CONSTITUTIONAL LAW

RAPE WHICH IS LEGAL!

“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist.” –Philippa Gregory

Rape:

The most habitual crime against Women in Indian Society. The most habitual crime that is defined under section 375 of the Indian Penal Code, 1860 as a heinous crime against women’s gender. Surprisingly, it is the only crime where the victim turns to be accused. Although the concept of Rape seems well defined under this section, exception 2 to this section has made people believe that marriage is nothing but a sexual contract between spouses. The exception states, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

The term Marital Rape is not defined in the Indian Penal Code, thus making non-consensual intercourse between the spouses legal. Even if the spouses are tied by this sacred knot of Marriage, where both of them vow in front of each other and trust them with their lives, it has also become a universal license to ignore consent.

It’s quite ironic that we safeguard minors from Child Marriage whereas, on the other hand, legalise non-consensual intercourse by the husband with his wife. As well said, “Any tree with a poisoned root provides a poisoned fruit, similarly, a rape either before or after marriage is termed to be rape”. It was argued that criminalizing Marital Rape will “destabilise the institution of marriage and become a tool for harassment of husbands.”

The NGO RIT Foundation first petitioned the Delhi High Court in 2015, challenging the legality of the “marriage exception.” Currently, The Delhi high court is hearing whether the marriage exception to Section 375 (Exception 2) of the Indian Penal Code should be dismissed so that married women would have a legal remedy if they are coerced into sexual intercourse by their husbands. The legal stance, as well as the Centre’s, has been that consent is presumed and on-going for the life of a woman’s marriage, meaning that consent does not need to be discussed before each marital sexual contact.

On March 1, 2020, The Chief Justice of India, SA Bobde while hearing a bail request of a government servant accused of raping a minor girl said, “If you want to marry we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her,” It’s miserable to see that settlement for such a diabolical crime is ‘MARRIAGE’. In a recent case, The Supreme Court of India stays arrest of a man where the man was accused of raping a woman he was in a relationship with her for two years. The Supreme Court said,”… however brutal the husband is… when two people (are) living as husband and wife… can sexual intercourse between them be called rape?”

The most crucial point before the court is how “consent” may be defined, especially in marriages when there is “implied consent” and “expectation of conjugal sexual interaction.” The justices also pointed out that there is a discrepancy between the “right to have sex” and the “reasonable expectation of sex,” but that the concept of consent within a married relationship must be taken into account.

The fact that it’s a rape remains unchanged regardless of the perpetrator’s identification or the victim’s age. It is high time for people to realize that it is not just the purpose that must be considered, but also the ‘CONSENT.’ Imagine a woman being raped by her husband and having to sleep in the same house and on the same bed with her rapist for the rest of her life.

Marital Rape is certainly a genuine type of wrongdoing against women and deserving of the Court’s intervention, it’s an intricate issue with layers of many legal complexities. In 2013, the JS Verma Committee proposed a draft of law modifications to offences of sexual assault against women and, said that the exception to marital rape should be removed.

It now remains to see how the Court will interpret the issue in accordance with the societal change criminalizing Marital Rape will bring about.

Yashashree Raut
3rd Year B.A LLB
ILS LAW COLLEGE, Pune

“Justice Delayed Is Justice Denied”

In one sense, justice entails providing prompt and low-cost remedies to people who come to the court with legal issues. Delays in delivering justice have been construed as a denial of justice. When the preamble of the Indian Constitution mentions justice in all of its aspects – social, economic, and political – it expresses the yearning and goal of humanity for justice.

The principle of natural justice states that “justice should not only be done but it should be seen to have been done,” implying that people who receive justice must believe it has been done in their favor. Delay thwarts not only equity but also justice, and when it comes to the criminal justice system, it thwarts justice even more.

As the defender of people’s fundamental rights, the Supreme Court of India has broad obligations and powers to ensure a fast trial for the accused, and as such, in Hussainara Khatoon Vs. State of Bihar, took an activist approach. It noted that it followed the dynamic reading of Article 21 of the Indian Constitution in Maneka Gandhi vs. Union of India.

There is no question that a quick trial, by which we mean a trial that is properly expedited, is an inherent and necessary aspect of the fundamental right to life and liberty guaranteed by Article 21 of the Indian Constitution. Following the landmark verdict in Maneka Gandhi’s case, the entire human rights jurisprudence has been the outcome of a most remarkable and reasonable evolution of the law.

