-Sakshi Komal Dubey Arrests are so fundamental to how we view law enforcement; we frequently assess the effectiveness of the police by the number of arrests they make. The Code of Criminal Procedure, 1973 (“Code”) does not define the term “Arrest”. Having no standard definition, however, it can be defined as, when an officer takes … Continue reading ‘SHOWN ARREST’: A PRACTICE TO BE NIPPED IN THE BUD
MISTAKE OF LAW DEFENSE: A TOOL FOR SAVING INNOCENTS FROM INCARCERATION
-Srinjoy Debnath INTRODUCTION For an act to be criminal, a person should not only commit an offense but should also have mens rea or guilty mind; but what happens when someone commits an illegal act but did not have the knowledge that it was criminal or illegal? The maxim Ignorantia Juris Non Excusat which … Continue reading MISTAKE OF LAW DEFENSE: A TOOL FOR SAVING INNOCENTS FROM INCARCERATION
“Uncovering the Implications of Recording Information in Criminal Justice System: An Analysis of Section 154 of the Criminal Procedure Code “
-Himanshu Ranjan Introduction The recording of ‘information’ under Section 154 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C) is one of the most important procedures, which inter alia sets in motion the criminal justice system as and when a cognisable offence is committed. Section 154, Cr.P.C is the inaugural provision of Chapter XII- … Continue reading “Uncovering the Implications of Recording Information in Criminal Justice System: An Analysis of Section 154 of the Criminal Procedure Code “
Judicial Quandary on ‘Police Officers’ Under Section 25 IEA and Special Statutes
-Aarushi Jain Recently, the apex court in Tofan singh v. State of Tamil Nadu held that the horizons of Section 25 of the Indian Evidence Act, 1872 (hereinafter 'IEA') extend to the statements recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter 'NDPS Act'). The definition of 'police officer' under … Continue reading Judicial Quandary on ‘Police Officers’ Under Section 25 IEA and Special Statutes
Procedure in the Trial of Counter/Cross cases
-Nehaol Sri L V Two criminal cases with conflicting versions arising out of the same incident are called as counter or cross-cases These cases represent opposing views of the same incident happening at the same time and space, and are usually seen at the level of trial courts. There is no standard definition or procedure … Continue reading Procedure in the Trial of Counter/Cross cases
On the Bombay High Court granting bail to the Kochhars
-Abhinav Sekhri The Bombay High Court has re-affirmed the most elementary legal position — the mere power to do something does not act as a justification for doing it. That its order of 09.01.2023 directing the release of Deepak Kochhar and Chanda Kochhar by granting them interim bail on this very premise has generated such a buzz … Continue reading On the Bombay High Court granting bail to the Kochhars
CHALLENGING THE LEGALITY OF REMISSION IN BILKIS BANO CASE
- Anushka Satya and Nishant Kumar In 2019, the Supreme Court judge bench of the then Chief Justice of India, Justice Ranjan Gogoi, and Justices Deepak Gupta and Sanjiv Khanna, has observed that “It is very apparent that what should not have happened has happened and the state has to give compensation”. This statement is remarkable because a … Continue reading CHALLENGING THE LEGALITY OF REMISSION IN BILKIS BANO CASE
A Cross-Country Caper and Constitutional Criminal Procedure
-Abhinav Sekhri "He was a humble man who shunned publicity and lived a quiet life. He was born in Cologne, Germany ... [and] came to America as an immigrant with a middle school education. ... He bought his first building in Los Angeles when he was 21, an endeavour that bloomed into a real estate … Continue reading A Cross-Country Caper and Constitutional Criminal Procedure
Evaluating Externment: Does the Anachronistic ‘Exile’ Continue to be an Effective Practice?
-Avanti Deshpande Introduction In January 2022, a Division Bench of the Supreme Court set aside an order of externment against a man from Maharashtra who had been externed from the Jalna district for a period of two years, holding that, an order of externment was not an ordinary measure, but an extraordinary one, and it … Continue reading Evaluating Externment: Does the Anachronistic ‘Exile’ Continue to be an Effective Practice?
