Showing posts with label Judiciary. Show all posts
Showing posts with label Judiciary. Show all posts
- K.Keerthana


INTRODUCTION:

Plea bargaining or negotiated plea is a pre-trial negotiation between the defendant and prosecution in which the defendant agrees to plead guilty in exchange for some kind of concession. Usually, the concession is in form of a lesser punishment than which is specified by law or for dropping few charges in case of multiple charges or for recommending to the judge a specific sentence that is agreed by the defendant. This concept of plea bargaining was introduced in our Indian Criminal Justice System (ICJS) in the Criminal Law (Amendment) Act, 2005 under the recommendation of the 154th Law Commission. Sections 265 A to 265 L of the Code of Criminal Procedure (CrPC) provides a mechanism through which a criminal case can be settled without going for a trial.

The concept of Plea bargaining is not available to all criminal offences in India. It does not apply to heinous offences like murder or rape where the punishment is life imprisonment or the death sentence. Under our Indian legal system, the following offences come under the ambit of Plea Bargaining:
Offences for which punishment is less than seven years
Offences which do not affect the socio-economic condition of the country
Offences which are not against women or against a child below 14 years of age

However, the option of going for plea bargaining is not available to Juveniles or if the accused has been previously convicted for the same offence.

Thus, if A is accused of theft and voluntarily causing grievous hurt, he may agree to plead guilty if he is prosecuted only for theft.

TO TRIAL OR TO PLEA?

The most frequent question that arises in the minds of people regarding the concept of plea bargaining is - whether it is better to go to trial or to get a plea bargain. There is no definitive answer to this question as it differs from case to case. Under some circumstances, it is better to take a plea while in others it is more beneficial to go to trial. The decision of going to trial or getting a plea depends solely on the accused who has much more to consider than whether he is actually innocent or not.

However, even if the answer differs for every case, there are some ways in which the accused can come to a decision. Firstly, talking to a criminal lawyer will give great insight into the matter. Even if the accused will have a rough idea of the criminal process with familiarity from the news or the internet, a criminal lawyer would have much more experience from dealing with many such cases. The lawyer would be able to brief the accused on the current criminal process, possible sentences or concessions, etc. The lawyer will also be able to analyze the pieces of evidence in the current case and determine the possibility of a guilty verdict.

The next important thing is to consider if the plea will actually be in the best interests of the accused and if the plea is actually a bargain for the benefit of the accused. These can be determined by analyzing the pros and cons of going to trial and getting a plea.

PROS AND CONS OF TAKING A PLEA BARGAIN:

First, we will discuss the pros and cons of taking a plea. Taking a plea bargain will resolve the case quickly. This will help in avoiding publicity and unwanted attention. Especially, since our country is infamous for dragging cases for around seven to ten years or even more, settling the cases quickly is a better option. Quick settling of cases will help save your time and money. Plea bargaining allows a person to plead guilty even without a lawyer. So taking a plea can save a lot of money which must be spent on a lawyer if you proceed to trial. Further, plea bargaining helps the accused get a lighter sentence than which is prescribed by law and also get concessions. Since the negotiation with the prosecutor is done before the trial, there is no uncertainty of the proceedings. Also, once the plea is approved by the judge, there can be no appeal to higher courts by the opposition. Thus, the person can be certain that the case is closed.

Like every coin has two sides, plea bargaining also has some disadvantages. In India, one cannot enter into a plea bargain without admitting guilt. Admission of guilt creates a criminal record and the person has to deal with the moral repercussions of conviction in the society. This includes the difficulty of getting job opportunities even after some years. Even innocent persons who take a plea in order to avoid a lengthy trial will have to continue their life with a criminal record. Further, even after taking a plea, a person cannot escape punishment. A plea bargain only allows some concessions or a lesser punishment. So the accused will have to serve minimum punishment or pay some amount of fine even in some of the most successful plea bargains. Another disadvantage of taking a plea is that a judge can reject the plea and impose a longer sentence if the judge is convinced that the plea is unfair. And once the judge rejects a plea, it is very difficult to prove that the accused is innocent.

When an accused enters into a plea bargain, he loses many of his rights:
Right to trial: The accused loses his right to be heard by a judge and to have a trial, which is implicit under Art 21 of the Constitution of India, as he voluntarily admits to being guilty of the crime.
Right to testify: By taking a plea, the accused loses his right to tell his version of the events that took place and get exonerated in case of his innocence.
Right to appeal: Once a plea is approved by the court, he loses the remedy of further appeals.

PROS AND CONS OF GOING TO TRIAL:

Going to trial has several advantages. Going to trial will give the defendants more time to prepare a better defense which aids in proving that the accused is innocent. In a trial, an accused is always innocent until he/she is proven guilty. The burden of proof is upon the prosecutor to find pieces of evidence against the accused and prove the case beyond a reasonable doubt. The accused also has the option of going to appeal if he does not take a plea. Even if the trial is a lengthy process, going to trial and getting acquittal is the only way for an innocent to have justice. It is also the only way for a person to escape criminal responsibility and criminal records. Further, some plea bargains offer very little incentive to the accused. It mainly helps the prosecutor get the accused convicted and the victim to have better compensation.

However, going to trial is putting the life of the accused in the hands of the judge. This makes it very difficult for the accused to know the outcome of the trial. The prolonged and lengthy process of the trial will cause mental agony to the accused and the ultimate outcome also is very unpredictable. The major part of the outcome of the trial also depends upon the lawyer’s skill. The way the defense lawyer presents his arguments and proceeds with the case plays a very important role in deciding the fate of the accused. Further, if the accused is found guilty by the court then the accused will have to serve the maximum punishment or penalty for the offence committed. This can be avoided if the accused takes a plea.

CONCLUSION:

Many members of the Tablighi Jamaat belonging to different countries have obtained releases from various court cases by taking a plea bargain. Accused of violating visa conditions to attend a religious congregation in Delhi, many have closed their cases by admitting guilty to minor charges and paying fine. Thus, plea bargaining helps people to avoid time-consuming trials. However, in order to prove the innocence of the accused, going to trial is the better option. Even if the saying “Justice delayed is justice denied” is true, it is also true that an innocent person should not be found guilty. It is solely the right of the accused to choose whether to go to trial or to take a plea bargain. The decision should be taken considering the best interests of the accused.



