Some Thoughts after Diving into Prisons Data and Emerging on the Other Side

-By Abhinav Sekhri The National Crime Records Bureau [NCRB] runs the annual Crime in India reports as well as the Prison Statistics India reports. Both get their yearly moment in the sun when, around their publication, news stories with attractive pie charts get published with infographics to show that an unearthly number of cases are pending …

‘Fit State Of Mind’: An Argument for a more Objective Test for Recording Dying Declarations

-By Esha Goyal Section 32(1) of the Indian Evidence Act, 1872 allows for a dying declaration in the form of a statement regarding the cause of the declarant’s death to be made a relevant fact. The criminal rules of practice of each State in India require the declarant to be in a ‘fit state of …

Juxtaposition of IP and Criminal Law

-By Namrata Pahwa Introduction When the products of any brand are authentic and original, it receives a considerable amount of recognition in the minds of its prospective buyer. It is important to preserve the market integrity of any product sold by such brands and that protection is granted by the product-related intellectual property rights, i.e. …

Privileged Evidence under S.123, Yashwant Sinha v. CBI and Beyond?-Part II

-By Sudev Singh This is the second part of a two-part series. In the first part the author throws light on the case of Yashwant Sinha v. Central Bureau of Investigation, more popularly referred to as the Rafale case. An attempt has been made to highlight the importance of this case in the context of …

The Irrationality of Section 27 of the Indian Evidence Act, 1872

-By Anshul Ramesh and Andolan Sarkar Introduction Confessions play an important role while deciding on the future course of action that is required to be taken by the police and also while securing the conviction of the accused. Sections 25 and 26 of the Indian Evidence Act, 1872 (“Evidence Act”) proscribe the admissibility of confessional …

Analysing the exactitude of the acquittal in the Babri-Masjid demolition case

-By Kshitij Goyal and Kunal Gupta Introduction The Ram Janmabhoomi case has become a cause célèbre,a case which has garnered unprecedented public attention. The last part of the controversy got resolved on 30th Sept 2020 when the special court of CBI acquitted all the 32 accused in criminal dispute due to lack of evidence.What needs …

Repeated Refusal of Wife: A Mitigating Factor?

By- Oshi Priya Introduction India reports the highest number of acid attacks in the world with the least number of convictions. The graph of crime against women has seen an exponential rise in the past century. Acid attack, though not gender-specific, yet targets women in most of the cases. This crime is often used as an …

Locating Female Nudity in the Socio-Legal

-By Nirvani Bhawsar and Karshin Malik Recently, Rehana Fathima who is a women's-rights activist from Kerala was booked under Section 13, 14 and 15 of The Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 (I.T.Act) and Section 75 of The Juvenile Justice (Care And Protection …

The DNA Technology Regulation Bill, 2019 and its Impact on Marginalised Communities

By Ashima Sharma and Nidhi Pratap Singh The DNA Technology (Use and Application) Regulation Bill, 2019 ( “Bill”) has been formulated to create a national DNA database for use in criminal investigation and civil matters. DNA technology can be used to ascertain the identity of a person and can be of use in criminal investigation …

Criminal Procedure Reform: The Dangers of Overvaluing the Ends and Forgetting the Means

By Abhinav Sekhri [The Proof of Guitlt] has consistently argued that changes to the laws that form the bedrock of India's criminal justice architecture — The Indian Penal Code of 1860, Indian Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872 — are necessary. No legal system is, or can be, foolproof; …

Decoding the Judicial Interventions in National Security Act, 1980

By Nityesh Dadhich Introduction ‘Having passed 10 years of my total life in prison dungeons and condemned cells….. I know the tortures which detention without trial means and I can never reconcile with it’ said Shibban Lal Saxena in Constituent Assembly while the assembly was discussing Article 22 of the Indian Constitution. Article 22 of …

Is it Time for Brunei to Amend its Penal Code?