The formation of this new jurisprudence by the judiciary is the outcome of the case-by-case analysis. In the sphere of criminal law, the right to a speedy trial is the most essential basic human right. It has been developed by the judiciary through a process of creative interpretation. Despite the fact that speedy trial is not a clearly enumerated fundamental right in the United States of America’s Constitution (U.S.A.) The notion of the quick trial was first proposed in Maneka Gandhi’s case, nourished in Hoskot’s case, and ushered in with a judicial bang in Hussainara’s case.

In terms of the quick trial at the national level, there is evidence of speedy trial in the Ancient, Medieval, and Mughal periods, which expanded progressively and today occupy the position of fundamental rights.

Even though justice is supposed to be “simple, quick, cheap, effective, and significant,” Indians find it difficult to obtain, and one of the major reasons is the delay in the administration of justice. Many cases in India take up to ten years to resolve, and trials typically take longer than the statutory six months or two years, resulting in significant delays. According to published data, the number of criminal cases pending in subordinate courts in 2008 was 2.5 crore. According to reports, the high courts are now dealing with over 34 lakh cases.

Those who have been harmed physically, mentally, or financially turn to the courts in the hopes of redressing their concerns. They avoid taking the law into their own hands because they think that justice will be served by the courts at some point. As a result, the justice delivery system has a responsibility to provide timely and affordable justice to its customers without compromising the quality of justice or the elements of fairness, equality, and impartiality.

The judiciary, the legal profession, and the government must all take responsibility for this terrible development in the world’s largest democracy’s otherwise unblemished judicial record. The most serious flaw in India’s judicial system is the time it takes to resolve cases.

Vaidik Sharma
B.A.LLB 5th Year
Bharati Vidyapeeth, New Law College, Pune

BREACH OF RIGHT TO PRIVACY BY PEGASUS SPYWARE

What is Pegasus

Pegasus is a hacking software which has been developed and licensed to be used by a company of Israeli namely NSO Group. It has a capacity of infection millions of mobile phone including IOS and Android phone systems. Once this software enters into anyone’s phone, the phone becomes a surveillance device. The software can copy all the messages from your phone (sent or received) record calls including WhatsApp calls and also harvest photos and videos.[1]

Recently in 2019, the software exploited more than 1,400 phones with the help of software. It was also found that the software can also enter an iPhone by Apple’s iMessaging feature, However apples says that to protect your phone for this Pegasus one should keep updating their phone.

India Scenario

In India, there have been many cases wherein, Pegasus spyware was found in the mobiles phone which was considered as a violation of article 21 of those people. Around 40 journalist’s name was found in the hacking list of an unidentified agency using this spyware.[2] The data published over shoes that many journalists were prey to the software between the year 2018-19. Not only journalists, mobile numbers of 300 Indians including two union ministers, human right defenders, lawyers, thee leaders of the opposition party and scores of two business men was targeted for hacking with the help of the software.

Right to privacy

India is a democratic country, and incidents like Pegasus spyware snooping is violative of the fundamental rights of the citizens. Right to privacy is not an explicit rights mentioned in the Constitution, however after the judgment given in the famous case of K.S. Puttaswamy v. Union of India[3] “the right to privacy was interpreted as the right of an individual to exercise control over his personal data and to be able to control one’s existence on internet.” Therefore, the right to privacy comes under the ambit of right to life under Article 21. As the spyware Pegasus invade the privacy of an individual it is said to be a violation of Article 21 of the Constitution which is a fundamental right. In the surveillance issue, the absence of privacy impinges on the ideals of liberty and dignity as envisioned in the Constitution of India and hinders the growth of the individual as a citizen of this country.[4] Such a breach is a threat to the sovereignty of the nation and also the ideals of democracy the nation is based on.

Conclusion

The right to privacy is an intrinsic fundamental right available to each individual. Pegasus spyware not only violates the rights of individuals but it could also be use the private information of people. Data protection and privacy being internationally accepted concepts, should be protected from such software. International courts and judicial systems should ban the software or should take necessary steps to stop this violation or right to privacy and disclosure of information of individuals to the public.

Avantika Singh
3rd Year, BBA LLB (Hons.)
Symbiosis Law School, Pune

[1] What is Pegasus spyware and how does it hack phones by David Pegg and Sam Culter.

[2] Pegasus spyware controversy: The story so far, The free press Journal.

[3] K.S, Puttaswamy v. Union of & Ors., AIR 2017 SC 4161.

[4] Pegasus affair is an assault on privacy by Priyanka Chaturvedi.