Circumstantial Evidence as a Mitigating Factor
- Nidhi Agrawal Sec. 354(3) of the Code of Criminal Procedure in 1973 introduced the requirement of courts to record “special reasons: for their choice of the death penalty or life imprisonment or imprisonment for a period of time if the offence provided for alternative offences. Rajendra Prasad v. State of Uttar Pradesh provided the first interpretation of “Special Reasons” … Continue reading Circumstantial Evidence as a Mitigating Factor
Interpreting Sanction for Prosecution under UAPA in the light of GN Saibaba verdict
-Devvrat Singh and Nishita Gupta Introduction The Supreme Court recently stayed an order of the Bombay High Court discharging Professor G.N. Saibaba in an alleged Maoist links case under the UAPA (Unlawful Activities Prevention Act). The effect of the order was that professor Saibaba who happens to be wheelchair bound and suffering from 90% disability … Continue reading Interpreting Sanction for Prosecution under UAPA in the light of GN Saibaba verdict
Restricting Anticipatory Bail under the Atrocities Act
-Saranya Ravindran Section 438 of the Code of Criminal Procedure [CrPC] empowers the Sessions Court and the High Court to grant anticipatory bail, i.e., the direction to release a person on bail in the event of an arrest on a non-bailable offense. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities … Continue reading Restricting Anticipatory Bail under the Atrocities Act
Addressing the Right of Female Prisoners (to Bleed): Menstrual Management Behind the Bars
-Ms. Lovleen Sharrma & Sakshi Komal Dubey Introduction As per the Prison Statistics India Report, 2021 the figure of prison inmates in women’s jails adds up to 3,808. The Women In Prison Report, 2018 which sought to study the condition of women prisoners highlighted that the prison population increased drastically, and had therefore created challenges … Continue reading Addressing the Right of Female Prisoners (to Bleed): Menstrual Management Behind the Bars
The Mens Rea of Fraud: Lessons from the Great White North
-By Shreyas Sinha Introduction The Latin term ‘mens rea’ refers to the mental element of a criminal act, i.e., a legally-determined state of mind required to convict an individual of a criminal offence. A person can be said to possess the requisite mens rea vis-à-vis a criminal offence when – (1) they are aware that … Continue reading The Mens Rea of Fraud: Lessons from the Great White North
Taking a Closer Look at the Criminal Procedure Identification Act & Rules
~By Abhinav Sekhri The Criminal Procedure Identification Act, 2002 ["CPIA"] was passed this April amidst significant criticism [see, for instance, here, here and here]. The issues identified with this law were across a wide spectrum — the attack on the right to privacy, the uncertain status of the forensic 'science' at play, the lack of clarity in terms of implementation. Some … Continue reading Taking a Closer Look at the Criminal Procedure Identification Act & Rules
Evaluating the Judicial Interpretation of Section 102(3) of Cr.P.C
~By Mansi Pandey Introduction Section 102 of the Criminal Procedure Code (hereinafter referred to as ‘Cr.P.C.’ or the ‘code’), deals with the power of the police officers to seize “any property” that is either stolen or creates a suspicion of commission of the offense. Further, the police shall report the seizure to the Magistrate forthwith. It … Continue reading Evaluating the Judicial Interpretation of Section 102(3) of Cr.P.C
Preserving the silence: Different spheres of Section 313 CrPC and Article 20(3) of the Indian Constitution
~By Pragun Goyal Introduction Section 313 of the Criminal Procedure Code, 1973 (“CrPC”) has a profane silhouette around it. After the prosecution has closed its evidence, the accused is given an opportunity to explain the incriminating matter in evidence against him or her. No matter how bleak or scanty the prosecution evidence is, the court has to provide an opportunity … Continue reading Preserving the silence: Different spheres of Section 313 CrPC and Article 20(3) of the Indian Constitution
Bail under PMLA: Comprehending the SC’s Imprimatur in Vijay Madanlal Choudhary vs UOI
~By Devvrat Singh and Nishita Gupta Introduction The Prevention of Money Laundering Act (hereinafter referred to as PMLA) was enacted in 2002 and since then it has undergone several amendments. The stated object of PMLA was to combat money-laundering activities and confiscate the properties involved in or connected to the act of money laundering. Several … Continue reading Bail under PMLA: Comprehending the SC’s Imprimatur in Vijay Madanlal Choudhary vs UOI
Time for a Seven-Judge Bench Reference to resolve the FIR conundrum?
~By Abhinav Sekhri On 12.08.2022, the Supreme Court in XYZ v. State of Madhya Pradesh & Ors. [Crl. Appeal No. 1184 of 2022] set aside an order of the Madhya Pradesh High Court, and directed that a First Information Report ["FIR"] ought to be registered under Section 154 of the Criminal Procedure Code, 1973 ["Cr.P.C.'] by the local police on the … Continue reading Time for a Seven-Judge Bench Reference to resolve the FIR conundrum?
Old Wine in New Bottles? – The Judgement in Vijay Madanlal Choudhary (Part Two)
~By Abhinav Sekhri The previous post in this two-part series considered how the Supreme Court's judgment in Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. [SLP Crl. No. 4364 of 2014; Judgment dated 27.07.2022 ("Vijay Madanlal Choudhary") dealt with the offence of money laundering under the Prevention of Money Laundering Act 2002 ["PMLA"]. This post turns its lens to how the judgment … Continue reading Old Wine in New Bottles? – The Judgement in Vijay Madanlal Choudhary (Part Two)
Reverse Burden of Proof and its Implications on Presumption of Innocence
~By Pragun Goyal The presumption of innocence of the accused is an esteemed 'golden thread’ in the criminal jurisprudence which is fundamentally tied to a reputation-related aspect of the accused in the criminal trial. The raisons d'être of this aspect is that no one can impute guilt to the accused before he is convicted beyond … Continue reading Reverse Burden of Proof and its Implications on Presumption of Innocence
Of Old Wine in New Bottles – The Judgement in Vijay Madanlal Choudhary (Part One)
~By Abhinav Sekhri After marathon hearings, the Supreme Court finally pronounced its judgment on 27.07.2022 in a batch of over 200 petitions where the legality of various provisions under the Prevention of Money Laundering Act, 2002 ["PMLA"] had been challenged. This judgment — bearing the title Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. [SLP Crl No. 4364 … Continue reading Of Old Wine in New Bottles – The Judgement in Vijay Madanlal Choudhary (Part One)
Prakash Industries and Interpreting the PMLA
~By Abhinav Sekhri The Delhi High Court has passed a detailed judgment in the matters of Hi-Tech Mercantile and Prakash Industries [Order dated 19.07.2022 in WP(C) No. 14999 of 2021 ("Prakash Industries"], touching on issues pertaining to the Prevention of Money Laundering Act 2002 [“PMLA”]. Holding in favour of the Petitioners and terminating the PMLA proceedings, the High Court … Continue reading Prakash Industries and Interpreting the PMLA
The Most Recent Clarifications to the Supreme Court Bail Guidelines
~By Abhinav Sekhri On July 11, 2022, the most recent clarifications were issued by the Supreme Court in respect of the bail guidelines which it had first issued in October, 2021 [MA No. 1849 of 2021 in SLP (Crl) 5191 of 2021, titled 'Satender Kumar Antil v. CBI' (Order dated 11.07.2022)]. This blog had covered the guidelines in October, … Continue reading The Most Recent Clarifications to the Supreme Court Bail Guidelines
8 years since “Arnesh Kumar Guidelines” what has changed ?