By Raj Krishna and Vivek Kumar Introduction "We declare that human rights are for all of us, all the time: whoever we are and wherever we are from; no matter our class, our opinions, our sexual orientation.” - Former UN Secretary-General Ban Ki-moon On 6th of May 2019, amidst international criticism, the Government of Brunei …

SC Gives Partial Relief to the Accused Charged for the Offence of Murder Considering his Temperament to be a Decisive Factor

By Isha Choudhary  The Supreme Court of India, in its decision in Kandaswamy Ramaraj v. The State by Inspector of Police, CBID seems to have digressed from the law set by the precedents and has thereby, considered short-temperedness of a person as a decisive factor while ascertaining whether that person is entitled to the benefit …

“Need of The Hour” is Not the Bill but Robust Laws: Regulating Commercial Surrogacy in India.

By Isha Choudhary  With the Commercial Surrogacy (Regulation) Bill 2019 (hereinafter referred to as ‘the bill’) being sent to the Rajya Sabha Review Committee, it becomes pertinent to shed light upon the forthcoming aftermath, if the bill is assented to by the Rajya Sabha and subsequently secures the Presidential assent. The legislative history of attempts …

Not a Yes, Means a No: Spanish Laws Roar for Change

By Akash Anurag and Navya Bhandari Sexual offences against women have often been termed as a "silent epidemic"[1] mainly due to the propensity of such cases going unreported. It is only in the recent years that women globally have broken the long imposed societal omerta of keeping quiet over the sexual offences committed against them …

Supreme Court’s Fact-Finding Priorities

By Abhinav Sekhri and Mansi Binjrajka Chief Justice of India, Hon’ble Mr. Justice Sharad Aravind Bobde, just yesterday, took suo moto cognizance of the working of the criminal justice system in relation to sexual offences. Highlighting how the amendments brought to criminal law after the Nirbhaya incident have not achieved the objective of speedy investigation …

Preventive Measures under CrPC: A Tool to Stifle Peaceful Protests?

By Amlan Mishra [This article risks engaging with preventive measures under CrPC and their constitutionality from the prism of lived experiences in protests against CAA] The recent protests over the Citizenship Amendment Act, 2019 have raised pressing questions about the right to protest and the proportionality of police action. This post uses lived experiences of …

Can Constitutional Courts Really Not Do Much About Police Brutality?

By Abhinav Sekhri India's constitutional courts have won deserving acclaim for intervening to save forests, put curbs on pollution, fearlessly address corruption in government, usher in prison reforms, drive governments to pass anti-lynching laws, and strike down patently unconstitutional laws and practices to enable the expression of individual freedom. So to read a news article …

A Repost: On the legality of Internet Shutdowns

[Radhika Malpani is a fourth year law student at National Law University, Jodhpur. It was first published on the blog on Dec. 11, 2018] 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 …

No Censure and Total Sanction: A Recipe for Disaster

By Abhinav Sekhri Below are some random quotes that I've extracted from news reports in the aftermath of the horrible incident of alleged rape in Telangana: Andhra Pradesh Chief Minister YS Jagan Mohan Reddy has promised to bring in a law to punish rapists within 21 days of a crime. [Article dated 09.12.2019 from News Minute]; Thank …

The Death Penalty Debate: Witness to an Execution in 2011

By Anthony Schembri Manuel Valle was born in Florida. I was born in Brooklyn. On Sept. 28, 2011, we would meet for the first time at Florida State Prison in Starke. Our roles were different. He had to die. I had to watch. On April 2, 1978, Manuel Valle killed a Coral Gables police officer …

Undermining the ‘Rule of Law’: Can the ‘Extra-judicial’ Killings be Justified [Caution: Graphic Content!]

By Shivaang Maheshwari On the morning of 6th December 2019, four rape accused in the Hyderabad rape-murder case were killed in a police encounter when they allegedly attacked the police and tried to flee. This has led to a dividing public opinion between the ones who hail the killings as ‘divine justice’ and those questioning …

Statement Condemning the Hyderabad Police Encounter.