Healthcare for Prisoners in India: An Overview

Individuals accept that prisoners are shipped off jail as a punishment, and not for punishment. This infers that the deficiency of a people right to freedom is implemented by regulation in a close environment. In this way keeping the person in the care of the state, ought not, in any case, deleteriously affect him. Be that as it may, this is, shockingly, the situation somewhat or another in a large number of the universes prison facilities. Is it conceivable at that point to characterize what is healthy environment in a jail? Not to mention, discussing a prisoner’s right to wellbeing administrations that are to be given to him by the jail specialists?

The response to this inquiry is that detainees have unalienable rights presented upon them by International treaties and covenants; they reserve a privilege to medical care, and assuredly have a privilege not to contract illnesses in jail. Jail statute perceives that detainees ought not to lose every one of their privileges due to detainment. However, there is a deficiency of rights inside custodial establishments, which keep on happening. Detainees are frequently failed to remember in this condition. They are in consistent contact with a wide range of individuals who come all through jail each day. This steady development all through jail makes it even more imperative to control any infectious sickness inside the jail with the goal that it doesn’t spread into the outside community.

In India, stuffing has disturbed the issue of cleanliness. In numerous prisons, conditions are shocking. At the tehsil level facilities, even simple comforts are not given. Detainees in India are not tried for explicit irresistible illnesses, albeit all detainees go through a clinical assessment when they start carrying out their punishment. No investigations of the pervasiveness of viral diseases among jail detainees have been done at a public level. India’s jail manuals accommodate isolation of detainees associated with having infectious illnesses. A couple of correctional facilities have set up casual contacts with clinical and social associations for advising of detainees to forestall the spread of contaminations.

Rights of prisoners granted by Constitution

Constitution of India does not expressly provide the provisions related to the prisoners’ rights but the Articles 14, 19 and 21 are available to the prisoners as well as freemen. Prison walls do not keep out fundamental rights.

Article 14 of the Constitution of India says that the State shall not deny to any person equality before law or the equal protection of laws within the territory of India. Thus Article 14 contemplated that like should be treated alike, and also provided the concept of reasonable classification. This article is very useful guide and basis for the prison authorities to determine various categories of prisoners and their classifications with the object of reformation.

Article 19 of the Constitution of India guarantees six freedoms to the all citizens of India. Among these freedoms certain freedoms cannot enjoyed by the prisoners because of the very nature of these freedoms. But the “freedom of speech and expression” and “freedom to become member of an association”

Article 21 of the Constitution of India[1] says that No person shall be deprived of his life or personal liberty except according to procedure established by law. This Article stipulates two concepts i.e., right to life and principle of liberty. By Article 21 of the Indian Constitution it is clear that it is available not only for free people but also to those people behind the prison. Following are the rights of prisoners which are implicitly provided under the Article 21 of the Constitution of India:-

Right of inmates of protective homes,
Right to free legal aid,
Right to speedy trial,
Right against cruel and unusual punishment,
Right to fair trial,
Right against custodial violence and death in police lock-ups or encounters,
Right to live with human dignity,

Apart from these rights of prisoners Constitution of India also provides following rights to the prisoners:-

Right to meet friends and consult lawyer,
Rights against solitary confinement, handcuffing & bar fetters and protection from torture,
Right to reasonable wages in prison.

Both prison change and penal change are significant components if the numerous issues influencing the Indian prisons are to be settled. Lessening the general jail populace will permit upgrades of the physical and working states of the detainment facilities, and help to guarantee the security of all people in care.

Hence, it tends to be said that the prisoners are likewise qualified for all his Constitutional rights while they are behind the prisons. Indian Constitution doesn’t explicitly accommodate the prisoners’ privileges yet Articles 14, 19 and 21 verifiably ensured the detainees’ privileges and the arrangements of the Prisons Act, 1894 contains the arrangements for the government assistance and assurance of detainees. The Court has decided that it can intercede with jail organization when protected rights or legal remedies are violated to the injury of the detainee. And much of the time, it is held that detainee is an individual, a characteristic individual and furthermore a legitimate individual.

ANKITH KUMAR

B.A. L.L.B – 5th Year

CHRIST (Deemed to be University) Bengaluru

[1] The Constitution of India, 1949

A Critical Analysis on Animal Welfare

Animal welfare as a science highlights the significant emphasis on how animals denote the standard of life that is experienced by them and the way they are handling their conditions and surroundings. It refers to the link between the human being and animals. From ancient times, man is known for domesticating animals. In India animals are not only used for the purpose of husbandry or agriculture but also treated as a deity and worshiped them as God. In this Article I am going to express the challenges faced by animal shelters and how we need to propose a solution for the betterment of animals. Firstly there is lack of public Awareness, Secondly funding’s are hard to come by and lastly there is over population of pets who needs to be adopted and proper care has to be taken for future purpose.