REFERENCES:

· https://bit.ly/2PKuIxB

· https://www.hg.org/legal-articles/pleading-guilty-or-going-to-trial-pros-and-cons-36359

· https://bit.ly/30Qy2NQ

 - PANKAJ RAWAL[1]

Image Credit: The Economic Times

Supreme Court’s verdict on women’s inheritance rights on –11th August 2020: This will be marked as a historical change of course in the legal arena of Indian legal development.

VERDICT: On Tuesday, the Supreme Court settled its own confusion pertaining to the conflicting interpretations of the amended section of Hindu Succession Act, 1956 i.e., Section 6 (which is in force since September 9, 2005). The Apex Court made it very explicit that daughters have equal coparcenary rights in the ancestral property even if they were born before the 2005 amendment and regardless of the fact that whether their father was alive or not at the time when the law was amended in 2005. As the coparcenary is by birth, so it is not necessary that father coparcener should be living as on 9.9.2005.

Supreme Court held that ‘Hindu Succession Act 1956’ has a retrospective effect irrespective of the fact that she (daughter) was born and her father was alive or not at the time of such amendment i.e., 2005 amendment to the Hindu Succession Act, 1956.

MAIN ISSUE TO SETTLE – The principal issue which needs to be settled down was that the amendment that has been done to the Hindu Succession Act, 1956 in the year 2005, granting equal coparcenary rights to the daughters to inherit the ancestral property would have a retrospective effect or not?

LAW OF 1956 – The Mitakshara School of Hindu Law which is codified as the Hindu Succession Act, 1956 governed both the succession and the inheritance of property. But it recognized only ‘males’ as legal heirs. So traditionally daughters were not considered as coparceners in accordance with section 6 of the law of 1956.

2005 AMENDMENT SCENARIO – In the year 2005, a crucial step was taken by amending section 6 of Hindu Succession Act, 1956. As before the 2005 amendment, only male heirs were to be considered as coparceners. But this amendment has essentially marked a historical change in the milieu of “gender justice”, as it provided equal inheritance rights to the daughters also in the ancestral property. So this has recognized “daughters” as coparceners by birth in the family in the same way as sons – “A son is a son until he gets wife but a daughter is a daughter throughout her life”.

POST 2005 AMENDMENT SITUATION – While the 2005 amendment granted equal rights and liabilities to women, many disputes were arisen pertaining to the nature of the Hindu Succession (Amendment) Act, 2005: whether this law is retrospective in nature or does it have a retrospective effect or not?. And also whether the rights of women are depended on the living status of their fathers at the time of amendment or not?  Different benches of the Supreme Court have given conflicting views upon this question in various cases. Relying on such conflicting views by considering them as ‘binding precedents’ many High Courts have also decided on some cases.

In the case of Prakash v. Phulavati (2015), the decision was given by a two-judge bench headed by Justice A K Goel, it was held that if the coparcener (father) is died prior to 9 September 2005 (it is the date on which the amendment has come into force), his daughter will have no inheritance right to be entitled in the coparcenary property. So the benefit of such amendment will only be given to “living daughters of living coparceners” on 9 September 2005.

Then again in the case of Danamma v. Amar (2018), a two-judge bench headed by Justice A K Sikri has held that the daughters, in this case, will get shares in the property as coparceners even if their father died in the year 2001.

As these conflicting perspectives were given by the benches of equal strength, that will lead to the reference to the larger bench in the current case i.e., a three-judge bench in the case of  Vineeta Sharma v. Rakesh Sharma (2020).

GENDER JUSTICE: VINEETA SHARMA V. RAKESH SHARMA (2020) -  In the case of Vineeta Sharma, the Supreme Court has overruled its own decision in the case of Prakash v Phulavati (2015) and also partially upheld its own holding in the case of Danamma v. Amar (2018). The Apex Court’s verdict in this the case was marked as a “progressive step” as it cleared the ambiguities pertaining to the extent and nature of a daughter’s rights to inherit the ancestral property.

“The Hon'ble Supreme Court has taken a powerful step towards the “equality” as provided under article 14 of our Constitution,” It has clearly adjudicated on the issue of effective date of 2005 amendment, by saying that it is of no relevancy that what is the date of birth of the daughter or alternatively the date of the death of the father, whether it is prior to the amendment or post. As long as a daughter is alive post the amendment, she will be entitled to an equal right as a son in the coparcenary property.

And also Court clarified that “Coparcenery is a birthright (unobstructed heritage)”. So the same rights have to be conferred on the daughters also by birth in the same manner with the incidents of coparcenary as that of a son. And another point of re-opening of partition before 2005, can it be done or not? The Apex Court stated that a partition which has already been done before 2005 can’t be re-opened provided it was duly done in accordance with the law or it  has gone through the proper legal process as required by the law.

The Hon’ble Apex Court has also noticed that similar suits or appeals across the country were pending before different high courts and lower courts for a long time because they all were dealt with the same dilemma about nature and extent of a daughter’s rights to inherit an ancestral property vis-à-vis effective date of 2005 amendment.

As all those matters which were already been delayed because of the legal imbroglio which was due to the conflicting views of different benches of the Supreme Court. So this was directed and requested to these courts to adjudicate upon these matters and decide them within six months in consonance with the landmark judgment passed in the current case i.e., Vineeta Sharma v. Rakesh Sharma (2020).

So in my opinion also “this judgment has not only promoted gender equality as guaranteed by our constitution in the form of a fundamental right, but also it has negated the oppressive approach of the society by breaking the deadlock of the dated patriarchal system”.



 [1] STUDENT OF HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA.