- Prakhar Bajpai Arnesh Kumar serves to be the landmark judgement in the judicial history of India. The Supreme Court in this judgment made it clear that police must follow the “investigate first and then arrest” doctrine in the cases that are registered under section 498-A. The offence registered under Section 498-A of Indian Penal … Continue reading 8 years since “Arnesh Kumar Guidelines” what has changed ?
Predictive policing: A criminal justice tool that threatens human rights
-By Sahajveer Baweja Predictive policing is an application/tool that is supported by artificial intelligence technology. These tools are currently used by investigation wings and law and order agencies in many nations to curb the crime from taking place. Such applications work on the concept of using sets of data quantities which are processed by analytical … Continue reading Predictive policing: A criminal justice tool that threatens human rights
Identity Hunt: The Criminal Procedure (Identification) Act Needed more debate
By Kartik Shrivastava Introduction On 18th April this year, the President of India gave his assent to the contentious Criminal Procedure (Identification) Act, 2022. The Act was passed in both the Houses of Parliament on 6th April by a voice vote. The Act seeks to replace the 102-year-old colonial law on collecting "measurements" of the … Continue reading Identity Hunt: The Criminal Procedure (Identification) Act Needed more debate
Returning to Barendra Kumar Ghosh – Part 2
By Niharika Mukherjee Assessment of Common Intention under Section 34 In its previous part, this article traced the development of the law, following the Privy Council’s decision in Barendra Kumar Ghosh v King Emperor, on the nature of participation required to hold an individual liable under Section 34 of the Indian Penal Code 1860 [IPC]. … Continue reading Returning to Barendra Kumar Ghosh – Part 2
Returning to Barendra Kumar Ghosh- The Group Liability Conundrum (Part 1)
By- Niharika Mukherjee (This article forms the first part of a two part series) Introduction This article shall review the case of Barendra Kumar Ghosh v King Emperor, with a focus on its interpretation and application of Section 34 of the Indian Penal Code, 1860 [“IPC"]. In this part, the article shall, first, shall briefly … Continue reading Returning to Barendra Kumar Ghosh- The Group Liability Conundrum (Part 1)
Rethinking our Perspectives to Criminal Obscenity- From Moralism to Harm Principle
By Vidhi Srivastava Introduction Legal Moralism is a criminalisation theory that advocates employing criminal law to penalise immorality per se and ‘wrong’ conducts, irrespective of whether they adversely affect others. In India, ‘obscenity’ has been viewed from the lens of morality and decency. The law is embodied in s. 292 of the IPC. This provision … Continue reading Rethinking our Perspectives to Criminal Obscenity- From Moralism to Harm Principle
Marital Rape through the lens of Judicial Activism in India
By Srushti S Kekre & Udisha Surana A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife” -Justice M. Nagaprasanna The prevalence of marital rape in India emanates from the archaic doctrine of coverture where a wife is considered as … Continue reading Marital Rape through the lens of Judicial Activism in India
On Section 91 Notices and the Razorpay Furore
By: Abhinav Sekri Razorpay, a payments platform, got a request under Section 91 of the Criminal Procedure Code 1973 [Cr.P.C.] from Delhi Police asking it to furnish information in connection with an ongoing investigation in connection with the journalist Mohammad Zubair and the fact-checking platform Alt News. From news reports and public statements made by parties concerned, it appears … Continue reading On Section 91 Notices and the Razorpay Furore
Possession Offences: Of Strict Liability and The Indian Judiciary’s Take
By: Kajal Jamdare Introduction The recent flux of headlines about celebrities and star kids being found in possession of drugs prohibited by law has brought the issue of possession offences to limelight in India. Another, often ignored case of possession offences in India is the detention of individuals for possession of fire-arms and ammunitions. Many … Continue reading Possession Offences: Of Strict Liability and The Indian Judiciary’s Take
Comparing the Procedure of CrPC with PMLA
By: Aryaman Kapoor Introduction The Code of Criminal Procedure of 1973 [‘CrPC’] is applicable to the whole of India for investigation, inquiry and trial of every offence which is committed under the Indian Penal Code and most statutes which regulate offences that are criminal in nature. However, when it comes to the offence of money … Continue reading Comparing the Procedure of CrPC with PMLA
The “Presence of the Accused” Requirement under Section 34 of the IPC: An Analysis
By: Ria Goyal Introduction The Indian Penal Code (hereinafter referred to as “IPC” or “the Code”) contains several provisions imposing joint or constructing liability upon members of groups for criminal acts committed in furtherance of common intention. These sections do not create any distinctive offences – rather, they act as evidentiary principles rendering every person … Continue reading The “Presence of the Accused” Requirement under Section 34 of the IPC: An Analysis
Why the Delhi High Court is Wrong to Deny Satyendar Jain his Right to Counsel
By Abhinav Sekhri It appears that by an interim order passed on 03.06.2022, the Delhi High Court has stayed operation of a portion of an order passed by the Trial Court whereby it had directed that Satyendar Kumar Jain, who has been arrested by officers of the Enforcement Directorate and remanded to their custody for ten … Continue reading Why the Delhi High Court is Wrong to Deny Satyendar Jain his Right to Counsel
Resolving corporate successor liability through substantial continuity
By: Shailendra Shukla Introduction The 21st century has seen a meteoric rise in the commission of white-collar crimes, which can be attributed to the rapid pace of technological advancement. Now, money can be transferred to any part of the world in seconds. Additionally, there is increased interconnectivity across the globe, which gives miscreants access to … Continue reading Resolving corporate successor liability through substantial continuity
Extending Privileged Communication to Live-in Partners: Protecting Mutual Trust
By: Saumya Shankar & Pratik Rath Section 122 of The Indian Evidence Act states that spouses shall not be allowed to reveal any communication between them, except with the consent of the other. The bar is not just limited to communications of a confidential character rather, the provision is applicable to all communications between the … Continue reading Extending Privileged Communication to Live-in Partners: Protecting Mutual Trust
Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra?