By Women in Criminal Law Association "We emphatically condemn the custodial murder of the four persons suspected of raping and murdering a 26-year-old veterinarian in Hyderabad and unequivocally disown the use of violence in the name of women’s rights and women’s safety. The murder of people in so-called “encounters” by the police and security forces …

Accused X v. State of Maharashtra: Decoding the Complex Relationship Between Crime, Punishment, and Mental Illness

By Utkarsh Krishna This article is an attempt to analyse the recent judgement of the Supreme Court in X vs. State of Maharashtra wherein it laid down the law that is to govern post-conviction mental illness in case of impending execution. To fully appreciate the issue, it is important to produce the facts of the …

Northern Ireland Legalizes Abortion and Same-Sex Marriage: A Discussion

By Alivya Sahay and Raj Krishna INTRODUCTION 22nd October 2019 will be remembered for long in Northern Ireland as on this day the British Parliament by Northern Ireland Act, 2019 legalized abortion and same-sex marriage in Northern Ireland. The breakdown of local government in Northern Ireland enabled the British Parliament to step in and amend …

Absence of bodily injury implies consent(?) in rape cases…

By Deeksha Sahni The High Court of Punjab and Haryana in a recent decision in Union Territory, Chandigarh v. Amit Kumar @Rachu & Others passed a very absurd statement to refuse to grant Leave to Appeal against the judgment of acquittal in a rape case. The Court opined that since there were no injuries on …

Section 251 CrPC and Discharge in Summons Cases: Part III

By Abhinav Sekhri [This is Part III in a multi-part series. The previous posts can be accessed, here and here] The previous post in this series traced how the statutory text pertaining to the procedure for trial in Summons Cases developed from 1861 till the late 1960s. This historical arc was traced to identify how, at different points …

Attempt to Suicide : A Comparative Study of Indian Laws vis-a-vis Singaporean and Sri Lankan Laws

By Sneha Sanyal Introduction Suicide is a non-fatal self-directed potentially injurious behavior with an intention to die. This intention can be triggered due to numerous factors such as Psychiatric illness, Depression, Other mental disorders, Sexual/physical abuse (inclusive of childhood adversities), Abuse of alcohol/drugs, Stressful life events such as loss of loved one, imminent criminal prosecution, …

Section 251 CrPC and Discharge in Summons Cases: Part II

By Abhinav Sekhri [This is Part II of a multi-part series. The previous post in this series is here.] The previous post teased the issue of whether magistrates have the power to end criminal proceedings in Summons Cases at a stage prior to acquittal / conviction, after the magistrate has gone ahead and summoned the accused …

Decoding the UAPA Amendment Act: A Death of the Rule of Law?

By Mansi Gupta Introduction On August 2, 2019 the Parliament passed Unlawful Activities (Prevention) Amendment Bill, 2019 seeking amendment in the Unlawful Activities Prevention Act (UAPA), 1967. This bill allows the government to declare ‘individuals as terrorists’ as opposed to the previous law which allowed only organizations to be labelled as ‘terrorist organizations’ but not …

The Problematic Case of Sanctions Under Section 188, CrPC: Filling the Void

By Tanishk Goyal Introduction The extraterritorial application of Indian statutes abroad is something which has been the subject matter of debate for quite some time. To this effect, Section 4 of the Indian Penal Code (‘IPC’), and Section 188 of the Code of Criminal Procedure (‘The Code’), provide for the extra territorial application of Indian …

Moral Vigilantism: A Joint Effort Under the Garb of Preventive Action and Enforcing Ethical Behaviour

By Jayesh Kumar Singh Introduction The police are entrusted with the responsibility of prevention of cognizable offences; however, the Anti-Romeo Squads and Operation Majnu in Uttar Pradesh depict a pitiable tale of moral vigilantism. It refers to the actions of vigilant groups in enforcing a preconceived code of conduct based on personal morality, culture and …

Analysis of the Supreme Court Judgment in CBI v. M. Sivamani

By Aastha Gangwal Introduction The prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence has been discussed under Section 195 [“Section”] of the Code of Criminal Code, 1973 [“CrPC”].  It can be broadly categorized into three parts. Section 195(1)(a) deals with …

Unbridled Power in Hands of Married Women: A Brief Analysis of Section 498A of IPC

By Aditya Tripathi INTRODUCTION Section-498A of the Indian Penal Code, 1860 (IPC) was inserted by way of an amendment in 1983. It was enacted with the aim of providing protection to married women against cruelty by their husband or in-laws, which often may lead to cases of dowry deaths. However, with the changing scenario it …