Image Credit: The Economic Times

 - Aradhaya Singh


“Success is never final. Failure is never fatal. It’s courage that counts”

Introduction:

This situation of corona pandemic is a non-forgettable period that has swept the globe is perhaps going to be recorded in history as the most impactful and consequential event of this a century and many situations came forward like stretched the capacities of governance, public health infrastructure and social administration of affected nations to their limits. And with the particular time, the lockdown enforced to prevent the spread has brought economies to the ground and jeopardised the job prospects of many people. This will going to have many negative effects further in the coming years. So is the case with the final year graduates waiting in the wings and looking for their first job feel marooned. But this pandemic has ruined everyone’s lives.

Amid the Corona Virus pandemic in our country India, conduction of examinations have become a source of anxiety, stress, confusion and suspension for the final year college students all over India.

Weeks after the slogans and hashtags like #StudentLivesMatter #NoExams trended on Twitter, over 30 students from across our country India which also included a COVID-Positive student, moved to the Apex Court that is the Supreme Court of India against the guidelines prescribed by the University Grants Commission (UGC) which mandated the conduct of the final semester or final year examinations by 30th September 2020 after the State Governments of Delhi and Mumbai had restricted the conduct of final year examinations in colleges in their respective states.

Once again it was clear that the body for higher education that is the UGC is in no mood to budge from its stand and also said that all universities/institutions across the country are obligated to conduct all universities and institutions conduct final year exam by the end of September 2020.

What is University Grants Commission (UGC)?

The university grant commission of India or UGC (1) is a statutory body set up by the Government of India in accordance with the UGC Act 1956 under the Ministry of Education, which regulates the standards of higher education in the country, which includes the standards of examination in the country. The UGC Act is traced to Entry 66 (2) of List-1 of Schedule VII of the Constitution of India. It also highlights that the conduct of course- ending terminal examinations are very important to the academic and career interests of people.

Who filed the petition and what does the petition says?

According to the guidelines raised as an issue to the academic calendar, the final year university examinations must be conducted by the end of September 2020.

Reports said that students have sought quashing of UGC guidelines which were brought into the light on 6th July 2020.

The petition was filed by a group of students who are final year students and who themselves are suffering from Covid-19 and some of whose family members are also Covid-19 positive. Among the petitioners who filed there was also a Covid-19 student.

The petition before the Apex Court clearly states that “Forcing such students to appear in the final year university examination on 30th September 2020 is violative of 'Right to Life', as enshrined within Article 21 (3)  of the Constitution of India.

The students also have sought directions to the authorities to provide another chance to improve marks to the students who may be unsatisfied with their marks based on past performance or internal assessment basis.

Background of the Case:

The matter of “UGC Vs Final Year Students” is a trending matter now and still, its hearing is delayed till 14th August 2020 when the final decision will come. Many petitions are filed by the final year students all over India. This matter was taken up by the 3- judges bench which consists of Justice Ashok Bhushan, R Subhash Reddy and MR Shah.

Affidavits were filled by the government of Maharashtra and Delhi before the Supreme Court stating that the exams would not be conducted in light of the COVID-19 pandemic. Then the opinion of UGC came forward and maintained that the exams needed to be conducted by September 30.

On July 31, the Court refused to pass an interim order in a batch of pleas seeking quashing of the UGC guidelines directing universities to conduct final-year examinations by September 30.

As then the Apex Court had asked the Union Home Ministry to clarify its stand on the UGC's July 6 guidelines and the challenges filed by the petitioners.

In its response, UGC informed the Court that it would not alter the July 6 guidelines.

And then the statement of UGC came forward in the affidavit and it was said that the guidelines to conduct the exams were issued to “protect the academic future of the students". It was also added that the exams were necessary to evaluate the students on “specialized elective courses" they took in the final year.

 In this regarding, Tushar Mehta (solicitor general) representing the UGC, questioned the stand taken by Maharashtra and Delhi to cancel the exams this year. He also added that the cancellation to exams is contrary to the decision of the UGC which is the authorised body to confer degrees on students, he said.

Mehta after looking at all the issues waited for some extra time to respond to the affidavits filed by Maharashtra and Delhi.

UGC's response before the Supreme Court: These are the various responses which UGC had presented before the Apex Court of India. These are:

1.      In the situation of this corona time, the final years' students are  unable to appear in the examination conducted by the university for whatsoever reasons maybe, students of UGC  may be given an opportunity to appear in special examinations for such courses/papers, which may be conducted by the university as and when feasible, so that the student is not put to any inconvenience/disadvantage.(4)

2.      The opinions were also used that, UGC has issued such guidelines to protect the academic future of students across the country which will be irreparably damaged if their final year/terminal semester examinations are not held, while also keeping in mind their health and safety. (5)

3.      Particularly it happens when this has been settled in a good manner so that the courts of law do not ordinarily intervene in academic decisions and policies involving standards and quality of education, nor do they normally substitute the views of expert bodies. (6)

4.      Regarding the decision of the governments, (Maharashtra and Delhi) to either cancel the terminal semester/final-year exams for UG/PG students, and/or to graduate such students and it was conferred that  without appearing for the final year/terminal semester examinations is plainly contrary to the UGC guidelines degree is enable to confer.(7)

5.      After all, this decision directly affects the standards of higher education in the country and will be an encroachment on the legislative field of coordinating and determining the standards of higher education that is exclusively reserved for Parliament under Entry 66 of The list I of Schedule VII of the Constitution.(8)

6.      As per submissions made the settled law, provisions which give overriding effect to an Act must be given a restricted meaning so as to be kept confined to the policies such as legislative policy, intent, object, scheme and purpose of that Act.      Under the UGC act, nugatory, this kind of provisions cannot be invoked to render the statutory provisions of another special Act.(9)

7.      So, with the revised guidelines of UGC the Ministry of Home Affairs has also permitted the conduct of final year/terminal semester exams by universities and institutions. According to MHA's communication, the exams of final year and the terminal semesters are to be compulsorily conducted as per the date of UGC guideline 29.04.2020 and 06.07.2020.(10)

8.      The UGC guidelines dated 06.07.2020 adequately account for the evolving situation of the COVID-19 pandemic because they (a) provide sufficient time till the end of September 2020 to conduct the final year/terminal semester examinations after following the prescribed protocols and procedures relating to COVID-19; (b) give sufficient flexibility to universities/institutions to conduct such exams online, offline (pen and paper) or conducted (online or offline) mode, and (c) provide for an examination through the special chance for students who "for whatsoever the reason may be" are unable to appear for the examinations conducted by a university/institution by the end of September 2020. The exams can be conducted by the universities or institutions as and when feasible so that the students concerned are not put to any inconvenience and disadvantage. Now, the concern of petitioners and the state governments have been more adequately addressed by the UGC.(11)

According to the statement, the UGC had said of the 640 universities that had submitted responses, more than 400 had either completed final exams or planned to do so using the prescribed modes.