By Abhinav Sekhri In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) ("Ashish Mishra")]. At the outset, it would be necessary to clarify that the court … Continue reading Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra?
Criminal Procedure (Identification) Bill 2022: A Necessary Evil?
By Nishant Kumar INTRODUCTION The Criminal Procedure (Identification) Bill, 2022 got the approval of the President on April 18, 2022. The bill replaces The Identification of Prisoners Act, 1920 which allows the collection of identifiable information like fingerprints, footprints from the convicts. The primary motive cited behind the introduction of the bill is to increase … Continue reading Criminal Procedure (Identification) Bill 2022: A Necessary Evil?
Plea Bargaining: A Comparison Between USA And India
By: Aditi Roy & Sanjana Gupta I. Introduction Indian courts are bludgeoned under the growing number of criminal cases. The chronic delay in disposing of the cases has led to prisons filled with prisoners who are incarcerated without undergoing a trial. It was in response to this dismal status quo of the justice system that … Continue reading Plea Bargaining: A Comparison Between USA And India
Indefinite Incarceration of Approvers — In Need of Necessary Amendments
-By Abhinav Sekhri Prologue: The Budget Leaks of 1956 Aschara Lal Mehra was, presumably, one of many Sales Managers in Bombay's Mercury Paints and Varnishes Ltd.; a pre-independence firm which continues to exist today. Perhaps Mehra was dissatisfied with the income Mercury Paints gave him, because when he was introduced to one Davinder Pal Chadha from … Continue reading Indefinite Incarceration of Approvers — In Need of Necessary Amendments
Lalita Kumari, and Police Discretion at the Stage of Registering an FIR
By Abhinav Sekhri Six year old Lalita Kumari went missing from near her house on the night of May 5, 2008. When she did not come back, her father filed a missing persons report. A week later he was told that his daughter had been abducted, and so he filed a complaint with Police Station … Continue reading Lalita Kumari, and Police Discretion at the Stage of Registering an FIR
Errantry — Further thoughts on the new Criminal Procedure (Identification) Act
By: Abhinav Sekhri As expected (mostly), parliament passed the Criminal Procedure (Identification) Bill 2022 in double quick time without referring the bill to a committee. It is disheartening, given the obvious flaws that are present in the Bill, but in an environment where courts are unable to hear matters pertaining to important matters of constitutional law … Continue reading Errantry — Further thoughts on the new Criminal Procedure (Identification) Act
A Peculiar Problem Posed by the J&K Reorganisation?
By: Aman Saraf The legal framework regulating Jammu and Kashmir can in recent terms be adequately referred to as protean and erratic – and for good reason. Post the Constitutional Order 273 passed by the President declaring that Article 370 of the Constitution of India ceased to be operative (barring the applicability of the Constitutional provisions to … Continue reading A Peculiar Problem Posed by the J&K Reorganisation?
Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra
By: Abhinav Sekhri In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) ("Ashish Mishra")]. At the outset, it would be necessary to clarify that the court … Continue reading Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra
THE SUDDEN FIGHT EXCEPTION: AN ANATHEMA TO CRIMINAL LAW?
By: Hritik Merchant (This article is a Part I of the submission.) I. Introduction Exception 4 to Section 300 of the Indian Penal Code, 1860 (“IPC”) posits that if a person dies in a sudden fight with the accused, the accused’s culpability will be reduced to culpable homicide not amounting to murder (“the sudden fight … Continue reading THE SUDDEN FIGHT EXCEPTION: AN ANATHEMA TO CRIMINAL LAW?
Setting the paper tiger free – Bail provisions and UAPA
-Sanjana Gupta & Aditi Roy Introduction Bail can be termed as the procurement of a person’s release from legal custody through an undertaking that one shall remain present at the designated time and place and submit himself to the Court. Bail can be denied only in exceptional circumstances and has to be given as a … Continue reading Setting the paper tiger free – Bail provisions and UAPA
PRACTICE OF WITCH HUNT IN INDIA: FALLACIES IN STATUTES AND EXIGENCY FOR A CENTRAL LEGISLATION (GENDER-BASED VIOLENCE)￼￼
By: Aditi Pandey INTRODUCTION Women as individuals have been victimized in various manners including gender-based violence which is solely justified as culture. Whereas, it is nothing but the supremacy of men over women through established “patriarchy” in the society. As a result, there exists tremendous trauma to women both on physical and psychological levels. According … Continue reading PRACTICE OF WITCH HUNT IN INDIA: FALLACIES IN STATUTES AND EXIGENCY FOR A CENTRAL LEGISLATION (GENDER-BASED VIOLENCE)￼￼
Envisioning admissibility of wearable devices in Indian Courts
Rishabh Saumya and Gayatri Singh Introduction The leap of technology from our desk to our wrist is quite remarkable. From measuring our heartbeat to calculating our footsteps, wearable devices, gradually, are becoming an essential fitness accessory among health-conscious folks. These activity tracking devices are equipped with wearable technology and are marketed for their health tracking … Continue reading Envisioning admissibility of wearable devices in Indian Courts
Prosecutorial fair disclosure – A concept conveniently swept under the carpet?
By: Chaitanya M. Hegde Introduction Recently, when the process of framing charges had begun in the Elgar Parishad case, the accused filed a plea before the Bombay High court seeking stay of the trial as certain vital materials relied by the NIA was not provided to them. This once again has shed the light on … Continue reading Prosecutorial fair disclosure – A concept conveniently swept under the carpet?
