Showing posts with label Politics. Show all posts
Showing posts with label Politics. Show all posts


In this article , author discusses about the concept of caste , origin of caste, caste as ‘system’ ,then author tries to scrutinize the reservation policy in India from the perspective of caste, pros and cons of so called positive discrimination, the two most important question upon which author focuses is – should caste system and reservation policy will go hand in hand in future , or will there be any positive attempt in making India reservation free? Is reservation policy right approach to end segregation in society? 

Concept of Caste and Origin of Caste System-

Concept of caste is not brand new in India; it is very much in fashion and globally accepted to be more than 3000 years old. In India, caste is the way of social stratification of individual and family. Description of Origin of caste can be in oldest legal text of Hindu law Manusmirti which acknowledges and justifies the caste system as the basis of order and regularity of society[i]. In Hindi , caste is referred as ‘Jati’ an when we talk about caste as the system we take all the factors of caste into consideration as it divides Hindus into four main castes as – Brahmin, Kshatriyas, Vaishyas and the Shudras. It becomes very important to understand the belief system itself upon which whole caste system is based, whereas many believes the caste originated from Hindu god of creation lord Brahma, Brahmans found their evolution from brahma’s head, Kshatriyas found their evolution from brahma’s arms, Vaishyas found their evolution from thigh of brahma’s thigh and shudras found their evolution from brahma’s feet. 
Work division was based on this belief system only ,i.e. anyone from Brahmins caste can give and take education , in society Brahmins are next to god in the way people from lower caste used to follow the sorcerous act as depicted by them , they were the major command in society even for Kshatriyas and Vaishyas as role of Kshatriyas was associated with ruling of the province so in order to conquer over others provinces they used to follow the tactics of Brahmins , Brahmins also used to act as a judge in civil and criminal cases . working of vaishyas were associated to agriculture, lending of money , trading , whereas there was no particular working assigned to sudras except to serve above three higher caste , mainly sudras worked as bounded labors , had no access to education and they were given only sustenance salary ,so that they can only survive and work. The main castes were further divided into about 3,000 castes and 25,000 sub-castes, each based on their specific occupation. Outside of this Hindu caste system were the achhoots - the Dalits or the untouchables[ii]. Dalits are the people who were denied access to live even with in society so they used to live outside the society; they were treated as impure and excluded from four fold Varna system. 
Now it becomes more important to understand the analogy between jati (caste) and Varna. Varna and jati are the different units of social organization as concept of Varna was based on theoretical conception on occupation but in Indian context caste and class in India are intervened/overlap. It has been said class is based was totally based on structure while caste was totally cultural and within the family ‘kul’[iii].

Rationale Behind Caste Based Reservation-

British really knocked caste system for six and had putted feet up after introducing caste based reservation policy in India. As we have seen earlier that lower caste people were more oppressed and denied basic human rights , respect and dignity ,whereas people of higher caste became despotic and were unapologetic in terms of sanctioning lower caste people. 
Lower class people were regarded as evil to society as they were usually associated with crime, robbery and plunder which lead to backwardness of people belonging to lower caste. society was changing as dark age ,industrialization, enlightenment age and then modern age changed the whole thinking process , in modern age focus was laid down on preservation of human rights, upliftment of backwardness (economic, social and political), education . 
View of people towards backward caste has still not been changed as several of cases can be seen on daily basis on caste discrimination. There was a case where upper class people objected to the Dalit groom sitting on the horse and pelted stone[iv] , people of lower caste cannot share food , even cannot sit before upper caste people , ironically Shri Ramnath Kovid who is a president of India was denied entry to visit temple[v], so need of reservation was felt in order to assure equality , dignity to lower caste people, Often criticized for being unjust and regressive, it remained virtually unchanged for centuries, trapping people into fixed social orders from which it was impossible to escape. B.R AMBEDKAR who authored the Indian constitution was a Dalit leader, and he worked for betterment and fought against discrimination prevalent against lower caste people. The approach of reservations is being utilized as a system to conquer segregation and go about as a compensatory work out[vi].

Constitution and Pros and Cons of Positive Discrimination-

Indian constitution provisions ban practice of discrimination on the basis of age, sex, caste, religion, or place of birth under article 15. Our Constitution ensures equity and fairness of chance to everyone and so it turns into an obligation of state to make a move to accomplish this goal. Constitution also recognizes that equal opportunity means competition between equals and not unequals. Article 341 of the Indian Constitution designates certain disadvantaged tribal and caste populations as Scheduled Castes and Tribes. The Constitution directs that “... the state shall promote with special care the education and economic interests of the weaker sections of people, and in particular, of the scheduled castes and scheduled tribes and shall protect them from social injustice and all forms of exploitation.”[vii] DR. B.R AMBEDKAR IN HIS undelivered speech “Annihilation of caste” focused upon abolition of untouchability , he also said out casted people can only be respected if whole caste system get abolished .