P. Chidambaram v. Directorate of Enforcement: A Lost Opportunity?

By Udayan Tandan and R. Harikrishnan Recently, the Supreme Court in P. Chidambaram v. Directorate of Enforcement (hereinafter ‘Chidambaram’), had the occasion to consider the scope of Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (hereinafter ‘PML Act’). To give a brief background of the case - In 2007, INX Media …

Rape as a Hate Crime

By Vedangini Bisht Some researchers prefer to call hate crime a misnomer. Because going solely by the literal meaning of the term, it would refer to a crime which is motivated by hate, when actually there is not hate, but prejudice involved, although there is no saying that there cannot be an overlap in them. …

Letsweletse Motshidiemang v Attorney General: Botswana High Court Decriminalizes Homosexuality

By Raj Krishna and Alivya Sahay INTRODUCTION AND BACKGROUND "Human dignity is harmed when minority groups are marginalized." - Judge Michael Leburu On 11th June, Botswana’s High Court in the case of Letsweletse Motshidiemang v Attorney General struck down the colonial law which criminalized homosexual acts between two consenting adults with up to seven years …

What the Protests over the Motor Vehicles Act Amendments tell us about Criminal Law

By Abhinav Sekhri On 19 September, 2019, there was a big strike organised by public transport workers across Delhi and other parts of India, to protest against the amendments recently made to India's Motor Vehicles Act [MV Act]. The main cause for the protests, I am led to understand after speaking to several cab and auto drivers …

US Supreme Court Denies Right to Painless Death: A Critical Analysis of Bucklew v Precythe Judgment

By Teresa Dhar and Raj Krishna Introduction On April 1, 2019, in a significant decision, the United States Supreme Court by a majority of 5-4 reiterated the fact that the Eighth amendment of the US Constitution prohibits cruel and unusual punishment altogether, but it did not guarantee any right to painless death. In this case …

Science in Policing: The New Old Thing

By Abhinav Sekhri Recently, the Home Minister made an interesting public speech where he reportedly lamented the poor conviction rates. An official report of his comments also notes that the Minister suggested that wholesale changes to the Indian Penal Code of 1860, and Criminal Procedure Code of 1973 were on the cards to help make things better on the conviction …

Human Trafficking: The Wound that has Failed to Heal

By Ritika Goyal “Imagine having all of your freedoms taken away, being forced to work against your will, and constantly living under the threat of violence.” This is the plight of around 40.3 million victims of human trafficking worldwide who are compelled for prostitution, pornography, sex tourism, drug peddling, organ removal, adoption, armed conflicts, coerced …

The Delhi High Court Order in P. Chidambaram v. ED: Three Thoughts

By Mr. Abhinav Sekhri  This week saw the arrest of a former Union Minister, P. Chidambaram, in connection with allegations of corruption and money laundering in what has popularly been called the "INX Media" case. In this post, I'm not interested in the arrest itself — the pageantry of which has already attracted much discussion …

The Question of Justice: Fair Trial, Approver Witnesses and Accused’s Rights

By Bhaskar Kumar and Prannv Dhawan   The legal and political commentariat has been buzzing with the controversy over the reasons and methods regarding the arrest of former Finance Minister, Mr. P. Chidambaram. While many have been critical of the unusual haste in the arrest of Mr. Chidambaram, several analysts have suspected that this could …

Is the 2019 Amendment to the PMLA “Retrospective” in its Operation?

By Sameer Sharma I had written a short article recently on the amendments to the Prevention of Money-Laundering Act, 2002, and as to how these amendments clarify the conception of what money-laundering constitutes. Now, with the INX Media case involving money-laundering allegations against former Union Finance Minister Mr. P. Chidambaram pending before the Supreme Court, …

Compensation to Rape Victims- A Critical Analysis.

By Sandhya Gupta The criminal law of any country is the basis to punish the public wrongs done by an individual as well as to act as a deterrent for the society. The criminal law deals with various categories of crimes and their respective punishments/penalties. In India, one such category is the sexual offenses against …

Is PMLA Being Retrospectively Applied in the INX Media Case?