What else did UGC tell the Supreme Court of India recently? :

The University Grants Commission told the Supreme Court on 13th August 2020 that the decision of the Maharashtra and Delhi governments to cancel final year college exams due to Covid-19 was could not override its order to universities to hold the exams by September 30 through online or offline modes so void ab-initio.

The UGC stated that “Neither the Disaster Management Act, 2005 (12) nor the Epidemic Diseases Act, 1897 (13) empower the state authority or the state government to take decisions that affect or impact the standards of higher education. It is the UGC alone which is mandated to maintain such standards under UGC act. Hence, the decisions of the state authority and the state government (to cancel exams) are an encroachment on the legislative field of coordinating and determining the standards of higher “.

The UGC also said that Final exams play a crucial step in an academic career in every student’s life.

 

Conclusion:

 

Last but not the least, it can be concluded that examinations must be conducted as per UGC guidelines for final year students as if it will not going to be conducted by all the state governments and universities across the country, then the students' degree would not be valid anywhere and their lives will be ruined and a question mark will going to be put regarding their degree.

 

References:

 

·        www.ugc.ac.in

·        Item Number 66 (Union List) : It says “Coordination and determination of standard in institutions for higher education or research and scientific and technical institution.

·        Article 21 : Protection of life and personal liberty.

·        www.indianews.com

·        www.indianews.com

·        www.indianews.com

·        www.livelaw.in

·        www.dnaindia.in

·        www.indianews.com

·        www.indianews.com

·        www.indianews.com

·        www.barandbench.com, www.disastermanagement.com

·        www.barandbench.com

-Shubham Ranjan

                                     

Introduction
The Supreme Court Of India on August 11th, 2020 gave a landmark ruling with regards to the Hindu Succession Act. It was held that daughters would have equal coparcenary rights in a Hindu Undivided Family properties even if they were born before 2005 and regardless of the fact whether their father had died before 2005 or not. This judgment was given by a three judge bench comprising of Arun Mishra, S Abdul Nazeer and MR Shah.

History
From the 1900’s to 2020, there have been several changes in the laws regarding what share of the property do females get in a Hindu Undivided Family(HUF). As termed by the experts, the Classical Law period which is from 1860-1937 saw one of the first significant changes with respect to the laws for females in a HUF. In this time period, a new law was passed which stated that no widow had the right to demand partition but on the other hand the widowed mother received a certain when there was a partition between brothers in the family. Moving onto the act which was passed in 1937, there was a huge development regarding the rights for widows in a HUF. Finally in this Act it was stated the right to partition will be given to widows and this gives them the right to step into the shoes of the deceased coparcener. It was also mentioned in this act that the widows only had a limited right and didn’t actually have the right to alienate whenever they wanted to. This entiremove was not welcomed by the entire population of India and received severe backlash from certain parts of the population. Some say, this was the first step to females getting equal rights when it came to properties in a HUF. Now swiftly moving onto 1956 when the next amendment was made in the Hindu Succession Act. This as said by many experts is said to be one of the most significant developments with respect to female rights to property in a HUF. This amendment tweaked the famous Section 6 in the Hindu Succession Act. This section contains the list of Class 1 heirs which in simple terms shows the list of family members who will be first in line to get property when a partition takes place in a HUF. In the 1956 amendment, the mother, daughter and a widow were also added to the list of Class 1 heirs. This meant that now the mother, daughter and a widow would be first in line to get property in case a partition takes place in a HUF. Another significant amendment was with respect to Section 14 of the above mentioned act. Now this particular section would have retrospective effect for females including widows. This section states that any property which is owned by a female Hindu, whether acquired before or after the commencement of the said act shall be held by her as a full owner and not in a limited capacity. This was a monumental step in terms of females getting equal rights with respect to property in India.

21st Century
Now fast forwarding to the 20th century, specifically to 2005. Legal experts across India deemed this as one of the most progressive moves that the Indian judiciary have taken in past few decades. In the 2005 amendment to the Hindu Succession Act, 1956 it was stated in Section 6 of the act that daughters are coparceners. It was further mentioned in the section that the daughter of a coparcener by birth will become a coparcener just as a son in the family would. It is mentioned in sub-section(b) that the daughter of a coparcener will have the same property rights as she would have had if she had been a son. Lastly in sub-section(c) that the daughter of the coparcener will have the same liabilities in respect of the coparcenary just as a son would. Even though all this was a great move by the government, there was a caveat in all this. The caveat in this case was that for this section to apply the daughter and the father would have to be alive on September 9th, 2005( the date the amendment was passed). This caveat was not welcomed by a lot of the population as this set a condition that had to be fulfilled before the right would be given to the daughters.

Current Day
Now coming to the Supreme Court judgment passed on August 11th, 2020, this has to be one of the most revolutionizing judgments in the family law field. The Supreme Court of India ruled that a daughter can claim an equal share in coparcenary property irrespective of when she was born and if her father was alive or not at the time the amendment was passed in 2005 (September 9th, 2005 to be exact). The Supreme Court in this judgment has emphasized that the coparcenary rights are acquired by a daughter at birth irrespective of the fact whether the daughter was born before or after the amendment to the Act was effected. Also since the rights have been acquired at birth, it doesn’t matter if the father was alive or not at the time of the amendment. The only limitation in this case is if the property has been disposed by other means prior to December 20th, 2004 (date provided in Sec 6(1) of HSA).

