nationalism packed scene where Sunny Deol’s character, Tara Singh, is being asked to convert to Islam so that his iniquitous Pakistani Father-in-Law (Amrish Puri) can accept him and allow him to be with his wife and kid. In this legendary scene, Tara Singh approves…

Passion Crimes and the Gender Perspective

[Divya Kumar is a third-year law student at National Law University, Jodhpur] “Human behaviour flows from three main sources: desire, emotion and knowledge”       – Plato   Human beings are distinct from all other species of life due to the distinct features of emotion and reason they possess. A Chinese proverb states, “control your…

Bail: An Enigma in Uttar Pradesh

[Gaurav Pathak is associated with VAS Global and practices law at New Delhi.] The Allahabad High Court in September 2018 amended its 10-days bail notice period rule and changed it to 2 days. This notice period means that no bail application will be placed before the High Court until two days have elapsed from the date of…

Legality of Internet Shutdown Under Section 144

[Radhika Malpani is a third year law student at National Law University, Jodhpur.] Introduction With the increase in the reliance on internet for every single detail, its significance in today’s world is not less than a necessity. It helps in imparting information and knowledge to masses and has become an indispensable way of communicating opinions…

Mandatory Minimum Sentences: Over Criminalization?

[Jayesh Karnawat is a third-year law student at National Law, University, Jodhpur.] “Is justice best served by having legislatures assigning fixed penalties to each crime? Or should legislatures leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case?[1]” Indian scenario Currently in India, there are no structured…

Is Money Laundering an Independent Offence?

[Udayan Tandan was formerly a legal consultant at the Enforcement Directorate and currently practices law at New Delhi. R. Harikrishnan was formerly a law clerk to Hon’ble Justice A. K. Patnaik, Supreme Court of India and currently practices law at the High Court of Kerela. The authors also wish to extend gratitude to Ms Chayanika Saxena…

What Ails the Criminal Justice System of India?

[Vishavjeet Chaudhary is an Assistant Professor at the O. P. Jindal Global University, Sonipat.] (The Times of India) For any liberal democracy, it is imperative that the justice system works well. It is one of the defining traits of any mature democracy and hallmark of a free country. We have much to celebrate. Being a…

Penal Populism: The Deadly Power of Their Opinion

[Preeti Gurnani is a law student at the National Law University, Jodhpur] ‘Democracy which began by liberating men politically has developed a dangerous tendency to enslave him through the tyranny of majorities and the deadly power of their opinion.’ – Ludwig Lewisohn, The Modern Drama, p. 17 In very simple words, penal populism refers to…

Unconditional Wait for Yamraj…

[Kritika Parakh is a third-year law student at National Law University, Jodhpur.] Suicide is perceived as a crime since long, perhaps even before the development of the legal systems in the world. The most prominent reason is the religious belief that suicide is a sin. Since the fundamental structure of the legal systems worldwide was…

The Death Penalty – An Investigator’s Point of View

[Mr. Bruce Sackman is a private investigator specializing in healthcare-related matters in New York City. Currently, he is President of the Society of Professional Investigators Inc., and has recently co-authored a book titled Behind the Murder Curtain] “We hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased…

Is Cassation Limited by Law a Bar to Effective Justice?

[Evangelos Stasinopoulos is currently a Judge at the Athens Court of First Instance, Greece] The present article provides an analysis of the provisions regarding the right to appeal to the Supreme Court of Greece (called ‘Areios Pagos’), which have been deemed as a bar to the effective justice delivery system by the European Court of…

Decriminalizing Adultery: The Sole Itinerary with the Supreme Court

[Preeti Joseph is currently a Teaching Assistant at National Law University, Jodhpur (India)] A five-judge constitutional bench of the Supreme Court of India, on 27th September 2018, gave its decision in the case of Joseph Shine v. Union of India[1] and declared Section 497 of the Indian Penal Code [“IPC”] that criminalized adultery as unconstitutional….

Sports E-betting: Legal!

[Achal Mittal is a third year law student at National Law University, Jodhpur] Gambling primarily refers to gambling activities taking place in physical premises, defined as “gaming or common gaming houses”.[1] Gambling activities have enjoyed an enormous popularity amongst Indians. A 2011 report by KPMG has estimated India’s overall gaming market to be worth Rs….

Mr. Criminal Defamation: Ain’t you unconstitutional?

[Anmol Jain is a third-year law student at National Law University, Jodhpur.] This work concerns the case of Subramanian Swamy v. Union of India,[1] wherein the Supreme Court of India upheld the constitutionality of criminal defamation.[2] The crux of the dispute, in this case, was whether imposing criminal liability on a private individual for defaming…