By Bhaskar Kumar   Introduction The provisions of the Prevention of Money Laundering Act, 2002 [“PMLA” or “the Act”] have again caught attention when Dr. A.M. Singhvi argued that the Act is being retrospectively applied in ongoing INX Media case involving Mr. P. Chidambaram. Dr. Singhvi asserted that Mr. Chidambaram could not be tried for an …

Brazil: Discrimination Against the LGBTQ Community is a Penal Offence.

By Raj Krishna and Snehil I. INTRODUCTION AND BACKGROUND  On 13th June 2019, Brazil’s Supreme Federal Court by a majority of 8 to 3 declared discrimination based upon sexual orientation and gender identity a criminal offence under the Brazilian hate crime law of 1989 (Law 7716 of 1989). Initially, the Brazilian law recognized discrimination only …

Under-reported Interpretation of Rape via Prism of Criminology.

By Amreen Tapadar and Deeksha Sharma As loathsome and obnoxious the concept of inflicting pain on non-consenting parties to derive sadistic pleasure appears to one, the actuality in cases of rape is the application of sexual sadism. Unfortunately, the justice system prevailing in our nation has opted for discounting the criminology behind rape and has …

Identifying the Juvenile: Is Age the Correct Criterion?

By Khushboo Agrawal The significance of the Juvenile Justice system comes to surface because of the incapability of the juveniles to understand the nature and consequences of their acts. Subjecting these juveniles to the normative criminal justice system may be deleterious. For bringing these juveniles under the justice system, they must first be identified. Various …

Serving Death Penalty on a Silver Platter: Khushwinder Singh v. State of Punjab

By Rajat Sharma INTRODUCTION Recently, while speaking to Project 39A of National Law University, Delhi, Retd. Justice Kurian Joseph echoed the concerns surrounding the awarding of death penalty or the capital punishment in India in the rarest of rare cases by the Supreme Court (hereinafter SC). This is a sentiment that was also highlighted in …

The Public Prosecutor & the Child Victim

By Vrinda Aggarwal Justice has been viewed as a triangulation of three interests – the interest of the accused, represented by the defence attorney, the interest of the society to punish a crime, represented by the public prosecution (PP) and the interest of the victim, which often remains unrepresented.[i] This article aims to discuss this …

Stealthing as Post-Penetration Rape

By Bhaskar Kumar In a recent Canadian case, the Ontario Superior Court of Justice held that non-use of a condom against a participant’s wishes would amount to rape as it robs a partner of his or her liberty to engage in sexual relationship as per the agreed terms and conditions. In this case, the woman …

Prosecutor or Persecutor: Analysis of Madhya Pradesh Government’s Reward System

By Palak Jain The criminal justice system places the right to a fair trial at the highest pedestal. To secure this right to both the victim and the accused, there is state and non-state machinery that plays a significant role. This includes the police that conducts the investigation, the legislators that enact the law and …

Should Marriage Be Considered As A Ground For Exercising Inherent Power to Quash A Rape Case?

By Shiv Kumar Sharma  The Kerala High Court in its recent judgment, in the case of Ashiq N.A. v. State of Kerala[i], has exercised its inherent power to quash criminal proceeding in a rape case as the accused has married with the victim.  As per the High Court, the victim and the accused have entered …

Anticipatory Bail and Jurisdiction

By Mr. Abhinav Sekhri Suppose you are ordinarily a resident of Delhi, but come to know that a case has been filed (or is about to be filed) against you in Mumbai, alleging you committed non-bailable and cognizable offences such as "Cheating", punishable under Section 420 of the Indian Penal Code 1860 [IPC]. Your law-savvy friends tell …

Unlawful Activities (Prevention) Amendment Bill, 2019: A Draconian Proposal

By Ritwik Sharma On 23rd July 2019, the Unlawful Activities (Prevention) Amendment Bill 2019 was passed by the Lok Sabha amid protests from both within the House as well as outside it. The opposition staged a walkout after it lost the motion to send the Bill to the Parliamentary Standing Committee for further scrutiny. The …

Conducting Trials ‘In Absentia’