Conclusion
Overall, I feel this is an extremely great move by the Indian judiciary. This is another step in the right direction, this is a step towards gender equality. The Indian judiciary in the past have been questioned over several conservative minded judgments but this is surely a step in the right direction. This judgment will help the daughters of a HUF get what they truly deserve. I hope that in the years to come there are several more judgments with this mindset which will promote gender equality and take Indian to even greater heights. There are several issues in India that need to be tackled with respect to gender equality and I hope that those issues are also resolved in the years to come.

References

1. Vandana Ramnani, 'SC Ruling That Daughters Have Equal Coparcenary Rights In A Joint HUF ‘Progressive’; Settles All Ambiguities, Legal Experts' (Moneycontrol, 2020) <https://www.moneycontrol.com/news/business/personal-finance/sc-ruling-that-daughters-have-equal-coparcenary-rights-in-a-joint-huf-progressive-settles-all-ambiguities-legal-experts-5685351.html>.

2. Saxena Poonam Pradhan, Family Law Lectures (Lexis Nexis 2013).

3. Hindu Succession Act 1956.

4. Vineeta Sharma vs Rakesh Sharma [2020] Supreme Court Of India, SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020 (Supreme Court Of India). 
Image Credits https://images.app.goo.gl/UxHUEJFKnBGvASgq9
                                   -Shramana Sengupta 


Assertion of Judiciary and its influence is referred to as judicial activism. It has also been defined as an overzealous judiciary. A criticism that we frequently hear about judicial activism is therein present in the name of portraying the provisions of the Constitution. Hence, the statements are that the judiciary very often rewrites them without clearly stating so. In this process, some of the personal views of the bench metamorphose into legal doctrines and constitutional values.

Another criticism in the name of judicial activism is, the theory of separation of powers is being conquered and the judiciary is destabilizing the authority of the legislature and the executive by intruding upon the spheres which are set aside for them. The active role of the Indian Judiciary, specifically that of the Supreme Court has been acknowledged by both the interior as well as the exterior parts, i.e. the countries of India. The independence which has been ensured through the constitutional provisions in support of the judiciary has afterwards strengthened the judicial interpretation that has contributed in the present status of the Indian judiciary. Yet, in this sphere of judicial activism, there are also a few misconceptions which need to be understood properly in order to welcome the activist role of the judiciary in India.

Furthermore, the term ‘Judicial Activism’ or ‘Public Interest Litigation’ has completely changed the functioning of the courts. The judiciary has been assigned this active role under the Constitution where it defined the ‘PIL’ or ‘SAL’ (Social Litigation) as a product of Judicial Activism. It means that the judiciary on its own wants to take up cases where it feels public interests are not maintained properly. In a country like India, there are several social mal-practices like untouchability, pollution, etc. Meanwhile, the judiciary thought that as a part of the society it had the duty to look after such problems.

A ‘PIL’ is a request before the court to investigate a matter which ensures social welfare and improvement. Sometimes, people who are suffering from a particular problem may not be able to file a case in the court of law because of their monetary problem or lack of awareness. The legal doctrine under this is that no one except the pretentious person can approach a court for a legal medication on the fields both in respect of the private and public law adjudications until it was subdued by the PIL wave. However, PIL can be then filed by any citizen on behalf of the troubled person because we can find that through the PIL, the court has increased the role of judiciary in the society where it has also encouraged the common citizens and NGOs to file petitions on behalf of the suffering populations.

Further, the certain aspects involved in the role of judicial activism, it makes us a sense equally regarding its number of consequences as well as its demerits. Hence, some of the consequences are –

• It has democratised the judicial system by giving a right to all people to approach the court.

• Judicial Activism has forced executive accountability, and because of the active judiciary the Ministers as well as the Government Officials have to do their duty properly.

• The court has asked the candidates who contests election to disclose their income and assets before the general people of the country so that people can know whom they are electing.

Certain demerits of Judicial Activism are –

• It has over-burdened the courts.

• It has created confusion between judiciary, legislature and the executive. The legislature and the executive have the allegation that the courts are interfering in their area of work and it is disturbing the balance of the power between the three organs of the government.

In the case of Dr. Ashwini Kumar vs. Union Of India Ministry of Home , the honourable Supreme Court held that, in provisos of the aforesaid edicts in the case, legal jurisprudence has developed only if compensation for the unconstitutional deprivation of basic right to life and liberty as a public remedy as well as to assert private law for reimbursement by tortuous acts of public servants. For grant of compensation, therefore, measures under Article 32 or 226 are entertained when infringement of Fundamental rights granted under Article 21 was established. Notwithstanding refusal of the prayer made by the applicant in this case, the bench clarified that this would not be in any way distressing the jurisdiction of the courts to deal with any individual cases of alleged custodial torture and pass suitable orders and directions in accordance with law.

Judges must be sometimes watchful and sometimes audacious. They must respect both the customs of the earlier period as well as the expediency of the present judges must reunite liberty and authority. Unbiased, autonomous and positive justice is the foundation of the competence of the government. Supremacy is the prerogative of the legislature for being a prevalently nominated body of the people. The executive is accountable for the proper enforcement of the laws which are made by the legislature. But when the legislative body does not bother about the rights and liberties of the individuals and the executive becomes unconcerned about the matters of implementations of the law, then the judiciary remains the only way out to act as the mechanism of social welfare to safeguard the justice for every citizen in the various spheres of their life, no matter whether it is child labour or human rights. Hence, judicial activism is nothing but a prolonged role of the judiciary as it encompasses a vicinity of the legislative vacuum. It is an effort to rejuvenate the system through the provisions of simple and inexpensive access to the citizens.