Whether Apprehension of death on account of COVID a valid ground for anticipatory bail?
By: Srishti Gupta Introduction Recently, the courts have been adapting to new set of circumstances and leaning towards bail to decongest prisons. Due to COVID-19 outbreaks in detention centers, courts are rethinking whether pre-trial custody is necessary to maintain public confidence in the criminal justice system. In a recent Allahabad High Court order, anticipatory bail … Continue reading Whether Apprehension of death on account of COVID a valid ground for anticipatory bail?
Cyber-crime and Bulli Bai App:
Where do we draw the line? Priyanshi Jain & Preeti Bohra Introduction India’s internet user population is increasing tremendously. However, the gender imbalance on the internet is an ever-existing challenge. Patriarchy operates consistently when a woman often comes across as invading a man’s cyberspace, primarily when they express their views on politically sensitive issues. At … Continue reading Cyber-crime and Bulli Bai App:
RECONSIDERING THE CASE OF NEHA V. VIBHOR GARG
By Aayushi Swaroop Introduction In Neha v. Vibhor Garg, a divorce petition was filed pursuant to which the husband produced the telephonic conversation of the wife to establish the case of cruelty by the wife. To this, the High Court stated that the same is an infringement of the right to privacy of the wife … Continue reading RECONSIDERING THE CASE OF NEHA V. VIBHOR GARG
TRANS RIGHTS AGAINST SEXUAL OFFENCES IN INDIA: IS PROTECTION FROM RAPE STILL A FAR CRY?￼
By: Aprajita Tyagi Though the existence and acceptance of transgender persons have long been recorded in ancient Indian texts, the recognition of their legal rights is a recent occurrence in the country. It was only in 2019 that the Indian Parliament enacted the nation’s first legislation, namely the Transgender Persons (Protection of Rights) Act, 2019 … Continue reading TRANS RIGHTS AGAINST SEXUAL OFFENCES IN INDIA: IS PROTECTION FROM RAPE STILL A FAR CRY?￼
Zero FIR: purview, analysis and propositions
By: Ridhi Aggarwal and Vedant Bisht Although the term First Information Report (“FIR”) hasn’t been explicitly mentioned in the Code of Criminal Procedure, 1973 ("CrPC”), S.154 of CrPC provides for the process of registering the information relating to the commission of a cognizable offence. The concept of Zero FIR eliminates the barriers of territorial jurisdiction … Continue reading Zero FIR: purview, analysis and propositions
Stand-Up Comics & The Imbroglio of Criminal Complaints
By Arundhati Rajput Introduction Vir Das, an Indian Stand-up comic, has yet again become the center of vehement criticism as his monologue: ‘The Story of Two Indias’, has stirred opposing sentiments. In this monologue, the comic portrayed India in a sagacious manner having an undertone of satire. However, several lawyers and political leaders felt that … Continue reading Stand-Up Comics & The Imbroglio of Criminal Complaints
The crime of possessing or viewing child pornography: Cannot always agree on who is harmed?￼
By: Martin Kwan John Stuart Mill’s harm principle is one of the most common justifications for the criminalization of a certain conduct. In simple terms, the principle provides that acts that cause harm to others should be criminalized. Naturally, the aim of the offences involving child pornography would be to prevent harm to children – … Continue reading The crime of possessing or viewing child pornography: Cannot always agree on who is harmed?￼
Why we need to strengthen Child Welfare Committees
By: Ann Sarasa K R India’s devastating second wave has wreaked havoc on lakhs of people across the country, and the statistics are disheartening. In an affidavit submitted to the Supreme Court, the National Commission for Protection of Child Rights (NCPCR) showed that over 30,000 children lost either one or both parents or were abandoned … Continue reading Why we need to strengthen Child Welfare Committees
TAKING BACK JUSTICE: A CRITICAL APPRAISAL OF SECTION 321 OF THE CRIMINAL PROCEDURE CODE
By: Milind Malhar Sharma INTRODUCTION Public Prosecutors play important roles like representing the state and are charged with proving the guilt of the accused in the criminal justice system.. This points us towards an interesting set of questions – should public prosecutors be allowed to withdraw criminal cases from prosecution leading to potential criminals not … Continue reading TAKING BACK JUSTICE: A CRITICAL APPRAISAL OF SECTION 321 OF THE CRIMINAL PROCEDURE CODE
Major Bank Frauds: A Need For A Rethink Of ‘Offences Against Property’ In The Indian Penal Code
By: Meghana Senthil Introduction India has witnessed multiple major bank frauds over the course of the last decade. As per the Annual Report of the Reserve Bank of India (“RBI”), the reported bank fraud cases have increased by 159% in value during the fiscal year of 2019-2020. The increased complexity and costs involved in them … Continue reading Major Bank Frauds: A Need For A Rethink Of ‘Offences Against Property’ In The Indian Penal Code
An Analysis of Mitesh Ashokbhai Chunavala v. State of Gujrat – using Section 482 as a Backdoor for Reinforcing Patriarchal Norms in Rape Trials
By: Shivani Mody Introduction The Chief Justice of India, while hearing the case of Mohit Subhash Chavan v. State of Maharashtra, asked a rape accused to marry the victim in order to potentially reduce punishment for the offence, which resulted in widespread backlash and condemnation. However, the truth is that such deliberations are not new … Continue reading An Analysis of Mitesh Ashokbhai Chunavala v. State of Gujrat – using Section 482 as a Backdoor for Reinforcing Patriarchal Norms in Rape Trials
CCTVs Cameras in Police Stations: A Comprehensive Step to deter Custodial Violence?￼