By Sanjana Hooda INTRODUCTION TO THE CONCEPT The core objective of a criminal trial is to strive towards the attainment of justice and to ensure that the rule of law is maintained. The presence of the accused, in order to be submitted to trial, is indispensable to the foundation of any judicial system and is …

Re-examining the Dicta in Anil Kumar v. M.K. Aiyappa in Light of Pre-Investigation Sanction

By Jasmeet Singh Chadha INTRODUCTION             The recent judgment of the Hon’ble Supreme Court in Manju Surana v. Sunil Arora & Ors.[1]  referring the controversy surrounding the mandatory requirement of procuring sanction for initiating investigation by the Magistrate in exercise of powers enumerated in Section 156(3) of the Code of Criminal Procedure when a complaint …

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 …

A Critical Analysis of the Acts Amounting to Torture under the Prevention of Torture Bill, 2017.

By Eshani Vaidya Introduction "Custodial torture" is a naked violation of human dignity that largely destroys the individual personality.[1] No violation of any one of the human rights has been the subject of as many Conventions and Declarations as ‘torture.’[2] The Parliament, keeping in mind its international obligations under the Convention against Torture and other …

Guiding Police Discretion: Police Circulars and The Limits of Top-Down Reform

By Mr. Abhinav Sekhri Let's do a thought experiment. Think of the criminal justice system — or criminal process as I like to call it — as a building. Now, the basic architecture of this building is fairly well-known to us, and exists in the form of three statutes: the Indian Penal Code 1860, Indian Evidence Act …

EG v Attorney General: A Critique of the Kenyan High Court’s Homosexuality Judgment

By Raj Krishna INTRODUCTION On 24th May, Kenya’s High Court in the case of EG v. Attorney General upheld the colonial law which criminalized homosexual acts between two consenting adults. The three judge bench of the Kenyan High Court unanimously held that there was no substantial proof of evidence which proved that the members of …

Marriage of Rape Victim to the Accused leads to Court Quashing Charges: A Legal Fiasco

By Nishtha Gupta  A controversial decision by the Kerala High Court stated that a rape case can be quashed on subsequent marriage of the victim to the accused. The decision was given by Justice Alexander Thomas after the rapist married the victim during the trial. THE CASE In the case, the accused committed rape on the …

Conspiring with Yourself: Can a Single Person be Convicted with the Help of Section 34 of the IPC?

By Vivek Punia Section 34 of the Indian Penal Code, 1860 (IPC) states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. When several accused …

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 …

Sunita Tiwari v. Union of India: Evaluating the Available Options to Invalidate Female Genital Mutilation

By Priyanka Sunjay In the case Sunita Tiwari v. Union of India (W.P. (C) No.286/2017), which has recently been referred to a constitutional bench, a wide range of reliefs are being sought, which include: (a) ensuring a complete ban on the practice of female genital mutilation in India by: first, declaring it to be a criminal …

Birla v. Adventz: A Snapshot of the Supreme Court and Criminal Law & Procedure

By Mr. Abhinav Sekhri I happened to be in the Supreme Court in February when arguments were being addressed by parties in Criminal Appeal No. 875 of 2019, Birla Corporation Ltd. v. Adventz Investments & Holdings Ltd. & Ors. (Connected with Crl. Appeal Nos. 876 of 2019 and 877 of 2019). It was a great experience as …

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 …

Filter or Dilution: An Analysis of the SC & ST (Prevention of Atrocities) Act, 2018.

By Yogita and Mitali Kshatriya   “Whether a torch which is lighted to dispel the darkness, can be permitted to set on fire the innocent surroundings?”  -Gujarat High Court in Pankaj D. Suthar v State of Gujarat, [1] while analysing the question of grant of Anticipatory Bail in SC/ST (Prevention of Atrocities) Act cases. INTRODUCTION On March …

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 …

Executive or Judicial: Decoding ‘Magistrate’ Under S.26 of the Indian Evidence Act

By Anubhav Bijalwan INTRODUCTION Section 26 of the Indian Evidence Act, 1872 [hereinafter “IEA”] read with the scheme of Sections 24, 25 & 27 of the Act creates an embargo on the proof of confessions made by the accused in police custody.[1] In our criminal dispensation system, it is a settled position that such confessions …

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 …