Judicial Activism has contacted much appealing in every part of our life. Be it the illustration of entrenched work, prohibited detainments, torment and sadism of ladies, the practice of various activities of the constitution, environmental issues, wellbeing, sports and so on and so forth the courts took within reach each of the cases and set down diverse decisions to secure the basic rights of every single human beings of the society. Be that as it may, the government officials and some constitutional specialists censure judicial activism and then again the legal counsellors and community has invited it with warm hands. It is very important to take a note of it that Judicial Activism has such a large number of merits yet, it has certain demerits. Here to note such points we can't lead the legislative body over the judicial premise as it were. Judicial activism has been admonished by numerous commentators, expressing that it is violating the decree of separation of intensity. Be that as it can, as judiciary being the protector and watchman of rights and last performer of the Constitution, it has vested with a great aptitude to strike down the various activities of the Constitution and existing laws. At present judicial activism has been all around largely by making use of India in order to explicate the various existing laws and constitutional arrangements. Judicial activism in India when stimulated with different nations of the world, at that time it was extremely ground-breaking and was acknowledged by generous sections of the society. Therefore, to accomplish its mission the judiciary has to exercise and develop its jurisdiction with courage, creativity and circumstances and with vision, vigilance and political wisdom in order to maintain a proper and adequate balance between of its working.

References 
  1. https://www.hindustantimes.com
  2. Pandey, J.N, (2019), 56th Ed.
  3. Writ Petition (Civil) No. 738 of 2016
  4. Image Credits https://images.app.goo.gl/E9QxRN71PrsKCqPu6
                                                                                                                                  -Sneha Mahawar


                                                    


Questions on the Ayodhya Dispute

The first question which arises when the topic ‘Ayodhya’ is introduced is that - ‘Was there a Mandir before or was there a Masjid before?’ The second question is to find out the ownership of the property, which is who the actual owner of the Ayodhya land is? Thirdly, why is this dispute so complicated? The fourth question brings into the picture the verdict of Allahabad High Court, and what was the verdict of the Allahabad High Court, and why was it discarded and not implemented? The fifth question is to know about the Archaeological Survey of India (ASI) report, which is What was the release of the Archaeological Survey of India? The sixth question is the real deal; that is what the demands of the parties of the matter of dispute are? The seventh question is, why did mediation fail? Lastly, what impact would the Supreme Court’s verdict create on the public? 

Introduction and Background of the Ayodhya Dispute

The Hindus considered Ayodhya as the birthplace of Lord Ram, the Hindu deity whereas, the Muslims considered as a place where there was a Mosque named Babri Masjid built as a tribute towards a Mughal Emperor, Zahir-ud-din Muhammad Babur (often called as Babur), by his commander Mir Baqi. The dispute began when the locals said that the Babri Masjid was constructed after demolishing a temple of Lord Ram. This led to a series of events that included violence, riots, massacre, demolition of the Babri Masjid, placing the idol of Lord Ram inside the mosque in the middle of the night, and many other illegal acts which increased the differences between the Hindu-Muslim community. Civil suits were filed in Courts, and many efforts were put in to resolve the dispute outside the Court, but all the settlements failed. High Courts decision of Faizabad and Allahabad were considered unsustainable, and a ‘stay’ was put on those judgements. Finally, the Supreme Court of India had to interfere with bringing the parties to a settlement. It suggested the settlement via a mediation panel, but that failed too. Lastly, after a hearing of 40 long days, the Supreme Court of India delivered its verdict. 

Timeline of the Ayodhya Dispute

1528 → Babri Masjid was constructed

1853 - 1859 → Hindu-Muslim riots began

1885 → First time Hindu-Muslim Ayodhya dispute case reaches Court

1949 → Idol of Lord Ram was placed inside the Babri Masjid.

1950 → A case was filed by Mahanta Ram Chandra Das on the grounds of ‘Right to Worship.’

1959 → A case was filed by the Nirmohi Akhara, stating the right to possess the entire area of the disputed property.

1961 → A case was filed by the Sunni Waqf Board asking for the right of possession of the Babri Masjid area.

1986 → Faizabad Court delivered a judgement that gave Hindus the right to worship in this area.

1989 → A case was filed under the name ‘Ram Lalla Virajman’. They also demanded possession over the entire area of the Ayodhya disputed property.

1990 → BJP Minister Lal Krishna Advani takes out a procession of Rath Yatra (chariot journey) from Somnath, Gujrat to Ayodhya, Uttar Pradesh.

1991 → To control tension and rage in the country, the Government of Kalyan Singh in Uttar Pradesh takes over the entire area of Ayodhya disputed land under its control.

1992 → Babri Masjid was demolished. (6th December 1992)

1992 → A Liberhan Commission was appointed to investigate the destruction of the Babri Masjid and people to be held responsible. (16th December 1992)

1993 → The Acquisition of Certain Area at Ayodhya Act was passed due to the acquisition of land in the disputed area. Ismail Faruqui, along with others, filed a petition challenging some aspects of the Act.

1994 → The Supreme Court in the Ismail Faruqui case held that mosque is not integral to Islam as namaz can be offered anywhere.

2002 → ‘Ayodhya Vibhag’ was formed to resolve the differences between the Hindu-Muslim community and to reach a permanent solution that shall benefit both the committees with mere talking and without any violence.

2002 → A three-judge bench was constituted in the Allahabad High Court to decide the possession or ownership of the disputed Ayodhya area. It asked the Archaeological Survey of India (ASI) to submit its report. (April)

2010 → The Lucknow bench of the Allahabad High Court delivered a historical judgement. (30th September 2010)

2011 → The Supreme Court of India put a ‘stay’ order on the judgement delivered by the Allahabad High Court. (9th May 2011)

2016 → A case was filed by Subramaniam Swamy in the Supreme Court for the construction of Ram Mandir on the disputed land. (February)

2017 → Then the Chief Justice of India (CJI), Supreme Court, Justice Jadish Singh Khehar, suggested resolving the whole Ayodhya dispute outside the Court with a settlement. (March)

2017 → Murli Manohar Joshi, Uma Bharti, Lal Krishna Advani, Vinay Katiyar were accused of criminal conspiracy for the demolition of Babri Masjid. (May)

2017 → Against the judgement delivered by the Allahabad High Court, there were 32 appeals in the Supreme Court. The Supreme Court of India stated that the hearing on this matter of Ayodhya dispute would begin from January 2019. (December)

2019 → A mediation panel was made by the Supreme Court of India. (8th March 2019)

2019 → The mediation panel submits the final report to the Supreme Court of India. (May)