Animal Welfare assistance alludes to the personal satisfaction experienced by an animal and incorporates how well the animal is adapting to their present circumstances and environmental factors. World Animal Protection accepts that Animal Welfare assistance is influenced by the connection that individuals have with creatures and it is our obligation to guarantee that all animals are dealt with sympathetically, dependably, and with deference. This incorporates for all parts of creature prosperity, for example, the Five Domains. Animal Welfare assistance ought to be at the bleeding edge of each human activity including animals.

Apart from that the problems laid down above there are certain negative externalities where the concept has not been solved significantly and the government of each state is taking this matter as an utmost importance in order to give proper justice to the animals. Many accidents of animal cruelty occur in a daily basis but in most cases they’re not reported to cut back. The cases of animal cruelty and for the explanation of making social awareness, and in order to regulate measures, there is a need of strict legislations and active participation of all individuals and can only reduce this situation.

Animal welfare refers to the connection between the human and animal. It also prescribes certain duties for human towards animals. Animal welfare isn’t a replacement phenomenon; it existed since the amount of domestication, which is sort of about a minimum 10,000 years old, right from the Neolithic times. The connection between human and animal led to their domestication, animal agriculture, so this includes all aspect of Animal welfare. Here are the 5 probable solutions in order to solve the problem of animals suffering and should ensure that they get peaceful and healthy environment:

Nutrition: freedom from thirst and hunger.
Environment: freedom from discomfort by providing appropriate shelter.
Health: freedom from injury and disease by providing proper treatment.
Behavior: In order to express their own feelings by providing proper amenities to the animals.
Mental State: Where animals can enjoy freely without any mental suffering.

Animal Protection Laws in India: Constitutional Provisions

Part IV of the constitution states The Directive Principles of State Policy, under which Article 48 states, organization of agriculture and animal husbandry, which empowers the state to organize agriculture and animal husbandry on modern and scientific lines and shall also preserve the breeds and prohibit the slaughtering of cows and calves and other draught animals.
Article 48A declares Protection and improvement of environment and safeguarding of forest and wild life, and states that the state shall make effort in protecting and safeguarding the environment the forest and the wild life.
Part IVA of the Constitution declares Fundamental Duties of every citizen of India, which imposes a duty on the citizens under Article 51A (g) to protect and improve the natural environment[1].
The Constitution of India also imposes a power on the parliament and the legislatures of states under Article 246 read with Seventh Schedule of the Constitution to make laws for the prevention of cruelty to animals and for the protection of wild animals and birds
Under Article 243G read with Eleventh Schedule of the Constitution empowers the Panchayat to make laws on Animal husbandry, dairying and poultry

Given that the problem of Animal Welfare is not being solved by any significant research, and these are also not based on any views or values which our culture or religion has it then how can we proceed further by creating social programs and policies in order to ensure high standards of animal welfare. I think the most straightforward message is that, the activities intended to improve animal welfare assistance are not prone to accomplish far reaching support except if they assess the various originations of animal assistance to probably some degree. Animal producers are not liable to persuade their faultfinders that high-wellbeing imprisonment frameworks are useful for animal welfare assistance if these frameworks cause dissatisfaction and keep animals from doing a large portion of their regular conduct.

ANKITH KUMAR

B.A. L.L.B – 5th Year

CHRIST (Deemed to be University) Bengaluru

[1] The Constitution of India, 1949

FARMERS’ AGITATION AGAINST THE NEW FARM LAW REFORMS: A battle to legalize the Minimum Support Price (MSP)

Last year, the Indian Government enacted three major farm law reforms, namely, the Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 which allows farmers to sell their produce to anyone outside of the Agriculture Produce Marketing Committee (APMC) approved mandis, both at the intra-state and inter-state level and the state governments are prohibited from levying any market fee, cess or levy on such a sale; the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 which allows farmers to enter into a contract farming agreement with a buyer prior to sowing or harvesting of any farm produce which must guaranty farmers a minimum price and to buyers an assured supply, and sets up a three-level dispute resolution mechanism comprising of a Conciliation Board, Sub-Divisional Magistrate and an Appellate Authority; and the Essential Commodities (Amendment) Act, 2020 which de-classifies some commodities like onions, pulses, potatoes, edible oilseeds and oil as essential items in normal circumstances but at the same time empowers the government to impose stock limits on them in case of a war or famine.