Politics plays very important role in making a society evil and crime free but stratification on the basic of caste is within the roots of Indian politics. Political parties demands votes on the basic of caste, for example, in Uttarpardesh yadav’s (obc) are in majority so samajwadi party gets maximum percentage of votes from yadavs only , same equation applies to bahujan samaj party , they cover all Dalit votes, but the time is changing , 
India is secular in many terms not just in religion, as we have also article 18 in Indian constitution which abolished the conferring and recognition of titles, now a days people are voting on development and growth rather than just mere on caste basis which is a positive sign for any country . Now if we see global view of reservation policy , the main object was to provide basic human rights and assuring dignity to backward classes which has not fulfilled and not to forget the most important aim was to provide level playing field to scheduled caste, scheduled tribe, and other backward classes by positive discrimination. 
Somehow political parties have maligned the basic object to provide reservation as it questions meritocracy of the country. We cannot afford to uplift the backward at the sake of merit being a developing country and also we have taken economic status as a deciding factor for assuring dignity in society which is again out of the box as in reality it is not working, now there are backward class people in every sector i.e. private and public, living dignified life, we as a country are still giving them reservation , it questions why should the present youth generation be the victim of past tragedy over dalits and untouchables , now a days intercaste marriages are prevalent in society , people makes friends without falling into the caste theory , we are now concentrated towards artificial intelligence , nuclear energy, space technology where there is no time to look into the caste system . Author feels this is the right time to say good bye to caste based reservation policy , as it will bring equal treatment to equals and unequal treatment to unequals . 

Author feels reservation system is positive up to an extent , it is not exploited. There should be reservation only on one basis i.e. vulnerability as we are two much concentrated in caste that we do not bother if someone is sleeping on footpath is human, so in conclusion author says that we need to see things from broader perspective , for him equal playing field is no reservation to no one and for that we as a country need to work upon. There should be proper demarcation between privileged and unprivileged , rather than in between ‘Thakur’ and ‘chaamar’ as now a days government have proper plans and policies for upliftment of poor, unhealthy and needy ,the part where we are lacking is proper implementation due to various reasons. Now author throws some light on second question as mentioned in introductory part, he says reservation policy is not helping positively with the segregation of caste part, so what else we can do is that we can have commission at every level who will spread awareness about social evils as many poor people do not aware of their rights and duties ,they think whatever they are doing and into is punishment of previous birth. Author concludes on high note that India without reservation will be India we dream for. 

Meaning of Custodial Violence

The term ‘Custodial’ providing protection, care, supervision, or guarding. And the term ‘Violence’ means action which causes destruction, pain, or suffering. The primary meaning of the term ‘Custodial Violence’ is torturing, the violence of an individual, or a group of persons while in the custody of the police or judiciary. Custodial violence generally results in the death of the victim or leaves the victim with a traumatic experience. Custodial violence is the torturing of an individual by the police officials. As per the reported statistics, there were more than 1700 custodial deaths in India.

After the death of Geoge Floyd in the U.S. and the death of Jayaraj & Fenix in Tamil Nadu, India has raised concerns about custodial death. Moreover, regarding the third-degree torture of police, a debate has arisen. The death of George Floyd in the United States led to protests which resulted in the introduction of the Police Reform Bill by Congress. Along with the Bill, a discussion has been conducted on the setting up of a National Database which would register the misconduct of police officials.

In the year 2010, Anti-Torture Bill was proposed and discussed at the Parliament but failed to become legislation to date.

Prevention of Torture Bill

The first initiative to form an anti-torture law was taken by the United Nations namely, U.N. Convention Against Torture, 1975. India is a member of the United Nations and is a signatory, for application of any law by the United Nations in India, the Parliament has to make legislation for it.

To make U.N. Convention Against Torture, 1975 a law in India, the Prevention of Torture Bill, 2010 was introduced in the Lok Sabha.

Prevention of Torture Bill, 2010 contained the punishments to be awarded to the public servant for committing the act of torturing. This bill explains the word ‘Torture’ simply and broadly and states that if a public servant with the purpose to derive information or confession, grievously hurts, or tortures mentally or physically, life, limb, health, of an individual, or third person, then it will be regarded as torture. And, the punishment awarded for torture is 10 years of imprisonment. This bill was successfully passed by the Lok Sabha. The Rajya Sabha sent this bill to the Rajya Sabha Select Committee Suggestions for further consideration.

The Rajya Sabha Select Committee Suggestions provides with certain suggestions such as firstly, expanding of the definition of the term ‘Torture’; secondly, if torture is inflicted on women and children then the punishments should be made severe; lastly, to set up an independent authority to investigate all the activities and provide victims with their reasonable compensation.

After including all the suggestions in the bill, the bill was again presented in the Rajya Sabha but it yet failed to pass repeatedly.

In 2017, the Law Commission stated that they are considering this bill seriously but to enforce this bill as legislation, changes have to be made in the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act.
Major Judgements by the Supreme Court on Police Violence or Custodial Deaths

The Hon’ble Supreme Court of India has pronounced several judgments where they have criminalized police brutality and suggested that police officers may be punished with the death penalty for these gruesome acts.

Rudul Shah vs. State of Bihar, 1983

In this case, the petitioner, Rudul Shah was illegally imprisoned for 14 years. A writ of habeas corpus was filed demanding his immediate release.
The Supreme Court held that if by the wrongful act of the state any right of an individual is violated, then that individual will receive compensation.

Saheli vs. Commissioner of Police, 1989

In this case, the police official in connivance with the landlord misbehaves with the tenant mother and her minor of 9 years due to which the minor dies.
The Supreme Court awarded the mother with Rs. 75,000/- compensation and gave the option to the Delhi Administration to recover the amount from the police official.