2019 → Hearing of 40 long days at the Supreme Court. (6th August 2019 - 14th October 2019 → The Supreme Court gave its verdict on Ayodhya Dispute. (9th November 2019)

2020 → The Prime Minister, Narendra Modi laid the foundation stone for the Ram Mandir Bhoomi puja ceremony. (5th August 2020)

Analysis of the anecdote: The Ayodhya Dispute

Both the Hindus and the Muslims have different stories on the Ayodhya Dispute. The story that lives finally is that in the year 1528, during the reign of Zahir-ud-din Muhammad Babur (often called as Babur), a Mughal Emperor the Babri Majid was constructed by the commander of Babur, Mir Baqi as a tribute towards Babur. The locals of the area believed that the Masjid was built by demolishing a Mandir of Lord Ram. This led to the beginning of riots between the community of Muslims and Hindus during the years 1853 - 1859. To put a stop on these riots between the community of Hindus and Muslims, the British Government intruded and divided the entire area into two parts. The division was such that the inner area would be given to the Muslims, and the outer area will be given to the Hindus.

In the year 1885, the matter of Hindu-Muslim rage of Ayodhya reaches the Court for the first time when Mahanta Raghubir Das filed a case to obtain permission for constructing a chat (roof) in the outer area to worship. This plea was dismissed.

In the year 1949, an idol of Lord Ram was placed in the central part of the Masjid which was considered as an actual place of birth of Lord Ram. After the idol was placed in the Masjid’s central part, Hindus started worshipping that part as well. The agitation and rage between the communities increased at an increasing pace. To control the Hindu-Muslim situation, the Government banned the entry and exit in the entire area of dispute. The whole area was sealed and closed for the public either be a Hindu or a Muslim. Many civil cases were filed to remove the ban imposed by the Government on the disputed property of Ayodhya. The cases were, In the year 1950, Mahanta Ram Chandra Das filed a lawsuit on the grounds of ‘Right to worship’. In the year 1959, a case was filed by the Nirmohi Akhara, stating the right to possess the entire area of the disputed property. In the year 1961, a lawsuit was filed by the Sunni Waqf Board asking for the right of possession of the Babri Masjid area. The Faizabad Court delivered a verdict in the year 1986, which gave Hindus the right to worship in this area. The Muslim community got agitated at this verdict. It formed a committee ‘Babri Masjid Action Committee’ along with which to stay upfront Hindus formed a committee named ‘Vishwa Hindu Parishad’ for the formation of Ram Mandir.

Then in the year 1989, another case was filed under the name ‘Ram Lalla Virajman’. They also demanded possession over the entire area of the Ayodhya disputed property.

In the year 1990, then the Bharatiya Janata Party (BJP) Minister Lal Krishna Advani took out a procession of Rath Yatra (chariot journey) from Somnath, Gujrat to Ayodhya, Uttar Pradesh. This procession triggered religious violence, and as a result, Lal Krishna Advani was arrested in Bihar. The situation led to the killings of thousands of people due to the violence in the country. At that time, Lal Krishna Advani was the Senior Minister of Bharatiya Janata Party (BJP), and then the Government in power was of Vishwanath Pratap Singh. As Lal Krishna Advani was arrested, to revoke his arrest orders Bharatiya Janata Party (BJP) pulled its support from the government of Vishwanath Pratap Singh. This led to early elections, which were beneficial for the Bharatiya Janata Party (BJP).

In the year 1991, to control tension and rage in the country, the Government of Kalyan Singh in Uttar Pradesh took over the entire area of Ayodhya disputed land under its control.

The next most significant event took place on the 6th of December 1992. On this date, thousands of kar sevaks reached Ayodhya and demolished the Babri Masjid. In the same place, the kar sevaks constructed a temporary Ram Mandir. After the demolition of the Babri Masjid, the riots were at its peak in the country.

On 16th December 1992, a Liberhan Commission was appointed to investigate the destruction of the Babri Masjid and people to be held responsible. The government in power was the Congress government under Minister P.V. Narasimha Rao. The Congress Government proposed that a Mandir of Lord Ram, a Masjid, a library, a museum along with other facilities shall be constructed in the disputed area of Ayodhya. This proposal made by the Congress government was vehemently opposed by the Bharatiya Janata Party (BJP).

In the year 2002, the government of the Bharatiya Janata Party (BJP) came to power, and our former Prime Minister, Atal Bihari Vajpayee, started ‘Ayodhya Vibhag’. The main motive, objective, and purpose of forming ‘Ayodhya Vibhag’ were to resolve the differences between the Hindu-Muslim community and to reach a permanent solution that shall benefit both the committees with mere talking and without any violence.

In April 2002, a three-judge bench was constituted in the Allahabad High Court to decide the possession or ownership of the disputed Ayodhya area. The three judges appointed were Justice Sudhir Agarwal, Justice Sibghat Ullah Khan, and Justice Dharam Veer Sharma. The Allahabad High Court asks the Archaeological Survey of India (ASI) to submit a report on the investigation of the Ayodhya-Babri disputed area for the Court hearing. The report provided by the Archaeological Survey of India (ASI) forms a timeline stating that in the 12th century there was a mandir in the disputed area and in the year 1528, in the same area a masjid was constructed. It also stated that the duration between the 12th century and the year 1528 that is approximately 300 years, has no evidence of a standing mandir or a masjid on the disputed land. Hence, the final report stated that after connecting the dots and the interaction with the local public, it could be concluded that the Babri Masjid was constructed after demolishing the Mandir.

On 30th September 2010, after taking into consideration all the reports and evidence, the Lucknow bench of the Allahabad High Court delivered a historical judgement. The verdict delivered by the Lucknow bench of Allahabad High Court was that the entire disputed area should be divided into three parts. The first part of ‘Ram Murti’ was given to ‘Ram Lalla Virajman.’ The second part of ‘Sita Rasoi, Bhandara and Ram Chabutra’ was given to ‘Nirmohi Akhara.’ The remaining portion was given to the ‘Sunni Waqf Board’.