By: Nishant Nagori ‘Panopticism’, one of Foucault’s most intriguing concepts on surveillance is premised upon the Panopticon, a prison where guards are positioned within a central tower to employ surveillance on all the inmates. This creates a conscious sense of ‘permanent visibility’ amongst the ones under surveillance, eventually leading to internalized authority and self-discipline. This … Continue reading CCTVs Cameras in Police Stations: A Comprehensive Step to deter Custodial Violence?￼
Consent in Section 375 is Superior to Consent in Section 90
By: Manas Agarwal and Ritu Bhatiya Introductory Remarks The absence of consent is a sine qua non element of the offence of rape involving people above the age of 18. This paper focuses on one such category of consent, which is consent based on the promise of marriage. Two provisions of the Indian Penal Code … Continue reading Consent in Section 375 is Superior to Consent in Section 90
Conspiracy: The Substantive Offence (Part I)
By: Abhinav Sekhri [This article is a second part of a conspiracy series.] Over the next two posts, we will discuss the substantive offence of conspiracy. We will first try and identify what purpose is this offence of conspiracy designed to serve, its costs and benefits, and only then turn to the Indian statutory provisions … Continue reading Conspiracy: The Substantive Offence (Part I)
“The Unscrupulous”: Invariably and Unalterably Criminals? (Part II)
-By Akanksha Singh [The article is the 2nd part of a two-part series] Not all psychopaths are criminals/serial killers If we again consider the example of the above mentioned fictional characters of Sheldon Cooper and Villanelle, for anyone who has watched the shows, it is evident that Sheldon Cooper is far from engaging in any … Continue reading “The Unscrupulous”: Invariably and Unalterably Criminals? (Part II)
Conspiracy: Introducing the series
-By Abhinav Sekhri [The article is the first part of a conspiracy series] It would not be an overstatement to suggest that the idea of conspiracies has come to underpin almost all prosecutions where more than one person is accused of an offence, be it a blockbuster case (Elgar Parishad, Delhi Riots, Kerala Gold Smuggling, … Continue reading Conspiracy: Introducing the series
“The Unscrupulous”: Invariably and Unalterably Criminals?
-By Akanksha Singh [The article is the first part of a two part series] Theophrastus, one of Aristotle’s disciples, was probably the first person to ever write about psychopaths, calling them ‘the unscrupulous’, which precisely translates to ‘someone having or showing no moral principles; not honest or fair’. These people lack the ordinary connections that … Continue reading “The Unscrupulous”: Invariably and Unalterably Criminals?
Violation of Principles of Fair Trial in Rape Cases – Part 2
By: Bipasha Kundu [This article is the second part of a two- part series.] II. “Instant Justice” meted out in the Disha Rape Case is no Justice at all Another horrifying incident that shocked the nation was the Disha rape case. A 26year old veterinary doctor in Shamshabad, Telangana, was brutally raped by four men … Continue reading Violation of Principles of Fair Trial in Rape Cases – Part 2
Violation of Principles of Fair Trial in Rape Cases – Part I
By: Bipasha Kundu [This article is a part one of the two part series] Abstract Rape is one of the most heinous offences; unfortunately, the principles of fair trial are violated in such cases due to various factors. The occurrence of such cases leads to enormous public outrage. Such outrage often finds its way into … Continue reading Violation of Principles of Fair Trial in Rape Cases – Part I
WHAT IS THE EXTENT OF PROSECUTORIAL IMMUNITY ACCORDED TO JUDGES & PUBLIC SERVANTS? ANALYSIS OF SECTION 197, CrPC.
-By Devansh Pandit INTRODUCTION: Complete or partial immunity from lawsuits accorded to the members of judiciary or those exercising powers on behalf of the state, is not a novel concept. For example, no civil or criminal cases lie against the British Crown, or those exercising powers on their behalf; The United States itself accords prosecutorial … Continue reading WHAT IS THE EXTENT OF PROSECUTORIAL IMMUNITY ACCORDED TO JUDGES & PUBLIC SERVANTS? ANALYSIS OF SECTION 197, CrPC.
SIDDHARTH V. STATE OF U.P. – Doing away with unnecessary custody
By: Kapil Devnani and Ashutosh Kumar Introduction “I would like to be remembered as a person who wanted to be free and wanted other people to be also free.” This famous quote by Rosa Parks presents the true value of the Right to liberty, and it would not be wrong to say that the framers … Continue reading SIDDHARTH V. STATE OF U.P. – Doing away with unnecessary custody
The New Supreme Court “Guidelines” on Bail
By: Abhinav Sekhri It is fairly well known that under the Criminal Procedure Code 1973 [Cr.P.C.], the investigating agency files a Report before court upon completing an investigation, sharing the finding of its investigation [Section 173]. What is not so well known is that, at this stage, if police concludes that there is sufficient evidence … Continue reading The New Supreme Court “Guidelines” on Bail
Bridging the Gap: Analysing Section 311 of the Criminal Procedure Code
-By Varda Saxena Introduction India is an example of an adversarial system of law. However, there are instances when the Magistrate steps up to assist the course of justice. The powers under Section 311 of the Criminal Procedure Code, 1973 ("CrPC"), which complement Section 165 of the Evidence Act, 1872 (“Evidence Act”) is a sound … Continue reading Bridging the Gap: Analysing Section 311 of the Criminal Procedure Code
SECTION 295A AND ITS ARBITRARINESS
By-Aditi Gupta Introduction “In October 2020, a Malayalam journalist named Siddique Kappan was charged under sections 124A (sedition), 153A (for promoting enmity between groups), and 295A (outraging religious feelings) of the IPC and UAPA. He was detained while on his way to cover the Hathras event in Uttar Pradesh.” This detention raises questions in a … Continue reading SECTION 295A AND ITS ARBITRARINESS
The conundrum of ‘Necrophilia’ in India: Broadening the sphere of punishment is demanded.