Since the enactment of new farm laws last September, a major section of the farmer community from the northern states of Punjab and Haryana has been demanding a total ban and repeal of these laws. Thousands of farmers are agitating relentlessly, day and night protesting at the Singhu border of the national capital, New Delhi. Although the new farm laws have nothing to do with setting up of a Minimum Support Price (MSP) but they have garnered strong opposition from the farmers mainly residing in these states in this regard. MSP is a minimum price which is fixed by the government for procuring selective crops’ produce from the farmers in the APMC approved mandis. Although it acts as a catalyst to bolster the farmers’ income in times of uneven market prices of essential crops like wheat, paddy etc. but it does not have a legal basis in India. In other words, there is no statutory framework in India that empowers the government to mandatorily set up MSP.

Then why are the farmers, particularly from the states of Punjab & Haryana protesting against the new laws? To answer this, first we need to trace the origin of the concept of MSP. MSP’s origin can be traced back to the 1960’s when our country was facing acute food shortage, at that time MSP was conceived as a policy incentive under the aegis of the Green Revolution drive to boost the growth of agricultural produce in India wherein the then government decided to procure food grains, mainly wheat, from the farmers in the government approved mandis at a pre-determined rate or MSP. As a result, farmers started investing heavily in irrigation machinery, fertilizers and pesticides because of the assurance that the government would buy their produce once it was harvested, at a rate which is not less than the MSP from anyone. The major states to benefit from this scheme were Punjab and Haryana.

However, since then it became a customary practice to set up MSP every year by the successive governments which came into power due to their vested interests of vote bank politics and gradually the scope of crops also expanded on which the MSP would apply. At

present, MSP is fixed for 24 crops by the government twice a year on the recommendations of the Commission for Agricultural Costs and Prices (CACP), which is a statutory body.

According to the Shanta Kumar Committee Report, 2015 – while farmers in India do enjoy some sort of a safety net under the MSP regime but in reality only 6 per cent of farmers actually succeed in selling their crops at MSP. Hence, a majority of Indian farmers have never really benefitted from the MSP system. The MSP regime is also plagued by intermediaries and middlemen who block access to the APMC mandis for small and marginal farmers as well as new traders. According to a report submitted by the Standing Committee on Agriculture to the Lok Sabha in 2019, it was found that most APMCs in India have a limited number of traders operating, which has resulted in cartelization and reduction of competition (in terms of buyers in these mandis) and that undue commissions and market fees were being charged therein¹.

In order to overcome the failures of the APMC regime, the government has enacted the new farm laws. While the Government claims that the new laws aim towards bringing farmers more close to buyers outside the APMC approved mandis, leading them to practically sell their produce freely to anyone in the market, however, the new laws are silent upon setting up of MSP by the government in the areas outside of the APMC approved mandis. And this is the reason why farmers majorly from the states of Punjab and Haryana are protesting today, because they fear that having no MSP fixed for their produce outside such mandis can jeopardise their livelihood and also put them in an uneven bargaining position with the big private entities who may enter the market as proposed buyers under the new contract farming regime.

Due to the perishable nature of crops, every year tonnes of farm produce goes to waste as it is kept lying to rot in warehouses that are ill-equipped to handle such vast measure of produce. The usher of new farm laws is indeed a stepping stone to welcome private players or big entities which are equipped with advanced infrastructure and storage facilities to aid in the protection and safety of the farm produce from going to absolute waste. However, the plight of farmers’ and their right to freely access the market must not be neglected. Especially, leaving small and marginal farmers in an unequal bargaining position with the big conglomerates, in the absence of a minimum support price outside of the government approved mandis under the new contract farming regime will put them at a greater risk and on the mercy of bigger private enterprises.

While hearing several petitions filed before the Apex Court challenging the constitutional validity of the new farm laws, the honourable Supreme Court of India has recently directed the Central Government to put a stay on the implementation of all the three farming laws and has also ordered to set up a four member committee to hear the plight of agitating farmers and all the stakeholders involved, and to amicably reach at a settlement.² However, the government must step up and act in a proactive way to strike a balance between the farmers’ interests as well as the privatization of the Indian agricultural sector which is the need of the hour.