On 9th May 2011, the Supreme Court of India put a stay on the judgemnt delivered by the Allahabad High Court. In February 2016, Subramaniam Swamy filed a case in the Supreme Court for the construction of Ram Mandir on the disputed land.

In March 2017, then the Chief Justice of India, Supreme Court, Justice Jadish Singh Khehar, suggested resolving the whole Ayodhya dispute outside the Court with a settlement. Against the judgement delivered by the Allahabad High Court, there were 32 appeals in the Supreme Court by December 2017. The Supreme Court of India stated that the hearing on this matter of Ayodhya dispute would begin from January 2019. The Supreme Court of India composed a five-judge bench for the hearing of this case. The judges appointed were Justice Ranjan Gogoi, Justice Sharad Arvind Bobde, Justice D.Y. Chandrachud, Justice Ashok Bhusan, and Justice S. Abdul Nazeer.

On the 8th of March, 2019 the Supreme Court of India made a mediation panel of Sri Sri Ravi Shankar, Sr. Adv. Sriram Panchu, and Retd. J. FMI Kalifulla and asks to settle the matter via a Court regulated mediation.

In May 2019, the mediation panel submitted the final report to the Supreme Court of India. After the submission of the report by the mediation panel, there was a hearing of 40 days at the Supreme Court regarding the Ayodhya dispute. The dates were 6th August 2019 - 14th October 2019 of the hearing. After the hearing was completed, the Supreme Court reserves its verdict and asks the parties to submit ‘Moulding of Reli.’’. ‘Moulding of Relief’ means that in case the Court cannot provide the party with what it prays for, then what is the alternative or prayer or remedy they desire. Here, the Nirmohi Akhara was represented by Sunil Kumar Jain, Rajeev Dhawan represented the Sunni Waqf, and C.S. Vaidyanathan represented Ram Lalla Virajman.

Nirmohi Akhara stated that since 1934 the possession of the inner courtyard should be given to them, but they had no documentation for stating their claim. Sunni Waqf Board said that till the 6th of December, 1992 the disputed area had a Masjid, which shall be taken into consideration. It further stated that in the year 1949, in the middle of the night, the idol of Lord Ram was illegally placed inside the Masjid. The Sunni Waqf also stated that ‘Ram Chabutara’ is worshipped by the Hindus, which is the actual birthplace of Lord Ram, and they have no objections, but the inner courtyard shall be given to the Sunni Waqf Board. Ram Lalla Virajman stated that the disputed land also constituted Ram Mandir, which was demolished for constructing Babri Masjid. Moreover, they said that since 1949, when the idol of Lord Ram was placed in the Masjid, the Hindus have a right over the area. They further state that as per the report submitted by the Archaeological Survey of India (ASI), it shows that the pillars, slabs of Babri Masjid had sculptures of Hindu.

Hence, the Supreme Court of India stated that the possession or ownership of the land could not be decided based on hearsay or a mere report of the Archaeological Survey of India (ASI). The actual ownership of the property can only be determined based on evidence and legal principles. And evidence shows that even when there was a Masjid, no Hindu was stopped from worshipping in that area. The Supreme Court stated that the stay order was put on the judgement of Allahabad High Court as it was ‘unsustainable’ because no party asked for the relief which was provided by the Allahabad High Court. The Supreme Court declared that as the majority of the case is based on historical facts and figures, so relying on the probabilities, and it was settled that the Hindus have been worshipping in the outer area since 1857. The Court also declared that the stop on the Muslim reading namaz in the disputed territory had been imposed from the year 1949, which is deprivation of the right to worship.

Thus, the Supreme Court uses the power confided in it by Article 142 of the Constitution of India. It was held that the area of about 2.77 acres on which Babri Masjid was built would be given to Ram Lalla Virajman for constructing Ram Mandir, and the Sunni Waqf Board will be given an alternate land of 5 acres for constructing mosque through the Central or the State government. Both parties shall receive the allotted area on the same day. On 5th August 2020, the Prime Minister, Narendra Modi laid the foundation stone for the Ram Mandir Bhoomi puja ceremony.
Ayodhya Verdict

The Ayodhya dispute arises from the year 1528, which falls more than 500 years back in time. This is the second-longest case of the Supreme Court of India, which stretched its hearing for 40 days.

The Supreme Court of India stated the ratio-decidendi (the reason for deciding) for delivering such a verdict. Firstly, the possession or ownership of any land cannot be determined based on hearsay or a mere report of the Archaeological Survey of India (ASI). The actual ownership of the property can only be decided based on evidence and legal principles. Secondly, the evidence shows that even when there was a Masjid on the disputed land no Hindu was ever stopped from worshipping in that area. Thirdly, the Supreme Court declared that as the majority of the case is based on historical facts and figures so relying on the probabilities, it is settled that the Hindus have been worshipping in the outer area since 1857. Lastly, Muslims also have a Right to worship, which was illegally deprived in the year 1949 when they were asked not to read namaz in the disputed area. Lastly, after taking into consideration the ‘Moulding of Relief’ as stated by the parties and other legal obligations, this was the kind of relief which the parties prayed for and was within the legal boundaries of the law. The judgement delivered by the Supreme Court of India holds historical importance.

The Supreme Court of India held that an area of disputed land of about 2.77 acres would be given to the Ram Lalla Virajman (Hindus) for constructing a temple of Lord Ram and an area of about 5 acres of another land will be given to the Sunni Waqf Board (Muslims) through the Central or the State government for constructing a mosque. It further stated that both the parties would receive the allotted land on the same day to avoid any kind of conflict.

To implement its verdict, the Supreme Court of India uses its power vested in it by Article 142 of the Constitution of India, which states the power of the Supreme Court to pass such decree or make such order as is necessary for doing complete justice.
Conclusion

Hence, the “Ayodhya Verdict” is the second-longest case in history between the Hindu-Muslim community, which led to disputes, violence, and riots for over 500 years. The debate was for the ownership of a piece of land where Lord Ram was born, and Babri Masjid was constructed. After struggling through various reforms, the Supreme Court has delivered its final verdict, and the ‘Ayodhya Dispute’ has finally reached a conclusion.