- Rohan Mishra INTRODUCTORY REMARK - NECROPHILIA Ever since the Indian Penal Code, 1860 (hereinafter, “IPC”) came into play it has been celebrated widely as a great piece of penal legislation by positively testifying as the balance wheel of the society containing in itself a rich lode of progressive laws as per the growing … Continue reading The conundrum of ‘Necrophilia’ in India: Broadening the sphere of punishment is demanded.
ALEXA: A CATALYST IN THE EVIDENCE LAW?
By: Rishabh Saumya “Alexa raise your hand”. The problem is Alexa has no hands or any other human feature. We know Alexa- that’s the name used by Amazon for its virtual personal assistant, most frequently invoked on its echo in-home smart speaker. It may not have a face but the program can be treated as … Continue reading ALEXA: A CATALYST IN THE EVIDENCE LAW?
GUJARAT CONTROL OF TERRORISM AND ORGANISED CRIME ACT: A PROCRUSTES SOLUTION
-By Darshil Sakhia and Pratham Shah Introduction In September 2020, a petition was filed in the Gujarat High Court (“Gujarat HC”) challenging the constitutionality of sections 2(1) (c), 16, 20(3), 20(4) and 20(5) of the Gujarat Control of Terrorism and Organized Crime Act, 2015 (“Act”). While the case is still being heard in the Gujarat … Continue reading GUJARAT CONTROL OF TERRORISM AND ORGANISED CRIME ACT: A PROCRUSTES SOLUTION
Bail under CrPC v. Bail under UAPA: A Critical Analysis
-By Renuka Nevgi The term ‘bail’ essentially means procurement of release of an accused awaiting trial or appeal by the deposition of security as an assurance for his/her submission whenever demanded by legal authority. The application for bail can be approved or rejected on various grounds such as nature of the offence, severity of punishment, … Continue reading Bail under CrPC v. Bail under UAPA: A Critical Analysis
Discrimination through the Tinted Glass: VIP Culture and its Manifestation
By: Injila Khan and Utkarsh Mishra Abstract – “The current political situation in the country with the right-wing government and a complex set of relations between the state and the centre has given us a cause to revisit the realms of the VIP culture that has pervaded our governments and bureaucracy since the colonial era. … Continue reading Discrimination through the Tinted Glass: VIP Culture and its Manifestation
AWARDING CUSTODIAL CONFESSIONS WITH EVIDENTIARY VALUE: A TIME TO MAKE REFORMS?
By: Shambhavi Shani INTRODUCTION Confession made by a suspect, being decisive in nature plays a significant role when criminal proceedings are pursued. Confession, simply put, is an acknowledgment of guilt by accused which is traced back, in various common law countries, to the guilt conscience associated with it. Being conclusive, it is of utmost importance … Continue reading AWARDING CUSTODIAL CONFESSIONS WITH EVIDENTIARY VALUE: A TIME TO MAKE REFORMS?
MARITAL RAPE: REDIFINING SOCIETAL NORMS AND CONSENT BOUNDARIES IN MARRIAGE
By: Harsh Sethi INTRODUCTION Marital rape is defined as the non-consensual sexual intercourse in a marital relationship with one’s own spouse. The act, often justified for reasons of the ‘implied consent of the spouse’, not only violates the sexual freedom of the wife but also undermines her dignity and self esteem. Nonetheless, marital rape remains … Continue reading MARITAL RAPE: REDIFINING SOCIETAL NORMS AND CONSENT BOUNDARIES IN MARRIAGE
Criminalising “Stealing the Affection of a Brother Officer’s Wife”: A Comparative Analysis with reference to the USA and South Africa
By- Digvijay Sahni Introduction Decriminalising adultery and viewing it from outside the realm of criminal jurisprudence, was one of the landmark judgments that was rendered by the Supreme Court in 2018. The abrogation of the long-standing English provision in the IPC 1860 was seen as a step in the positive direction for which civil remedy … Continue reading Criminalising “Stealing the Affection of a Brother Officer’s Wife”: A Comparative Analysis with reference to the USA and South Africa
ECOCIDE: CHANGING THE LEGAL REALITY AND CULTURAL MINDEST
By- Swetha Somu On March 18, 2021, the French MPs approved to make ‘ecocide’ a serious crime under French law. The draft legislation passed the National Assembly by 44 votes to 10. Under the law, anyone intentionally causing pollution to land, water or soil will be liable for up to 10 years in prison along … Continue reading ECOCIDE: CHANGING THE LEGAL REALITY AND CULTURAL MINDEST
Rendering Criminal Law Meaningless: On the Draconian Telangana Preventive Detention Law
-By Abinav Sekhri In 2017, the Telangana government passed a Bill to ratify and ordinance which had made the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act 1986", into the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, … Continue reading Rendering Criminal Law Meaningless: On the Draconian Telangana Preventive Detention Law
Protection of Women from Harassment at Workplace: A Mirror Reflection of the Vishakha Judgment
-By Vidhik Kumar Introduction The status of women in our society can only be uplifted when we as a community tread towards the path of social justice, equality, and dignity- and provide women, without any discrimination, equal opportunities in every sphere of life. India has adopted several legislations for uplifting women in the social sphere, … Continue reading Protection of Women from Harassment at Workplace: A Mirror Reflection of the Vishakha Judgment
Social Media – A Breeding Ground for Juvenile Offenders
-By Yana Gupta and Ayush Mangal Social Media may either act as a bane or a boon for society and individuals. However, sometimes its cost outweighs its benefits, especially for juveniles. The access to electronic gadgets for long durations has opened floodgates of opportunities for juveniles to get inspired from the content on social media … Continue reading Social Media – A Breeding Ground for Juvenile Offenders
In ‘Furtherance’ of Substituting Criminal Conspiracy