Nilabati Behera vs. State of Orissa, 1993

In this case, Suman Behera was arrested by the police officials, and the very next day of her arrest her body was found at the tracks of a railway station with multiple injuries.
The Supreme Court awarded the petitioner with a compensation of Rs. 1,55,000/- and also stated that providing compensation is the responsibility of the state and not the police officers.

Joginder Singh vs. State of Uttar Pradesh, 1994

In this case, the Supreme Court held that if an arrest or detention takes place with a justification then it would be illegal. It further stated that police officers have powers to arrest but just to use this power they cannot arrest an individual, to arrest an individual a reasonable justification has to be given.

D.K. Basu vs. State of West Bengal, 1997

In this case, the Supreme Court recognised custodial violence, and police torture and stated that custodial violence is an attack on the dignity of a human being. The Court further stated that even after enacting recommendations and policies, torture and death in police custody is increasing at an increasing rate. Thus, the Supreme Court gave 11 guidelines to be followed while arresting a person. The 11 Guidelines issued by the Supreme Court in D.K. Basu v. State of West Bengal consists of various rights that are available to every arrested person in India.

Guidelines to be followed by policemen while arresting

  • The Police Personnel who is handling the investigation or arrest should carry clear identification and name tags with their designations.
  • The Police Personnel should also maintain a register that would record all the information related to the officials who are handling the investigation, or arrest.
  • The Police Personnel who is arresting an individual should maintain an arrest memo that would contain all the details related to an arrest such as the signature of a witness, time of arrest, date of arrest, and place of arrest. 
  • Any relative or friend of the individual who has been arrested should be informed about the arrest and detainment of that individual.
  • An official diary also has to be maintained which would record information related to the handler of the investigation, or arrest, and who is informed about the arrest, etc.
  • While arresting an individual, if the arrestee has any major or minor injuries, it would be written in the inspection memo. 
  • The inspection memo has to be signed by both the police officer and the arrestee and the arrestee would be provided with a copy of the inspection memo. 
  • After an individual is arrested, every 48 hours a medical examination will be conducted. 
  • A copy of all the documents such as an inspection memo, arrest memo, and medical examination report will be sent to the magistrate for their record. 
  • During interrogation, the arrestee can meet and consult their lawyers. 
  • Every district or state headquarter shall have a police control room, where all the information related to an arrest should reach within 12 hours of an arrest. 


Hence, the glorification of police brutality is a usual sight on the Indian television series and Bollywood movies. High power action movies, specifically based on Police brutality, have earned Rs. 200 Crore on box office, thus normalizing the trend of custodial violence. In this article we discussed three important things, firstly, a discussion around the Prevention of Torture Bill, 2010 in India; secondly, important Supreme Court Judgments against Custodial violence and Police Torture; lastly, guidelines issued in D.K. Basu v. State of West Bengal which is to be followed by every police official while performing arrest.



There is a well known maxim known as ‘Audi Alteram Partem’. The meaning of this maxim is, ‘Hear the other party’. Unfortunately, this principle has nearly been forgotten in India. There are a lot of incidences of encounter killings by the police in the country recently. The families fear that if their beloved is taken into custody for investigation by the police, he might not be brought back alive. These officials are taking up the administration of justice in their own hands causing injustice to the accused persons. Article 11 of the Universal Declaration of Human Rights provides that, Each person being charged with any kind of penal offence is presumed innocent in the Court of law until proven guilty and the accused also has the right to use all the defences available to him. Killing a suspect without giving any of the defences available to defend him/her who might actually be an innocent having to do nothing with the charged offence is inhumane and arbitrary. 


Extra-judicial killing being illegal, no one has the power to take the life of any one irrespective of the grievous or the most heinous crimes committed by him/her. However, there are certain exceptions given to this principle where a person will not be held liable for causing the death of the other person. The following are some enabling provisions which protect the people who deal with certain criminals which may also result in his/her death.

Right of private defence:

Sec. 100 of the Indian Penal Code(IPC) provides that a person can exercise his right of private defence to the extent of causing death to the other person if there is a reasonable apprehension in the mind of the person that there is a threat to his life. In this case, apprehension is enough and it is not necessary to actually get hurt to exercise his/her right of private defence. In the case of Extrajudicial execution victim families association v. Union of India (2016), it was held that the right of private defence is available only to defend oneself when there is an immediate danger to him/her. It cannot be used to retaliate nor can it be used when he/she feels that there might be a threat to life in the future.

Authority given to the police officers:

Sec.46 of Criminal Procedure Code (CrPC) provides the procedure on how the criminals should be arrested. Sec.46(2) of CrPC provides that if a person getting arrested for any crime resists or attempts to evade the arrest, the person who is authorized to arrest the person can employ such means necessary(which may also extend to causing death) to effect the arrest. Whether the means employed was necessary will depend on a reasonable man having no intention to cause any injury would have employed the same means. Sec.46(3) of CrPC provides that there is no right to cause death to any person other than a person accused for an offence punishable with death or imprisonment of life.

Culpable homicide not amounting to murder:

Exception 3 to Section 300 of the Indian Penal Code provides that a culpable homicide is not murder if a public servant while discharging his duties towards advancement of public justice exceeds the power given to him and causes the death of a person which he believes to be lawful and necessary in the present circumstance without any ill-will or bad intention towards the person whose death is so caused.