¹ See Report No. 8, Standing Committee on Agriculture (2019-20): Action taken by the government on the report ‘Agriculture Marketing and Role of Weekly Gramin Haats’, Lok Sabha, (2019), available at: https://www.prsindia.org/billtrack/farmers-empowerment-and-protection-agreement-price-assurance-and-farm-services- bill-2020#_edn2

² Read the Court Order here: https://images.assettype.com/barandbench/2021-01/1df8a71d-e777-426e-ba24- f21525fe987b/farm_laws.pdf

“Lottery Lagi Hai Kya?”: Position of ‘Lottery’ in Maharashtra

Introduction

The Game is something which is to play whether by skills or by chance. The game which is played by chance are those where winning is totally dependent upon luck, there is no role of mental or physical skill and results are uncertain. In India, game of chance falls under lottery which is generally prohibited. Whenever the term lottery comes in mind people get lost in the world of dreams. In the developing time, lottery has become an important part of society. But if we look at the society today, there are a lot of failures happening every day under the name of lottery, people are losing their hard-earned money. Due to which gambling, betting and Lottery are considered as immoral means of earning because somewhere it is against the attitude of honest labour and hard work, upon which social happiness is dependent. The Hindi Phrase “Lottery lagi hai Kya?’ is generally used when someone get something without any effort only just by chance or luck.

Legal Frame work of Lottery

Lottery in India

In India, Lottery is being enumerated under Entry 40 of List I of the Seventh Schedule of the Constitution of India, has been generally excluded from the ambit of gambling, which is a State subject under Entry 34 of List II of the Seventh Schedule. Accordingly, center had made following Legal frame-work;

The Lotteries (Regulation) Act, 1998	Regulates Lottery business
Indian Penal Code, 1860	Keeping Lottery office is Crime[1]
Telecom Commercial Communications Customer Preference Regulations, 2010	Prohibits Unsolicited Commercial Communications”
The Cable Television Network Rules, 1994	Prohibits Advertising Gambling Activities
Income Tax Act, 1961	Imposition of tax on winnings from lotteries, crossword puzzle, races, card games, betting etc.[2]
The Consumer Protection Act, 1986	Included lottery business into ‘Unfair Trade Practice’[3]

Lottery in Maharashtra

In Maharashtra in 1958 Section 294A of IPC is been repealed by the Section 33 of Maharashtra Lotteries (Control and Tax) and Prize Competitions (Tax) Act, 1958[1] (w.e.f. 01/02/1269). Later on, 12^th April, 1969, State of Maharashtra by the state finance department established the lottery with an objective to stop people from being deceived by illegal lotteries. In Maharashtra according to The Lotteries (Regulation) Act of 1998 state government has the right to print and sell lottery tickets either itself or through authorized selling agents. The selling of lottery tickets became a full-time or part-time business for many unemployed and on other hand poorer are getting more poorer by losing their money in lottery. There are following Maharashtra Government approved Lottery:

Gajraj Monthly
GajLaxmi Shani
Ganesh Laxmi Samruddhi
Maharashtra Laxmi Weekly Draw
Surbhi Manga

Position of Lottery in Maharashtra

The important thing is that horse racing, cricket betting are things that are played by the rich peoples of the society. The chain of gamblers is very wide and the police system to prevent it is very meagre. The money from such illegal activities is causing huge tax losses and crime is on the rise. The money used for the welfare of the society is being wasted. Today, despite the strict laws of the state government, the business is booming illegally.

There are total 13 States like Kerala, Goa, Maharashtra, Madhya Pradesh, Punjab, West Bengal, Assam, Arunachal Pradesh, Meghalaya, Manipur, Sikkim, Nagaland and Mizoram where lotteries are not banned. Although, Center permit only state to run lottery business but number of cases has taken into cognizance that there are unauthorized lotteries running in state. The money from such illegal activities is causing huge tax losses and crime is on the rise. The money used for the welfare of the society is being wasted. Today, despite the strict laws of the state government, the lottery business is booming illegally. For the same reason in 2011 The Finance department had issued the list of 258 legal lotteries following the proliferation of illegal lotteries in the state. The state finance ministry also warned that promoters and distributors of illegal lotteries would be severely punished under Sections 14 (1), 17 and 18 of Maharashtra Tax on Lotteries Act, 2006.[2]

Unlike other states lottery is legal in Maharashtra and under The Lotteries (Regulation) Act lottery is conducted once in a week[3]. It is claimed by the state that the total revenue from the Lottery business is Rs 138 Cr which is ten time lesser than Kerala. There is loss in revenue and also it is difficult to have control over online transactions. The state government has blamed the proliferation of online sales of lotteries from other states, resulting in January, 2020, the Hon’ble Deputy CM and Finance Minister of the state, Ajit Pawar declared the ban on online sale of lottery tickets of other states in Maharashtra[4]. Thus, conclusively the state government needs to tighten the laws and enforce them in the same manner.