-By Sarthak Wadhwa (This article is the second part of a two part series) Introduction In a recent two-part post on this blog, Shraddha and Yana present a comprehensive account of how colonial era laws are weaponized to ‘crackdown on dissent’ – and how the detention of Safoora Zargar and Disha Ravi for sundry charges … Continue reading In ‘Furtherance’ of Substituting Criminal Conspiracy
Crackdown on Dissent: A Conspiratorial Approach
~Sarthak Wadhwa (This article is the first part of a two-part series) Introduction In a recent two-part post on this blog, Shraddha and Yana present a comprehensive account of how colonial era laws are weaponized to ‘crackdown on dissent’ – against the ideals of democracy and criminal justice as found in the Indian Constitution and … Continue reading Crackdown on Dissent: A Conspiratorial Approach
Section 295A and Harm-Offence Debate
-By Kirti Meena and Sandli Pawar Introduction Section 295A of the Indian Penal Code, 1860 has become a catchword in the context of any real or reel issue related to hurting religious sentiment. Section 295A criminalises any deliberate or malicious act intended to offend the religious sentiment of any class of people. The Section mandates … Continue reading Section 295A and Harm-Offence Debate
The Abuse of Parole and Furlough – An Analysis
-By Mannat Marwah Introduction Parole or furlough is the temporary release of a prisoner before they have completed their sentence, on a conditional basis. Rules relating to parole and furlough are enshrined under the Prison Act, 1894 and the Prisoner Act, 1900. Each state has its own rules governing parole and furlough with only minor … Continue reading The Abuse of Parole and Furlough – An Analysis
Reverse onus of proof: An incongruity in UAPA
-Himanshu Mishra In all countries, the laws to prevent unlawful activities that may cause harm to the sovereignty and integrity of a nation are extremely consequential. In India, a law called Unlawful Activities Prevention Act, 1967 [hereinafter, “UAPA”]was enacted for this purpose. In recent times, our country has witnessed a plethora of UAPA cases and … Continue reading Reverse onus of proof: An incongruity in UAPA
The Supreme Court and Delays in Cheque Bouncing Cases
-By Abhinav Sekhri This April, a Constitution Bench of the Indian Supreme Court took up the issue of delays in cheque bouncing cases — i.e., complaints instituted under Section 138 of the Negotiable Instruments Act 1881 — and passed some important directions on how such cases should be run [Order dated 16.04.2021 in Suo Motu Writ Petition (Crl.) 2 … Continue reading The Supreme Court and Delays in Cheque Bouncing Cases
A Closer Look at the 1976 Deletion of Section 438 CrPC in Uttar Pradesh
-By Abhinav Sekhri (Special thanks to Ashna D and Aniket Singh for their help with research on some aspects.) In 2019, the State of Uttar Pradesh amended the Criminal Procedure Code of 1973 insofar as it applied to the state, to re-insert Section 438 (its at the end of the linked file) which provides for anticipatory bail. … Continue reading A Closer Look at the 1976 Deletion of Section 438 CrPC in Uttar Pradesh
Assessing the Quality of Legal Aid: Need for A Uniform Legal Framework
-By Harsh Panwar Introduction Access to legal aid is considered a pertinent issue by the stakeholders in the criminal justice system. However, much of the conversation on legal aid mechanisms have only been centred around access to legal aid to an accused. At the same time, there exists hardly any conversation around guaranteeing the ‘effectiveness’ … Continue reading Assessing the Quality of Legal Aid: Need for A Uniform Legal Framework
Exploring Holocaust Survivors’ Post Liberation Delinquency: An Analysis Through an Unexplored Theory of Neutralization of Crime
-By Sanjeet Aggarwal The Nazi extermination camps of Central Europe, which used to murder over 2.7 million people during the Holocaust, were among the most brutal and barbarous manifestations of human malice and cruelty that anybody could persist through. On detainment by the SS(Schutzstaffel), the prisoners taken in by the Nazi's went through a literal … Continue reading Exploring Holocaust Survivors’ Post Liberation Delinquency: An Analysis Through an Unexplored Theory of Neutralization of Crime
Virendra Khanna v State of Karnataka –Passwords and the Dilution of the Right Against Self-Incrimination
-By Kashish Khandelwal In Riley v California, while holding that an accused cannot be forced by the police to reveal their password, the US Supreme Court observed that owing to the rapid development of technology, the majority of the people “typically carry a cache of sensitive personal information” in their pockets. However, this has also … Continue reading Virendra Khanna v State of Karnataka –Passwords and the Dilution of the Right Against Self-Incrimination
Crackdown on Dissent : A Call for Reform and Action
- By Shraddha and Yana Gupta (This article is the second part of a two-part series) Introduction India is a democratic nation and recognition of dissent remains a sine qua non of a true and a living democracy. However, grave misreading of law coupled with dubious intents on the part of the Indian government has … Continue reading Crackdown on Dissent : A Call for Reform and Action
Weaponizing the Law to Stifle Dissent
-By Shraddha and Yana Gupta (This article is the first part of a two-part series) Introduction In theory India remains a democratic country where its citizen have a constitutional right to speech and expression, but the authors of this article contend that our practice does not match to the high standards set by the democratic … Continue reading Weaponizing the Law to Stifle Dissent
Anticipatory Bail in Offences under CGST Act: A Developing Jurisprudence
-By Nitesh Mishra The Central Goods and Services Act, 2017 (“the Act” or “CGST Act”) ushered in a novel tax regime in India. Section 132 of the Act has prescribed certain offences which attract punishment in accordance with the provisions of the Act. Owing to the recent enactment of the Act, there does not exist … Continue reading Anticipatory Bail in Offences under CGST Act: A Developing Jurisprudence