Extrajudicial killings except the exceptions provided by law are violative of the constitutional provisions. The Constitution of India guarantees some basic rights and safeguards to all its citizens and expects the State to uphold it. Of all the rights provided, Right to life is a basic and notable right provided by the Constitution. This is because if there is no life, then there can be no enjoyment of any other rights provided by law. Art. 21 reads as follows:
No person shall be deprived of his life or personal liberty except according to the procedure established by law.
In Maneka Gandhi v. Union of India, the Supreme Court laid some guidelines with respect to the procedure established by law. They are as follows:
1. There must be a valid Law
2. The Law must provide a procedure
3. The Procedure must be Just, Fair and Reasonable
4. The Law must satisfy the Requirements of Art. 14 and Art.19
Also in the case of Anita khushwaha v. Pushap sudan, it was held that access to justice is a fundamental right considered under Art. 14 and Art. 21 of the Constitution. If any person is denied of this right, he can get relief by approaching the Court through Art.32 of the Constitution.
In the case of Kartar Singh v. State of Punjab, it was held that one of the most important principle of Natural justice is Audi Alteram Partem i.e. to hear the other party. There are two facets to this principle. The first is issuing notice which is followed by hearing.
When the police authorities take up the administration of justice in their own hands, they neither follow any procedure to deprive the accused of his life nor the procedure adopted is fair and reasonable and therefore it clearly cannot be called as a procedure established by law. Thus, extrajudicial killings are unconstitutional since it violates Art.21 of the Constitution.


National Human Rights Commission have issued guidelines relating to encounter killings to all the States and Union territories and they are required to strictly abide by it.

Registration of FIR:

First Information Report (FIR) should be recorded at the earliest when information regarding any encounter deaths was informed to the police in-charge.


Receiving information regarding the encounter killing is sufficient for the police to start the investigation. The police should first analyze the facts and circumstances to identify if the informed offence was committed and if so by whom it was committed. If the accused in a police officer in the same station then the case should be transferred to an independent investigation agency.

Compensation to the aggrieved:

The compensation shall be provided to the family of the victim only after the case ends in conviction and all the police officers accused of illegal encounter killing have been found guilty and prosecuted in the Court of law. In 2010, further extension was given to the guidelines which are as follows:

Magisterial enquiry:

An enquiry by the magistrate should be held within 3 months if a death occurs in the course of police action. The first report of the enquiry should be submitted to the NHRC in all cases of similar deaths within 48 hours. The second report regarding it should be submitted within 3 months. The report should contain the detailed information regarding the enquiry by the magistrate. The report should also be annexed with the post mortem report of the victim.


These arbitrary encounters by the Police should never be encouraged by the public no matter how horrifying the criminal was. The media should also be very careful in taking films starring police characters. It is not very wise of the media to take films showing an act of the police character taking the administration of justice in his own hands and exiling the villains as an act of heroism. After all, he has just done the same act which the criminal did! Even if the police authorities have overwhelming evidences against the accused, it is not the duty of the police to kill him just because he is a dreaded criminal. The work of the police ends with arresting the accused, providing the evidences and producing them for trial. The policemen should be charged with murder for any arbitrary killings in the name of encounters and they should also realize that gallows await them for such merciless murders.




During the Covid-19 Pandemic there were several problem of the migrant labor came in the country. To solve the issue a fund was introduced by the Government of India PM CARES Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund. It was introduced on March, 28 20201 on which Prime Minster announces the setting of the PM’S CARES FUNDS. This helps to restore the people affected from the Covid-19 Pandemic in India. The PM CARES FUND is public charitable trust Fund under the Government. The fund can receive voluntary contributions from any of the individuals and organization from all over the world. The entire country supported the government and donated the huge amount to help in fighting this pandemic. 

What is the significance of PM Cares Fund?

The PM Cares Fund is being highlighted as the backbone in this whole pandemic situation. The main agenda of this Fund is to make things require when there is an occurrence of any kind of nature of human calamity in the country this will help in development of the facilities the construction of health care and medicine facilities in the country. This fund will be active while any of such occurrence for the task of developing infrastructure along with financial and technical assistance. There are several other funds that are similar to it like natural disaster relief fund, CM Relief fund which is specialized for the Specific State and Prime Minster National Relief Fund (PMNRF). PMNRF is used to provide immediate relief to the families of those killed in 1) natural calamity, 2) victim of major accident or riots, 3) Support Medical expenses for acid attract victims, 4) and other3. The PM cares fund is similar to the PMNRF. The Prime Minster is the Ex-office chairman of the PM cares funds. The three eminent people are in the committed the Current Defense Minter, Home Minster, and the Finance Minster. The funds will be audited by the Independent Auditors selected by the Board of Trusties who are specialized in the field of the Research, Health, Science, Social work, Law, Public, Admission, and philanthropy2.

Clash between the PM Cares Fund and Right to Information Act

After PM Cares Funds more than the quarter from all over the world started to contribute their money. A less than $11.27 Bn (9,677 cores) came from the funds which was enough for the over 21.5million Covid-19 tests4. Based on this government statement it resulted that the utilization of the money cannot be known to anyone. People were eager to know that what happens to all the money which was contributed, how much has been used and how the money are been used for the work many petitions were filed in the court but the petitions were rejected saying “PM CARES is not a public authority under the ambit of Section 2(h) of the RTI act, 200055. The people started to question the judiciary and there several discussion, several polls were questioning the decision of the court and had a question that does the PM cares fund does not come under RTI act, 2005.
Firstly, RTI is the act of Parliament of India which is right given to every citizen of India right to information under Freedom of Information Act, 20026. The court rejection many petition that PM Cares Funds does not come under Public Authority and cannot come under Right to Information Act,2005. The section defined under section2 (h) of Right of Information Act, 2005 states that “the act defines what constitute “public authority”- A body established by a) the constitution, b) any law made by the parliament, c) law made by the state legislature, d) a notification or order issued by the government7. The definition of the public authority is definite to bring the PM Cares Funds but there are many other reasons to make it under the Right to Information Act, 2005.

Why should PM Cares fund come under RTI?

PM Cares Funds was set up by the government and so it does come under the part of the government of India because the office of the PM Cares fund is in Delhi where there is the office of the Prime minster. The Prime Minster is the Chairman of the PM’s National fund PMNRF and also the chairman of the PM Cares Funds. In 2009 then Chief information Commissioner Habilluah passed an order that “since PMNRF information is held by the PMO as a public authority, they are obliged to share it with citizens under the RTI act.”10 So, PM Cares Fund should also come under the Right to Information Act, 2005, as it is also controlled by the Prime Ministers Office.
On the 30 march, 2020 a video conference was held by the Prime Minster with the heads of the Indian ministers for the promotion of the PM Cares Fund in the foreign countries for the large number of the donations. Can the government officers and the government platform be used for the purpose of the promotions for any type of the donations? Look at the more transparency in the bill the High commissioner in the Singapore allows official publicity of to the PM Cares Funds on their official website and on the social media pages and the Indian Embassy of the moocow also accept the proposal to promote the PM Cares fund as stating it as the Charitable trust. Does any other charitable trust would get the publicity on the Indian embassy?
The PM Cares Funds website is under the domain name of the “” but the government guild lines says that the domain of the “” can only be allowed to six categories of office or public authorities: a) apex office, b) department of government) states and union territories, d) offices of parliament e) judicial bodies all legislature and government institution11. So, however PM Cares Fund get managed to get domain name when it does not fall in any of these categories. Just after the 2 Days after the announcement of the government ordinance about the PM Cares Fund an amendment was made under the Income Tax Act, 1961. The amendment stated that the donation made to the PM Cares Fund would be legislated for the 100% tax detection. This was the tool which was used by the Government to promote the PM Cares Fund.
Just after the launch of the PM Cares Fund the several corporate firma donated the huge amount to the PM Cares Funds for an instance- the power finance corporation with multiple public sector banks and enterprise together donated Rs 200 core to Pm Cares Fund. The ministry to defense also contributed the 1 day salary of all the employees which roughly estimated to be Rs 500 cores. This all of the money contributed is the public money and still this does not come under the categories of RTI. No one will ever be able to know how much is being contributed and how is utilized in what ways.


Amongst all the classic argument which advocates above about the transparency of the bill and having an open government and it’s an appeal to a “people’s right to know”. I consider that two prominent ideas to make government democratic one is to be right to know government held information. I argue that the government has even put a limit of secrecy by not making it a public authority. This is where the judiciary needs to make a proper interpretation of law of what can come under categories of the public authority and what not. If PM Cares Fund does have to come under the Right of Information Act, 2005 then this would be the violation of the Freedom to Information8 which will be in the violation of the Human Rights which should be given effect at the national level through comprehensive legislature .The political authority of the parties should not use their power in the independent power of the democratic state9.


PM Cares Funds are still under many questions. Before, PM Cares Funds there was PMNRF fund then what was the need to make new fund and PMNRF does come under the Right to Information Act, 2005 then why does PM Cares Funds is not counted as Public Authority? There are several cases pending many Public ligation are filled in the courts questioning the same. Everyone has different perspective towards this Bill and its constitutionality whether you are in the favor of the bill for the work it is doing and it made for the benefit for the citizen of India or you would give it a negative remark for the not having transparent the bill.


4. Indian speed news
5. No. RTI/4506/2020-PMR
7. Right to Information Act,2005
8. For the history of the concept, see M- chael schudon, The Rise of the Right to know: Politics and the Culture of Transparency 1945-1945( Harwad university press 2016)
9. Mark Fenster, The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press,2017)
11. Ref :(1) Order No. 7(3)/04-CC&BT

 What is Unlawful Activities Prevention Act (UAPA)?


When too much power is vested in the hands of the government, there is a possibility of misuse of such power. A democracy functions efficiently only when the people of the country keep the government in check. When laws are made which take away such power from the people, they also take away the very essence of democracy. A democracy only stands true to its meaning when the government is of the people, by the people and for the people. 

When we think of the Emergency in India, one of the most prominent recollections we have is, of hundreds of people being jailed and being tagged as anti-national under the Maintenance of Internal Security Act (MISA). They were considered a threat to national security. However, these people were only criticizers of the government. It has been 43 years since the Emergency was lifted. Governments of different parties and different combinations have come to power. Unfortunately we have a very similar law which has been amended and passed in Parliament in 2019- The Unlawful Activities (Prevention) Act.

Tracing the Genesis of the Act

In the year 1967, the Congress led government enacted the UAPA which allowed the government to put so-called reasonable restrictions on the right to association and gave the government the right to deem any organisation unlawful on the basis of their activities. It was supposed to have been enacted in the interest of the sovereignty and integrity of India. The UAPA was always viewed as a draconian law as it allows arbitrary restrictions on Fundamental Rights of citizens, which according to the government are reasonable restrictions

In 2019, the NDA led government amended the UAPA which allows the Central Government to declare any individual or person as “terrorists”. 

Inherent Flaws in the Amended Act

The government said that this Act would help in reducing terrorist activities across the country. The Act also does not define the word “terrorist activities” which allows room for interpretation. This is where the problem actually lies. 

The law gives unrestricted power in the hands of the government under the garb of national security which instead of protecting the citizens, targets them for even carrying out democratic activities. It is being used to criminalize any movement or protest which is against the narrative of the ruling party and can be used to target dissenting citizens. The centre has the power to interpret the words to its own convenience and punish citizens. Since it is an ill-defined law, loopholes can be found and can be used to the centre’s advantage. An individual can be called a “terrorist” by the Government of India without adequate evidence. This will harm the reputation of a person in society. A tag of “anti-national” and a “terrorist” will always linger on them.

The UAPA also violates the Fundamental Right to Fair Trial and the presumption of innocence which are the backbones of the legal system in India. Every individual is innocent until proven guilty. This makes it next to impossible for the accused to secure bail as he is required to prove his innocence even before the beginning of the trial. The burden of proof lies entirely on the person who has been arrested as the Act provides no provision for him to challenge the government’s claim before they publish it in the Gazette. Such sweeping powers in the hands of the centre can prove to be troublesome. The act weakens the federal structure of governance in India and gives too much power to the centre. 

While it is essential to ensure stricter laws in order to combat terrorism, it is the duty of the Legislature to ensure that laws that are enacted are not in direct contravention with the Fundamental Rights of the citizens. The UAPA interferes with the right to life and personal liberty (Article 21) as guaranteed by the Constitution. It takes away the right to freedom of speech and expression (Article 19). At an international level, the amendment violates the Universal Declaration of Human Rights and The International Covenant on Civil Liberties and Political Rights.

A recent incident when the UAPA has been used rampantly was during the anti CAA-NRC protests. Student leader, Umar Khalid and Jamia Islamia students, Safoora Zargar and Meeran Haider were detained for allegedly being involved in the Delhi Riots. Prominent persons such as Anand Teltumbde and Gowhar Geelani have also been arrested under the UAPA. The act does not treat Indian citizens as citizens of a democracy. The question, therefore, is that, are these arrests even constitutional if they are in violation of the Fundamental rights of citizens. (Safoora Zargar has been given bail on Humanitarian Grounds as she is pregnant)

While national security and the protection of citizens are of great importance, the Legislature must ensure that the Civil Liberties of citizens are not being suppressed. Unfettered power in the hands of the Centre is worrying and can infringe upon the rights of citizens. While the government has time and again reaffirmed that the amendment will reduce terrorism and keep it in check, it gives the government absolute power to punish anyone without sufficient evidence. It is necessary that the government is answerable to its citizens and that transparency is maintained in the system in order to ensure that democracy is in check.

This article is authored by Aradhana Pillai

Image Credits: Jagran Josh

- Anshu Rathore

A devastating global pandemic which wreaked havoc all around the world and is responsible for millions of deaths worldwide, not in a contemporary history we have seen this number of deaths and devastation to human life due to a virus, though from where this virus gets originated it's still yet to be established. Its wreaked havoc in every aspect of life whether it is personal, social, or economic. The virus almost put all the countries to stand still with India no exception.

 The International Monetary Fund says that the global economy will shrink by 3%, worst since the great depression. India has been one of the countries that have been worst affected by coronavirus pandemic with over 2.59 million confirmed cases and over 40,980 deaths so far, the country experienced lockdown from the late march and subsequently extended several times, pandemic like this has put front all the societal and political fault lines that we have in India, instead of uniting us as a nation pandemic seems to be opened up the many wounds that already exist in our society. Since in India everything is largely being influenced by politics the conversation around coronavirus has shifted from 'mortality rates' 'poor health infrastructure' 'Infection' 'labor crisis' and 'morbidity rate' towards the completely trivial and unimportant things and politicians who rule over us are getting away with much accountability. In India, three posts of the country exercise the highest amount of power District Magistrate at the local district level, Chief Minister at the state level and Prime Minister at the central level and it only led to this coronavirus pandemic which showed us how inefficient our government structure is from top-down, the socialist view of the state which every political party has largely been propagated since the independence, where instead of delegating the responsibility the power is hugely concentrated, this pandemic has revealed the fault lines in such type of view, this led to asking the question is the pandemic has differently been handled if the government had more liberal approach? As we can see various states in the country have started amending their labor laws to bring back the economy on track.

In India the power is hugely concentrated on the three government structure that is Prime Minister, Chief Minister and District Magistrate and all these three government structure have failed to protect its citizens from this pandemic, this pandemic has given the already powerful Centre even more authority to impose according to its own whims and fancies for instance Modi Government invoked the 1897 Epidemic Diseases Act and Disaster Management Act of 2005 to give itself extraordinary power to impose the lockdown, the states are going around in their own way to imposing their own lockdown rules even when Centre issued guidelines to ease the restrictions, states like West Bengal, Madhya Pradesh and Mizoram extended their lockdown, even during the pandemic instead of cooperative federalism we are experiencing tussle between state and Centre for instance the mismanagement of handling worker migration gives us some clear perspective how all-mighty governments have failed in front of adversary. 

Health care system in India: while private health care provided 70% of services, In India, the public healthcare system is inefficient and lacks funding, India spending on public health care system is less compared to other lower-middle-income countries according to national health profile of 2018, the data of 2015 shows that India spending on public health was 1 percent of GDP while the other lower-middle-income country was 2.5 percent of GDP, primary health care system in India is in shatters we can understand from the given fact is that in primary health system only 15% of all morbidities which people seek care. Various public policy documents like the High-Level Expert Group, plan documents and the National Health Policy 2017 recommended that there needs to be a coordinated effort from both the Centre and states in, particularly primary and secondary health services.

While private health services account for over 70% of the health services providers in the country but their role in handling the pandemic is not appreciated. The government needs to fund more in public health and public funding should be increased by 2.5 percent of GDP as envisaged by the National Health Policy, 2017. Coordination among states and the Centre in the spirit of cooperative federalism should be encouraged and the state governments have the major role to play here in establishing and creating dedicated public health care at state, district, and local levels.

Labor Crisis: This Pandemic has brought back focus on the condition of workers in India and worldwide, as in India we have been seeing how the worker crisis exploded and how our authorities are completely clueless on what should have been done. The International Labor Organization in its report describes the coronavirus pandemic as the "worst global crisis since World War II" worldwide over two billion people work in the informal sector particularly in emerging and developing economies are at risk. As in India over 90 percent of workers are in the informal economy, about 400 million workers in the informal are at risk of falling into poverty during this crisis, as we have been seeing the scope of workers migration in the country, workers are desperate about their future and uncertainty of their jobs they started moving back to their native places, and it has shown us even after this many years of Independence and various political slogans if 'Garibi Hatao' workers' conditions are far away from living a dignified life.

With sensing the Covid-19 Pandemic various state governments have altered the labor laws which were giving certain securities to the workers, now the workers have to work an extra hour, companies and manufacturing industries do not have to follow certain labor laws, and state like Uttar Pradesh had gone further by issuing an ordinance for the suspension of the application of labor laws in the state with few exceptions such as laws related to bonded labor, ex gratia to workers in case of work-related disabilities and diseases and timely wage payments. While reformation and consolidation of various labor laws are necessary but completely abolishing the labor laws should not be appreciated as it will give incentives to companies and manufacturing industries and factories to exploit the already impoverished workers, the political class of this country has shown a short-sighted and parochial approach while dealing with the issues of workers during this pandemic

The apathy of Judiciary: while the legislature's role in handling this pandemic is severely criticized, we also need to look at the role of the judiciary during this pandemic. The pandemic has led to the closure of courts unless it is an urgent matter which is worth hearing, which is in itself an ambiguous, workers not getting proper shelter, food and security during this pandemic should also be considered as an urgent matter by courts we have seen how abysmal various governments response to this labor crisis. The courts should have taken steps to protect the rights of workers. As there have been many media reports which suggested that spike of police brutality in enforcing the lockdown during this pandemic, the judiciary should have spoken up and should have provided proper checks and balances to the legislature and executive when they use their power arbitrarily, the supreme court has consistently declined to entertain cases concerning migrant laborers since march in one plea seeking the free transportation for workers to their native states, the apex court also disposed of another plea for payment of minimum wages to migrant workers during the pandemic without giving proper and directions, the top court left it to the concerned states to take action, Senior Advocate Dushyant Dave while commenting on the what role judiciary has during this pandemic said: "judges cannot sit in the ivory tower and be blindfolded to the miseries of the citizens of India the constitution maker wanted, the judiciary to supervise the actions and inactions of the executive".

The courts should realize in the time of crisis citizens can only rely on the courts to protect their constitutional guaranteed rights.

Finally if our legislature, executive and judiciary will not work in tandem and reciprocity towards each other and towards the benefit for the citizens of this country then the stark fault lines that have emerged in our government structure and way of governance will never get solved and the citizens will start losing the trust that they have in our state institutions.




- K.Keerthana


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.


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.


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.


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.


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.





 - Abhyuday Mishra


The origin of CBI is from the British Rule in our country, in 1946, World War-2, a War &Supply Department was formed by the Britishers as India had joined in the war while supporting the UK. During that, there were ample allegations of corruption involved in the supply of weapons and other war-related stuff and to investigate the same in the form of the special police establishment and the year of 1963 ministry of Home Affairs by an Executive order formed CBI. The agency primarily investigates economic crimes, special crimes, and other high-profile cases throughout India. Initially, the jurisdiction of the agency was limited to only corruption cases by central and state government employees. [1]In the due course jurisdiction expanded to the PSUs and public sector bank’s employees after the nationalization of early time CBI had two investigation wings i.e. General Offence Wings (GOW) and Economic Offence Wings (EOW). Four metro cities, Delhi Mumbai Madras and Kolkata have head offices of EOWs. With time the reputation and credibility of CBI have been increased significantly and as a result, various demands were made from time to time to investigate different crimes committed in India. Even the High court of various states and the Supreme Court of India ordered CBI investigations in various cases.

There is a rigorous process involved while appointing the director of CBI, as per the amended Delhi Special Police Establishment Act empowers a committee constating of Prime minister, Leader of Opposition, CJI or any Supreme Court Judge appointed by CJI appoints the director. Though it is presumed that CBI should have minimum political interference in the modus operandi but many instances have portrayed a different story.



Last year in a major controversial decision West Bengal and Andhra Pradesh government withdrew the general consent regarding the functioning of CBI in those states, though this step isn’t applicable retrospectively this decision has put a blanket ban on fresh cases in these concerned states[2]. There were allegations that the central government was using CBI maliciously for the political vendetta. The state government claimed that handling the law and order situation comes under the state list of the constitution (7th schedule) to justify their decision of withdrawal of general consent.[3] This general consent has been defined in the act itself.[4] It bars any member of Delhi Special Police Establishment to exercise its powers and jurisdiction without the consent of the state government of the concerned state. This decision is in direct conflict with the provision provided that gives CBI jurisdiction to investigate any crime all over the territory of India.[5]

Recently the chief minister of Rajasthan Ashok Gehlot has also withdrawn the state’s general consent to the CBI to conduct and investigate in the state. [6]This controversial decision was taken after an unprecedented political crisis in the state. Political and constitutional experts believed this is a major setback to the federal structure of the constitution. 


Sushant’s sudden demise resulted in a grave heartbreak for everyone, after the several allegations of murder and abetment of suicide Mumbai police were given the charge to investigate the matter but after Bihar Police alleged that Mumbai Police is tempering the shreds of evidence and they didn’t corporate with them in the investigation, a demand of CBI probe started in social media and by the law experts. It is worth mentioning here that SP of Bihar Police was forcibly quarantined by the BMC which was against the SOP.[7] Mumbai police refused to avail the forensic report to Bihar police. Union government gave a nod to the CBI probe in the concerned case. In this defense, Mumbai police claimed that since no Zero FIR has been registered in Mumbai hence Bihar police weren’t entitled to investigate in Mumbai without prior permission[8].

In a landmark judgment of Satvinder Kaur vs the State of NCT, the Supreme Court held that police can investigate a case even if it is beyond the jurisdiction[9].  In another landmark Judgement of AP vs Panati Ramlallu[10], the hon’ble court held that lack of territorial jurisdiction can’t is ground of preventing police from recording any information whatsoever regarding any cognizable offence and forwarding the same information to the police station.

Supreme court highlighted that the Mumbai police are not portraying a good picture of their administrative decision in the Sushant’s death case.


We have seen numerous incidents involving major controversies related to CBI which are diminishing the reputation of the agency in the eyes of people. It is pertinent to note here that political pressure acts as a major hurdle in the functioning of the agency. In the past, we have seen the government in central tried to put undue influence on the politicians for their benefit. While hearing the Coal block case the Supreme court critically remarked that the CBI is acting like a caged parrot and government whether they were planning to bring any such legislation of provision which would provide autonomy to the agency[11]. Union government should also consider making the state coordination mandatory and amendment in Section 6 of the DPSE act is required for the proper functioning, we have seen how state governments used their discretion for asserting general consent in investigations.

In Vineet Narain and ors. VS Union of India and ors. [12] the Supreme Court suggested various reforms for making CBI independent. It was held by the hon’ble court that the director of the CBI should be appointed on the recommendations of a committee by the CVC, home secretary, and secretary in the department of personnel as members.

The government has taken initiatives like establishing the CBI courts for the proper functioning of the agency asserting that this will improve efficiency. In the year 2017 government exempted CBI from consulting the UPSC for the recruitment to the post of DSP for 3 years. Union government has also arranged advanced certificate courses for the CBI officers related to forensic science and data handling.

Complete autonomy of CBI is the need of the hour to increase its efficiency and maintaining the reputation of the best investigation agency of the nation. Any kind of political interference should be checked. Union government can also consider direct recruitment of officers to improve the manpower of the agency. CBI has set up a reputation where whenever anyone loses faith in state police while investigating crimes the demand of the CBI probe is witnessed, the central government should work towards ensuring that reputation of the agency at any cost.

[1] A Brief History of CBI,

[2] After Andhra Pradesh, now West Bengal withdraws “general Consent” accorded to CBI , PTI , Nov,17,2018,

[3] Law and order,

[4] Delhi Special Police Establishment Act ,1946, section 6

[5] Delhi Special Police Establishment Act ,1946, section 5

[6] Vikas Aiyappa, General consent for CBI probe withdrawn by Rajasthan Government , July21,2020,

[7] SP Vinay Tiwari was virtually 'detained' in name of quarantine in Mumbai: Bihar Police tells Supreme Court, Aug 13,2020,

[8] The Criminal Procedure Code ,1973, Section 170

[9] Satvinder Kaur vs. State (Govt of N.C.T. of Delhi) and ors, MANU/SC/0632/1999

[10] State of Andhra Pradesh Vs Punati Ramulu and others, AIR 1993 SC 2644

[11] CBI a 'caged parrot', 'heart' of Coalgate report changed: Supreme Court, May 8, 2013,

[12] Vineet Narain and ors. VS. Union of India, MANU/SC/0827/1998