Dhananjay Padwal

4th Year Student

BA LLB Pune University

[1] Bombay Act 82 of 1958

[2] Accessed On 19-07-2020: https://timesofindia.indiatimes.com/city/nagpur/Goverment-issues-list-of-legal-lotteries/articleshow/7243947.cms

[3] Section 4(h)

[4]Accessed On 19-07-2020: https://mumbaimirror.indiatimes.com/mumbai/civic/online-lotteries-of-other-states-to-be-banned-in-maha/articleshow/73258510.cms

[1] Section 294A Of Indian Penal Code,1860

[2]Section 115BB

[3]Section 2(1) (r)(3)(b)

HATE SPEECH AND THE LAW

In a landmark American Judgment, Chaplinsky v. New Hampshire[1], the term “Hate Speech” has been described as: “Fighting words which by their very utterance inflict injury or tend to incite an immediate breach of peace. It has been observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit may be derived from them is clearly out-weighed by the social interest in order and morality.” In short, hate speech is any form of communication which may lead to injury or unrest to any individual or society or community at large. Media through internet, newspapers, television etc. play a crucial role in the concept of hate speech.

In India, hate speech does not fall under Article 19(2) of the Constitution of India and therefore does not create an explicit exception to the freedom of speech and expression under Article 19(1)(a). A varied range of Indian statutes provide for provisions that support in governing hate speech. The provisions provided in India are much wider as compared to the laws of USA or the UK where the laws related to hate speech are more clear and unambiguous. According to Section 5-B of the Cinematograph Act, 1952, a film can be disapproved for certification on numerous grounds, including on the ground that it is likely to provoke the conduct of an offence or that it is against the sovereignty and integrity of India or public order. Section 69 of the Information Technology Act, 2000 provides for the interception of information by the authorities in the interest of public order, or the sovereignty and integrity of India, or for the purpose of preventing the provocation to the commission of any cognizable offence. Section 66-A, Information Technology Act, 2000 and Section 79 of the Information Technology (Intermediaries Guidelines) Rules, 2011 punishes the sending of offensive messages which cause insult, injury, enmity, hatred or ill-will. Section 153-A of the Indian Penal Code, 1860 penalizes the promotion of class hatred. Section 295-A of the Indian Penal Code, 1860 provides for the punishment for insults to religion and to religious beliefs. Section 298, Indian Penal Code, 1860 punishes who utter words, makes sounds, or gestures with the voluntary intention to injure the religious sentiments of another. Section 505 of the Indian Penal Code, 1860 provides for punishment for incitement of any class or community against another class or community. Chapter XXII of the Indian Penal Code, 1860 completely deals with criminal intimidation, insult and annoyance which form a part of hate speech. Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 penalizes any intentional insult or intimidation with the intention to degrade a member of the scheduled caste or tribe in any public place. Rule 6 of the Cable Television Network Rules, 1994 provides for the programme code and disallows the carrying of any programme on the cable service which:

Rule 6(1) (c) – contains an attack on religion or communities or visuals or words contemptuous of religious groups or which promotes communal attitudes.
Rule 6(1) (e) – is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes.
Rule 6(1) (i) – criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country.
Rule 6(1) (m) – contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups.

Similar restrictions can also be found under Rule 7 of the Cable Television Network Rules, 1994 in relation to advertisements on the cable service.

Social Media like Facebook, Instagram, and Twitter etc. also play a major role in the formation of hate speech. Such platforms provide the users with a free space to express their opinion with the world at large. The problem arises when the platforms are misused in order to incite or provoke hatred amongst the society. People can anonymously post any content which may be injurious to the identity, reputation, class or caste of any individual or a group of people. Social media is regulated by Section 66-A of the Information Technology Act, 2000 which provides for punishment for sending offensive messages through communication service, etc. The constitutional validity of this section was also challenged in the Supreme Court in the case of Shreya Singhal v. Union of India[2], in which Section 66-A of the Information Technology Act, 2000 was struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). The Indian Government has notified the Intermediary Guidelines under the Information Technology Act, 2000 where the intermediaries will have to take down or disable content considered defamatory or against national integrity under Article 19 (2) of the Constitution within 24 hours on being informed by the appropriate government in addition to using automated mechanisms to recognize, disable and trace the origin of such content. It also imposes responsibilities on social media platforms to prohibit or remove any information that is harassing, disparaging, hateful, blasphemous or otherwise unlawful in any manner.

[1] Chaplinsky v. New Hampshire, 86 L Ed 1031: 315 US 568 (1942).

[2] Shreya Singhal v. Union of India, (2013) 12 SCC 73.

Section 377 of Indian Penal Code, 1860

Introduction:

Homosexuality has been a talking point from a very long period of time in India where people had different opinions about it, where one section of the society treated it as a disease which is not curable and such people should be separated from the society while other opined that this is something which is natural and they are no different from other people. The provisions relating to homosexuality in India was considered to be punishable till 2018, however, now the Hon’ble Supreme Court has ruled out Section 377 of IPC by providing LGBT community with their long awaited rights for which they have been fighting for a very long period of time

Earlier Law on Homosexuality in India:

Section 377 of IPC read as follows “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” However, the same now has been declared unconstitutional by the Supreme Court.

In the 42^nd Law Commission Report it was submitted that, “Indian society by and large disapproved of homosexuality which disapproval was strong enough to justify it being treated as criminal offence even where the adults indulge is in private. Law cannot run separately from the society since it reflects perception of society.”[1] Also, it was considered that the primary objective of the marriage is procreation and as marriage being a social institution legal binding of same sex marriage would undercut the norm that is related to the marriage as it establishes that there is no necessary link between procreation and marriage.

When the people started getting aware they came to know about the law relating to homosexuality and with this awareness many countries recognized the same sex marriage and Netherland became the first country to recognize same sex marriage in the year 2001. After that many countries recognized the same stating that it is the need of an hour to give the rights which LGBT community has been deprived for many years.

It is also important to state that “Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings… it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be possibility conception of human beings which in case of coitus per os is impossible.”[2]

New Law on Homosexuality in India:

When the Constitution of India was drafted by it was clearly mentioned that the Constitution of India is a living instrument made for the progressive society. Dr. Ambedkar had felt that the Constitution can live and grow on the bedrock of “constitutional morality”. The whole issue that was prevailing was of the constitutional morality and public morality. It is important to note that morality is not eternal, it changes with time. What once was a moral practice doesn’t mean that it will remain moral for infinite period of time. Furthermore, “Morality means the ideas about right and wrong which are accepted by the right thinking members of the society as a whole of the country.”[3]

For the very first time in the year 2001, a petition in the Delhi High Court was filed by Naz Foundation that works on HIV/AIDS and sexual health issues, on which the Delhi High Court exercising their rights held Section 377 unconstitutional. This judgment was termed as revolutionary by many jurists but soon this particular judgment was overruled by the Hon’ble Supreme Court. It was held by the Supreme Court that amending or repealing of this provision should be left to Parliament and not to judiciary. In this case SC also stated that this particular provision is against the order of the nature and such should not be decriminalized in the present situation. Supreme Court also held that homosexuality is the sexual propensity for persons of one’s own sex.

In the Puttoswamy’s case a landmark judgment was given by the court and held that “Right to Privacy” is a part of Article 21 and is also a Fundamental Right. Although, all the Fundamental Rights comes along with reasonable restrictions but with privacy becoming a Fundamental Right it became evident that sooner or later the rights of the LGBT community will be recognized and Section 377 will get decriminalize. The court stated that sexual orientation is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine.”

Right to privacy is implicit in right to life. A citizen has a right to safeguard the privacy of himself, his family, procreation, marriage, education and child bearing. Furthermore, “it is a right that has to be left alone”.[4] “Right to Privacy has been considered implicit in our constitution.”[5]

After a year that day came when Constitutional Bench of the Supreme Court decriminalized Section 377 stating that it is the need of an hour to make this provision unconstitutional. “A panel of five judges issued a unanimous judgment striking down the provision and affirming the right to equality and dignity. “Respect for individual choice is the essence of liberty,” Hon’Ble Justice Dipak Misra, India’s chief justice, told a packed courtroom. “This freedom can only be fulfilled when each of us realizes that the LGBT community possesses equal rights.”

[1] 42^nd Law Commission Report, 1971

[2] Khanu v. Emperor, AIR 1932 Cal 487

[3] Brij Gopal v. State of M.P., AIR 1979 MP 173 (181)

[4] R Rajagopal v. State of Tamil Nadu, 1995 AIR 264, 1994 SCC (6) 632

[5] PUCL v. Union Of India, AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC