The Medical Termination of Pregnancy Act and Rules
The Pre-Natal Diagnostic Techniques (PNDT) Act and Rules
Acts in Disability
Insecticides Act and Rules
Maternity Benefit Act and Rules
Narcotic Drugs and Psychotropic Substances Act and Rules
Drugs and Cosmetics Act, 1940
Bio-Medical Waste (Management and Handling) Rules, 1998
The Pharmacy Act, 1948
The Transplantation of Human Organs Act and Rules
Environmental Acts and Rules
Consumer Protection Act and Medical Profession
Mental Health Act, 1987
Sunday, August 31, 2008
THE CIGARETTES AND OTHER TOBACCO PRODUCTS
to prohibit the advertisement of, and to provide for the regulation of trade and
commerce in, and production, supply and distribution of, cigarettes and
other tobacco products and for matters connected therewith or incidental
thereto. LINK
commerce in, and production, supply and distribution of, cigarettes and
other tobacco products and for matters connected therewith or incidental
thereto. LINK
Friday, August 29, 2008
Public interest Litigation"
"Public interest Litigation", in simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.
PUBLIC INTEREST LITIGATION is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a PUBLIC INTEREST LITIGATION can be filed. For e.g.
- Violation of basic human rights of the poor- Content or conduct of government policy
- Compel municipal authorities to perform a public duty.
- Violation of religious rights or other basic fundamental rights.LINK
LITIGATING REPRODUCTIVE RIGHTS:
Using Public Interest Litigation and International Law to
Promote Gender Justice in India LINK
Promote Gender Justice in India LINK
In the garb of Public Interest Litigation, the petitioner, who is a
IN THE HIGH COURT AT DELHI AT NEW DELHI
(Extra ordinary Original Writ Jurisdiction)
Civil writ Petition No. 7455 OF 2001
IN THE MATTER OF
Naz Foundation … Petitioner
VERSUS
Government of NCT of Delhi & Others … Respondents link
(Extra ordinary Original Writ Jurisdiction)
Civil writ Petition No. 7455 OF 2001
IN THE MATTER OF
Naz Foundation … Petitioner
VERSUS
Government of NCT of Delhi & Others … Respondents link
Sunday, August 24, 2008
PENAL PROBLEM A LOOK
dia is the largest producer and exporter of tobacco in the World. Total tobacco production in India is about 700 million Kilograms annually. Rich and varied Indian geographic and agro-climatic conditions foster consistent availability of wide range of tobaccos for export all through the year. Indian tobacco, by virtue of its qualities, sheer volumes and diversity, is progressing gracefully to occupy its rightful place in the world tobacco market.LINK
Smt. Pratibha Devisingh Patil, President of India
" I am deeply committed to the cause of education and would like to see every person, man and woman, boy and girl, be touched by the light of modern education. Empowerment of women is particularly important to me as I believe this leads to the empowerment of the nation"
Smt. Pratibha Devisingh Patil, President of India
Smt. Pratibha Devisingh Patil, President of India
Supreme Court of India caselaw
Supreme Court of India caselaw Click here for the latest judgments of the Supreme Court of India. For judgments of the last one month please click here.
SupremeCourtCaseLaw.com (sccl.in), a unique site providing you judgments of the Supreme Court of India, online, whether reportable or non-reportable. The accessibility to see and download the full text of the judgments is restricted to only the members of this site. However, Non-members/visitors can search and see the subject index of the judgments on the site. In order to know more about the membership details please click here.
Click here to see sample of daily updates and sample of complete judgment.
Labour Laws
Labour Laws Publications relating to labour i.e. under the Industrial Disputes Act, Workmen Compensation Act, Trade Union Act and other allied labour laws
INTERNATIONAL FAMILY LAW
Jeremy D. Morley concentrates on International Family Law. The firm works with clients around the world from its New York office, with a global network of local counsel. Mr. Morley is a New York attorney and a Fellow of the International Academy of Matrimonial Lawyers LINK
India: Alcohol and public health
India: Alcohol and public health
Dr Vivek BenegalAssociate Professor of Psychiatry National Institute of Mental Health and Neurosciences,Bangalore
Dr Vivek BenegalAssociate Professor of Psychiatry National Institute of Mental Health and Neurosciences,Bangalore
Thursday, August 21, 2008
The Nature of Law
(to table of contents of archives) (to start of Part I)
Outline (all four parts)
Part I: Law and Order Without Government - Introduction - Varieties of Law - Public Goods vs. Public Choice
Part II: The Three Functions of Law - Why Three Functions? - Should Law Be Monopolized? - Locke's Case for Monocentric Law - The Lockean Case Against Locke
Part III: Law vs. Legislation - Socrates on Law - Two Senses of Law - Natural Law and Human Law - Natural Law and Customary Law - Law vs. Legislation: Documentary Evidence
Part IV: The Basis of Natural Law - Is There Room for Natural Law?
- Who Has the Burden of Proof?
- Objection One: Natural Law Serves No Useful Purpose
- Objection Two: There Couldn't Be Such a Thing as Natural Law
- Objection Three: Even If There Were a Natural Law,
It Would Be Unknowable - Objection Four: Evolutionary Explanations Make Natural Law Obsolete - Notes - John Locke on Natural Law
(back to top of page) (to top of outline)
Part I: Law and Order Without Government
Most people take the terms order, law, and government to be coextensive. Without government, there would be no law. Without law, there would be no social order. In fact, however, the three concepts are distinct.
Law may be defined as that institution or set of institutions in a given society that adjudicates conflicting claims and secures compliance in a formal, systematic, and orderly way. Law thus defined is one species of social order, but not the whole of it; there are also less formal mechanisms for maintaining social order. Indeed, the vast bulk of cooperation in society in fact depends on informal order rather than on law.
(to top of page) (to top of outline)
Varieties of Law
Law may be subdivided into voluntary and coercive law, depending on the means whereby compliance is secured. Voluntary law, as the name implies, relies solely on voluntary means, such as social pressure, boycotts, and the like, in order to secure compliance with the results of adjudication. Coercive law, on the other hand, relies at least in part on force and threats of force.
Coercive law in turn may be further subdivided into monocentric and polycentric coercive law. Under monocentric coercive law, there is a single institution that claims, and in large part achieves, a coercive monopoly on the use of force to adjudicate claims and secure compliance in a given territorial area. This institution is called a government, and everyone other than the government and its agents is forbidden to adjudicate by force. Under polycentric law, by contrast, no one agency claims or possesses such a monopoly.
An anarchist, then, is not someone who rejects order or law or even coercive law, but rather one who rejects government. The anarchist argues that informal order, voluntary law, and polycentric coercive law are sufficient to maintain social cooperation; the advocate of government argues that monocentric coercive law is needed in addition, and indeed typically maintains that the amount of social order that can be maintained through non-governmental sources alone is quite small.
Yet a great deal of social order is maintained through informal means alone. In Order Without Law: How Neighbors Settle Disputes, economist Robert Ellickson has shown how disputes over land use are frequently resolved informally, without recourse to official adjudication, and certainly without recourse to legal statutes (the relevant statutes being generally unknown to the disputing parties in any case). More broadly, Robert Axelrod in The Evolution of Cooperation has explained why cooperation is generally a successful strategy and thus why it tends to be "selected for" by the market, as cooperative relationships emerge and grow spontaneously without being directed by any authority.
When there is a need for the more formal mechanism of law, this law may be voluntary rather than coercive. An example of voluntary law is the Law Merchant, a system of commercial law that emerged in the late Middle Ages in response to the need for a common set of standards to govern international trade. The merchants, fed up with the excessive rigidity of governmental laws regulating commerce, and frustrated by the lack of uniformity among the commercial codes of different nations, simply formed their own Europe-wide system of courts and legal codes. For enforcement, the Law Merchant relied not on state-imposed penalties but on credit reports; those who refused to abide by the system's rules and decisions would have a hard time finding other merchants willing to deal with them. (The case of the Law Merchant shows that systems of private law need not depend on kinship or other local ties for their success.)
When law is coercive, it need not be monocentric. For example, under early Anglo-Saxon law, Kings made foreign policy only; domestic policy was left to local courts called Moots, which simply enforced agreed-upon local customs. Neither Kings nor Moots had any power of domestic enforcement; it was up to individuals to enforce the law by private coercion. Such individuals generally formed associations called borhs, pledging security for one another's reliability; even here, much enforcement was through social sanction (being denied membership in a borh) rather than coercion.
(to top of page) (to top of outline)
Public Goods vs. Public Choice
Thus private law, whether strictly voluntary or also coercive, has proven itself historically as an effective provider of social order. But the anarchist's point is not simply that monocentric law is not necessary in order to maintain social order, but more fundamentally that introducing monocentrism into the picture actually decreases social order.
Advocates of government assume that non-governmental mechanisms for achieving order will be ineffective because of public-goods problems — specifically, the problem that unless people are forced to cooperate, each person will have an incentive to free-ride on the cooperation of others without cooperating himself. This argument is often taken to show the necessity of government.
But if market solutions are beset by perverse incentives caused by public-goods problems, governmental solutions are likewise beset by perverse incentives caused by public-choice problems: monopolies that collect revenues by force are not accountable to their clients, and state officials need not bear the financial cost of their decisions; inefficiency is the inevitable result. Since both systems involve perverse incentives, the important question is: which system is better at overcoming such incentives?
And here the answer is clear. Under a market system, entrepreneurs stand to reap financial rewards by figuring out ways to supply "public" goods while excluding free riders. Thus the system that creates the perverse incentives also creates the very incentives to overcome them. That's why every so-called "public" good has been supplied privately at one time or another in history. Governments, by contrast, must by definition forbid competition. Thus governments, unlike markets, have no way of solving their incentive problems. We would be well-advised, then, to buy our law on the market rather than from the state.
( to top of page) (to top of outline)
(to table of contents of archives)
Outline (all four parts)
Part I: Law and Order Without Government - Introduction - Varieties of Law - Public Goods vs. Public Choice
Part II: The Three Functions of Law - Why Three Functions? - Should Law Be Monopolized? - Locke's Case for Monocentric Law - The Lockean Case Against Locke
Part III: Law vs. Legislation - Socrates on Law - Two Senses of Law - Natural Law and Human Law - Natural Law and Customary Law - Law vs. Legislation: Documentary Evidence
Part IV: The Basis of Natural Law - Is There Room for Natural Law?
- Who Has the Burden of Proof?
- Objection One: Natural Law Serves No Useful Purpose
- Objection Two: There Couldn't Be Such a Thing as Natural Law
- Objection Three: Even If There Were a Natural Law,
It Would Be Unknowable - Objection Four: Evolutionary Explanations Make Natural Law Obsolete - Notes - John Locke on Natural Law
(back to top of page) (to top of outline)
Part I: Law and Order Without Government
Most people take the terms order, law, and government to be coextensive. Without government, there would be no law. Without law, there would be no social order. In fact, however, the three concepts are distinct.
Law may be defined as that institution or set of institutions in a given society that adjudicates conflicting claims and secures compliance in a formal, systematic, and orderly way. Law thus defined is one species of social order, but not the whole of it; there are also less formal mechanisms for maintaining social order. Indeed, the vast bulk of cooperation in society in fact depends on informal order rather than on law.
(to top of page) (to top of outline)
Varieties of Law
Law may be subdivided into voluntary and coercive law, depending on the means whereby compliance is secured. Voluntary law, as the name implies, relies solely on voluntary means, such as social pressure, boycotts, and the like, in order to secure compliance with the results of adjudication. Coercive law, on the other hand, relies at least in part on force and threats of force.
Coercive law in turn may be further subdivided into monocentric and polycentric coercive law. Under monocentric coercive law, there is a single institution that claims, and in large part achieves, a coercive monopoly on the use of force to adjudicate claims and secure compliance in a given territorial area. This institution is called a government, and everyone other than the government and its agents is forbidden to adjudicate by force. Under polycentric law, by contrast, no one agency claims or possesses such a monopoly.
An anarchist, then, is not someone who rejects order or law or even coercive law, but rather one who rejects government. The anarchist argues that informal order, voluntary law, and polycentric coercive law are sufficient to maintain social cooperation; the advocate of government argues that monocentric coercive law is needed in addition, and indeed typically maintains that the amount of social order that can be maintained through non-governmental sources alone is quite small.
Yet a great deal of social order is maintained through informal means alone. In Order Without Law: How Neighbors Settle Disputes, economist Robert Ellickson has shown how disputes over land use are frequently resolved informally, without recourse to official adjudication, and certainly without recourse to legal statutes (the relevant statutes being generally unknown to the disputing parties in any case). More broadly, Robert Axelrod in The Evolution of Cooperation has explained why cooperation is generally a successful strategy and thus why it tends to be "selected for" by the market, as cooperative relationships emerge and grow spontaneously without being directed by any authority.
When there is a need for the more formal mechanism of law, this law may be voluntary rather than coercive. An example of voluntary law is the Law Merchant, a system of commercial law that emerged in the late Middle Ages in response to the need for a common set of standards to govern international trade. The merchants, fed up with the excessive rigidity of governmental laws regulating commerce, and frustrated by the lack of uniformity among the commercial codes of different nations, simply formed their own Europe-wide system of courts and legal codes. For enforcement, the Law Merchant relied not on state-imposed penalties but on credit reports; those who refused to abide by the system's rules and decisions would have a hard time finding other merchants willing to deal with them. (The case of the Law Merchant shows that systems of private law need not depend on kinship or other local ties for their success.)
When law is coercive, it need not be monocentric. For example, under early Anglo-Saxon law, Kings made foreign policy only; domestic policy was left to local courts called Moots, which simply enforced agreed-upon local customs. Neither Kings nor Moots had any power of domestic enforcement; it was up to individuals to enforce the law by private coercion. Such individuals generally formed associations called borhs, pledging security for one another's reliability; even here, much enforcement was through social sanction (being denied membership in a borh) rather than coercion.
(to top of page) (to top of outline)
Public Goods vs. Public Choice
Thus private law, whether strictly voluntary or also coercive, has proven itself historically as an effective provider of social order. But the anarchist's point is not simply that monocentric law is not necessary in order to maintain social order, but more fundamentally that introducing monocentrism into the picture actually decreases social order.
Advocates of government assume that non-governmental mechanisms for achieving order will be ineffective because of public-goods problems — specifically, the problem that unless people are forced to cooperate, each person will have an incentive to free-ride on the cooperation of others without cooperating himself. This argument is often taken to show the necessity of government.
But if market solutions are beset by perverse incentives caused by public-goods problems, governmental solutions are likewise beset by perverse incentives caused by public-choice problems: monopolies that collect revenues by force are not accountable to their clients, and state officials need not bear the financial cost of their decisions; inefficiency is the inevitable result. Since both systems involve perverse incentives, the important question is: which system is better at overcoming such incentives?
And here the answer is clear. Under a market system, entrepreneurs stand to reap financial rewards by figuring out ways to supply "public" goods while excluding free riders. Thus the system that creates the perverse incentives also creates the very incentives to overcome them. That's why every so-called "public" good has been supplied privately at one time or another in history. Governments, by contrast, must by definition forbid competition. Thus governments, unlike markets, have no way of solving their incentive problems. We would be well-advised, then, to buy our law on the market rather than from the state.
( to top of page) (to top of outline)
(to table of contents of archives)
article"Medical Jurisprudence: An Indian Law Perspective"
Introduction:"Medicolegal" is the term, which incorporates the basics of two sister professions i.e. Medicine and Law. Everybody talks about the law but few, aside from lawyers, judges and law teachers, have more than the vaguest notion of what constitutes law. The average layman often has about as much accurate information about the law as he has about medicine-or life on Venus. And, unfortunately, two professional groups suffer from more ignorance of law and medicine than is good for them: lawyers, at least those who do not constantly deal with medical issues in their legal practice, know very little about the medical profession and its problems; physicians frequently comprehend too little about the law and how it affects them in the practice of their profession. Medico legal experts can provide a link between these two professions for their smooth & effective functioning in a scientific manner. The physician meets the law at every turn. He confronts it when, as the treating doctor, he is subpoenaed as a witness in a personal injury lawsuit; he meets it when his aid is sought as an expert in connection with a claim that another member of his profession has been negligent and when he is faced in his office or clinic by a narcotic addict, a man with a gunshot wound, or a young couple seeking a blood test. He is face-to-face with the law when he is required to render an aggravating array of governmental reports or to preserve physical evidence for the benefit of a law enforcement agency. The physician, in fact, finds a great deal of the law intensely irritating, often because he is not absolutely clear as to its purpose.
The following subjects deal with all the above aspects of Law and medicine. # Forensic Medicine # Medical Jurisprudence # Toxicology
Medical jurisprudence is the application of medical science to legal problems. It is typically involved in cases concerning blood relationship, mental illness, injury, or death resulting from violence. Autopsy is often used to determine the cause of death, particularly in cases where foul play is suspected. Post-mortem examination can determine not only the immediate agent of death (e.g. gunshot wound, poison), but may also yield important contextual information, such as how long the person has been dead, which can help trace the killing. Forensic medicine has also become increasingly important in cases involving rape. Modern techniques use such specimens as semen, blood, and hair samples of the criminal found in the victim's bodies, which can be compared to the defendant's genetic makeup through a technique known as DNA fingerprinting; this technique may also be used to identify the body of a victim. The establishment of serious mental illness by a licensed psychologist can be used in demonstrating incompetence to stand trial, a technique which may be used in the insanity defense, albeit infrequently.
Autopsy:Autopsy is the systematic examination of a cadaver for study or for determining the cause of death. Autopsy means "see for yourself". It is a special surgical operation, performed by specially trained physicians, on a dead body. Its purpose is to learn the truth about the person's health during life, and how the person really died. Autopsies, also known as necropsies, postmortems, or postmortem examinations, use many methodical procedures to determine the etiology and pathogenesis of diseases, for epidemiologic purposes, for establishment of genetic causes, and for family counsel. There are many advantages to getting an autopsy. Even when the law does not require it, there is always something interesting for the family to know. Post-mortems may be performed at the request of the authorities in cases of unexplained and suspicious death or where a physician did not attend death. In other circumstances post-mortem examination may be performed only with the consent of the deceased's family or with permission granted by the person himself before death. These examinations are more frequently being used for the acquiring of organs and tissues for transplantation. Valuable medical information can be learned from a post-mortem examination. Legionnaire's disease, for example, was discovered as a result of autopsies, and improved safety standards have resulted from the examination of the bodies of crash victims.
The autopsy deals with the particular illness as evidenced in one individual and is more than simply a statistical average. Every autopsy is important to expose mistakes, to delimit new diseases and new patterns of disease, and to guide future studies. Morbidity and mortality statistics acquire accuracy and significance when based on careful autopsies. The autopsy procedure itself has changed very little during the 20th century. It is a detailed examination of a body and each of its part, not only superficially but also through various tests on tissue in labs. Its purpose is to learn the truth about the person's health during life, and how the person really died. Apparently, autopsies are being performed with decreasing frequently. Where earlier in the century as many as half of all bodies had autopsies performed, now only 5-10 percent of corpses undergo the procedure. Generally, an autopsy is only done when there is some cause of doubt as to the cause of death, although the family of the deceased can always request an autopsy even if the hospital doesn't think it necessary. The first step is a gross examination of the exterior for any abnormality or trauma and a careful description of the interior of the body and its organs. This is usually followed by further studies, including microscopic examination of cells and tissues. Then the pathologist proceeds to the dissection, which consists of removing and examining carefully all parts of the body.
DNA Fingerprinting:DNA fingerprinting or DNA profiling or any of the several similar techniques for analyzing and comparing DNA from separate sources are used especially in law enforcement to identify suspects from hair, blood, semen, or other biological materials found at the scene of a violent crime. It depends on the fact that no two people, save identical twins, have exactly the same DNA sequence, and that although only limited segments of a person's DNA are scrutinized in the procedure, those segments will be statistically unique. The DNA samples of the culprit can be obtained from the scene of crime itself. For example blood samples from a scene of murder or samples of seminal fluids deposited on the clothes or furniture or in the body of the victim of rape can be used to acquire a sample of the culprits DNA. These samples can be compared with those taken from a possible suspect in the case.
DNA evidence, apart from its use in criminal law to determine the killer or the rapist, is also employed for various other purposes. Amongst its varied applications, Paternity testing, Personal identification (of a mutilated body or skeletal remains), study of the evolution of the human population and study of inherited diseases like Alzheimers disease etc. are included.
The success rate in solving complex cases in Criminal Law has greatly increased after the discovery and use of DNA evidence technologies. The introduction of DNA evidence in the field of Criminal law has particularly facilitated convictions in the matters involving the offence of Rape.
Prior to the use of DNA evidence, matters involving the offence of rape could be solved primarily by circumstantial evidence only. It was very difficult for the victim of rape to prove the offence in the absence of either circumstantial evidence or an eyewitness, which was very rare. Since, the introduction of the DNA evidence, this has been greatly simplified. First samples of the seminal fluids found at the scene of crime by the investigating officer are analysed. If this is not available, then samples of the seminal fluid are extracted from the victims body itself. The DNA from this sample is then compared with the DNA sample taken from the accused. If the report establishes that these samples match, then this acts as evidence in the court proving rape.
As regards the offence of murder, DNA samples that are collected from the blood, mucous, saliva, skin, hair samples etc, found on the crime scene are employed to extract the DNA sample. This provides for a very effective technique to nail the culprit.
DNA testing should be viewed against the fact that the growing citizen concern over crime is not merely about mounting statistics. It is also over the detectives' inability to solve many gruesome crimes. The question that is often asked is how far the police are equipped to handle investigations using modern science and technology, and how far does the current law of evidence in the country recognize evidence gathered from such tests. There is more than a trace of popular cynicism over police willingness to spurn third degree methods in favour of scientific investigation. It is mainly in this context that many critics of police performance raise the issue of DNA profiling frequently.
Apart from its use to nail the culprit, Post-conviction DNA Testing is also a very effective method to exonerate the innocent. The sophisticated technology makes it possible to obtain conclusive results in cases in which the previous testing had been inconclusive. Post-conviction testing will be requested not only in cases in which the DNA testing was never done but also in cases in which more refined technology may result in an indisputable answer.
The remarkable feature of DNA is that individuals leave at least traces of it almost everywhere. A few of the everyday objects handled by us, such as pens, telephones, mugs and keys are some of the things that require attention from a crime investigator. A variety of offences such as murder, rape, armed robbery; extortion and drug trafficking yield themselves to the application of DNA collection and testing. According to a study by the National Institute of Justice (NIJ) of the United States' Justice Department, there are many unusual sources of DNA evidence that need to be explored by an investigator. These include saliva found on the flap of an envelope containing a threat letter, spittle collected from the sidewalk where a suspect in a sexual assault case was under surveillance and blood collected from a bullet that had injured an assailant himself in a case of murder.
Collection of samples at a scene of crime requires some skill and observance of basic rules of hygiene. There are two dangers here. One is that, as in the case of hand fingerprints, there is a distinct possibility of several persons having left their DNA behind in a scene of crime. The need, therefore, is to identify all visitors and collecting their samples also (apart from those of the victim/suspect). This assiduous process can try an officer's patience. Secondly, DNA samples are extremely susceptible to contamination. It is essential that the technicians collecting the sample adopt all precautions that a surgeon would while performing a critical surgery. Any slackness could render the entire operation wasteful and susceptible to easy picking of holes by the defense counsel during a trial.
Benefits of Medical Jurisprudence:The introduction of medical jurisprudence has immensely benefited both the medical and the legal field of work. A better understanding and cooperation has resulted and has facilitated a smoother working of both disciplines.
Previously unsolvable cases are now solved with ease with the development of the field of medical jurisprudence. It covers in its ambit the provision of evidence for a wide range and scope of cases. It can be used to determine the Paternity of a child and also be employed in determining the identity of human bodies, which have been mutilated beyond recognition in accidents like bomb blasts, factory explosions etc. In the field of Evidence Laws, it can be appropriated to solve cases involving murder, rape etc. Medical jurisprudence techniques like autopsy can also be employed to discover important facts vital to the case after the person has died.
However, despite their vast benefits to the field of law, medical jurisprudential techniques are not treated as primary evidence till date. The present Indian Evidence Act continues to treat technical findings, such as the results of DNA tests, as expert evidence. This situation will continue till a legislation is drafted and enacted by the Parliament.
Under section 45 of the Indian Evidence Act, 1872, it has been, inter alia, provided that, when the court has to form an opinion upon a point of science, or art, or as to identity of handwriting or finger impression, the opinions upon the point of persons specially skilled in science or art or any question as to identity of handwriting or finger impressions are relevant facts and such persons are called experts. The expression opinions upon a point of science of persons specially skilled in science is capable of application to all future advances in science which enable an expert opinion on a point.
Due to the heavy misuse and lack of knowledge of the courts as regards scientific evidence, they are hesitant in applying these techniques. In order to determine whether scientific evidence is admissible, the court may consider-(1) whether the principle or technique has been or can be reliably tested,(2) whether it has been subjected to peer review or publication,(3) its known or potential rate of error,(4) whether there are standards or organizations controlling the procedures of the technique,(5) whether it is generally accepted by the community, and(6) whether the technique was created or conducted independently of the litigation.
The situation appears hearty only as regards autopsy reports, which have been given the status of documentary evidence under the Indian Evidence Act. The merit attached to them, however, remains subjective and varies from case to case. The complete benefit of these medical jurisprudential techniques can be enjoyed only by an enactment recognizing these techniques as primary evidence, giving it the credit it deserves.
The following subjects deal with all the above aspects of Law and medicine. # Forensic Medicine # Medical Jurisprudence # Toxicology
Medical jurisprudence is the application of medical science to legal problems. It is typically involved in cases concerning blood relationship, mental illness, injury, or death resulting from violence. Autopsy is often used to determine the cause of death, particularly in cases where foul play is suspected. Post-mortem examination can determine not only the immediate agent of death (e.g. gunshot wound, poison), but may also yield important contextual information, such as how long the person has been dead, which can help trace the killing. Forensic medicine has also become increasingly important in cases involving rape. Modern techniques use such specimens as semen, blood, and hair samples of the criminal found in the victim's bodies, which can be compared to the defendant's genetic makeup through a technique known as DNA fingerprinting; this technique may also be used to identify the body of a victim. The establishment of serious mental illness by a licensed psychologist can be used in demonstrating incompetence to stand trial, a technique which may be used in the insanity defense, albeit infrequently.
Autopsy:Autopsy is the systematic examination of a cadaver for study or for determining the cause of death. Autopsy means "see for yourself". It is a special surgical operation, performed by specially trained physicians, on a dead body. Its purpose is to learn the truth about the person's health during life, and how the person really died. Autopsies, also known as necropsies, postmortems, or postmortem examinations, use many methodical procedures to determine the etiology and pathogenesis of diseases, for epidemiologic purposes, for establishment of genetic causes, and for family counsel. There are many advantages to getting an autopsy. Even when the law does not require it, there is always something interesting for the family to know. Post-mortems may be performed at the request of the authorities in cases of unexplained and suspicious death or where a physician did not attend death. In other circumstances post-mortem examination may be performed only with the consent of the deceased's family or with permission granted by the person himself before death. These examinations are more frequently being used for the acquiring of organs and tissues for transplantation. Valuable medical information can be learned from a post-mortem examination. Legionnaire's disease, for example, was discovered as a result of autopsies, and improved safety standards have resulted from the examination of the bodies of crash victims.
The autopsy deals with the particular illness as evidenced in one individual and is more than simply a statistical average. Every autopsy is important to expose mistakes, to delimit new diseases and new patterns of disease, and to guide future studies. Morbidity and mortality statistics acquire accuracy and significance when based on careful autopsies. The autopsy procedure itself has changed very little during the 20th century. It is a detailed examination of a body and each of its part, not only superficially but also through various tests on tissue in labs. Its purpose is to learn the truth about the person's health during life, and how the person really died. Apparently, autopsies are being performed with decreasing frequently. Where earlier in the century as many as half of all bodies had autopsies performed, now only 5-10 percent of corpses undergo the procedure. Generally, an autopsy is only done when there is some cause of doubt as to the cause of death, although the family of the deceased can always request an autopsy even if the hospital doesn't think it necessary. The first step is a gross examination of the exterior for any abnormality or trauma and a careful description of the interior of the body and its organs. This is usually followed by further studies, including microscopic examination of cells and tissues. Then the pathologist proceeds to the dissection, which consists of removing and examining carefully all parts of the body.
DNA Fingerprinting:DNA fingerprinting or DNA profiling or any of the several similar techniques for analyzing and comparing DNA from separate sources are used especially in law enforcement to identify suspects from hair, blood, semen, or other biological materials found at the scene of a violent crime. It depends on the fact that no two people, save identical twins, have exactly the same DNA sequence, and that although only limited segments of a person's DNA are scrutinized in the procedure, those segments will be statistically unique. The DNA samples of the culprit can be obtained from the scene of crime itself. For example blood samples from a scene of murder or samples of seminal fluids deposited on the clothes or furniture or in the body of the victim of rape can be used to acquire a sample of the culprits DNA. These samples can be compared with those taken from a possible suspect in the case.
DNA evidence, apart from its use in criminal law to determine the killer or the rapist, is also employed for various other purposes. Amongst its varied applications, Paternity testing, Personal identification (of a mutilated body or skeletal remains), study of the evolution of the human population and study of inherited diseases like Alzheimers disease etc. are included.
The success rate in solving complex cases in Criminal Law has greatly increased after the discovery and use of DNA evidence technologies. The introduction of DNA evidence in the field of Criminal law has particularly facilitated convictions in the matters involving the offence of Rape.
Prior to the use of DNA evidence, matters involving the offence of rape could be solved primarily by circumstantial evidence only. It was very difficult for the victim of rape to prove the offence in the absence of either circumstantial evidence or an eyewitness, which was very rare. Since, the introduction of the DNA evidence, this has been greatly simplified. First samples of the seminal fluids found at the scene of crime by the investigating officer are analysed. If this is not available, then samples of the seminal fluid are extracted from the victims body itself. The DNA from this sample is then compared with the DNA sample taken from the accused. If the report establishes that these samples match, then this acts as evidence in the court proving rape.
As regards the offence of murder, DNA samples that are collected from the blood, mucous, saliva, skin, hair samples etc, found on the crime scene are employed to extract the DNA sample. This provides for a very effective technique to nail the culprit.
DNA testing should be viewed against the fact that the growing citizen concern over crime is not merely about mounting statistics. It is also over the detectives' inability to solve many gruesome crimes. The question that is often asked is how far the police are equipped to handle investigations using modern science and technology, and how far does the current law of evidence in the country recognize evidence gathered from such tests. There is more than a trace of popular cynicism over police willingness to spurn third degree methods in favour of scientific investigation. It is mainly in this context that many critics of police performance raise the issue of DNA profiling frequently.
Apart from its use to nail the culprit, Post-conviction DNA Testing is also a very effective method to exonerate the innocent. The sophisticated technology makes it possible to obtain conclusive results in cases in which the previous testing had been inconclusive. Post-conviction testing will be requested not only in cases in which the DNA testing was never done but also in cases in which more refined technology may result in an indisputable answer.
The remarkable feature of DNA is that individuals leave at least traces of it almost everywhere. A few of the everyday objects handled by us, such as pens, telephones, mugs and keys are some of the things that require attention from a crime investigator. A variety of offences such as murder, rape, armed robbery; extortion and drug trafficking yield themselves to the application of DNA collection and testing. According to a study by the National Institute of Justice (NIJ) of the United States' Justice Department, there are many unusual sources of DNA evidence that need to be explored by an investigator. These include saliva found on the flap of an envelope containing a threat letter, spittle collected from the sidewalk where a suspect in a sexual assault case was under surveillance and blood collected from a bullet that had injured an assailant himself in a case of murder.
Collection of samples at a scene of crime requires some skill and observance of basic rules of hygiene. There are two dangers here. One is that, as in the case of hand fingerprints, there is a distinct possibility of several persons having left their DNA behind in a scene of crime. The need, therefore, is to identify all visitors and collecting their samples also (apart from those of the victim/suspect). This assiduous process can try an officer's patience. Secondly, DNA samples are extremely susceptible to contamination. It is essential that the technicians collecting the sample adopt all precautions that a surgeon would while performing a critical surgery. Any slackness could render the entire operation wasteful and susceptible to easy picking of holes by the defense counsel during a trial.
Benefits of Medical Jurisprudence:The introduction of medical jurisprudence has immensely benefited both the medical and the legal field of work. A better understanding and cooperation has resulted and has facilitated a smoother working of both disciplines.
Previously unsolvable cases are now solved with ease with the development of the field of medical jurisprudence. It covers in its ambit the provision of evidence for a wide range and scope of cases. It can be used to determine the Paternity of a child and also be employed in determining the identity of human bodies, which have been mutilated beyond recognition in accidents like bomb blasts, factory explosions etc. In the field of Evidence Laws, it can be appropriated to solve cases involving murder, rape etc. Medical jurisprudence techniques like autopsy can also be employed to discover important facts vital to the case after the person has died.
However, despite their vast benefits to the field of law, medical jurisprudential techniques are not treated as primary evidence till date. The present Indian Evidence Act continues to treat technical findings, such as the results of DNA tests, as expert evidence. This situation will continue till a legislation is drafted and enacted by the Parliament.
Under section 45 of the Indian Evidence Act, 1872, it has been, inter alia, provided that, when the court has to form an opinion upon a point of science, or art, or as to identity of handwriting or finger impression, the opinions upon the point of persons specially skilled in science or art or any question as to identity of handwriting or finger impressions are relevant facts and such persons are called experts. The expression opinions upon a point of science of persons specially skilled in science is capable of application to all future advances in science which enable an expert opinion on a point.
Due to the heavy misuse and lack of knowledge of the courts as regards scientific evidence, they are hesitant in applying these techniques. In order to determine whether scientific evidence is admissible, the court may consider-(1) whether the principle or technique has been or can be reliably tested,(2) whether it has been subjected to peer review or publication,(3) its known or potential rate of error,(4) whether there are standards or organizations controlling the procedures of the technique,(5) whether it is generally accepted by the community, and(6) whether the technique was created or conducted independently of the litigation.
The situation appears hearty only as regards autopsy reports, which have been given the status of documentary evidence under the Indian Evidence Act. The merit attached to them, however, remains subjective and varies from case to case. The complete benefit of these medical jurisprudential techniques can be enjoyed only by an enactment recognizing these techniques as primary evidence, giving it the credit it deserves.
Archive:
(*) Managing Intellectual property
(*) Nature & Functions Of Intellectual Property Law
(*) I P Rights- A Boon To Indian Companies
(*) Priviledged Legal Communications
(*) Contractual Validity Of "E-Contracts"
(*) I.T. Act - Amendments
(*) Cyber-Crime Hardships To Curb It
(*) Media Laws - An Overview
(*) Cyber Squatting- Clear and Present Danger
(*) The Menace Of Cyber Crime
(*) Cyber Ethics
(*) Nature & Functions Of Intellectual Property Law
(*) I P Rights- A Boon To Indian Companies
(*) Priviledged Legal Communications
(*) Contractual Validity Of "E-Contracts"
(*) I.T. Act - Amendments
(*) Cyber-Crime Hardships To Curb It
(*) Media Laws - An Overview
(*) Cyber Squatting- Clear and Present Danger
(*) The Menace Of Cyber Crime
(*) Cyber Ethics
Patent:
Patent Regime And Right To HealthIndira Gandhi declared India's policy when she said, "idea of a better world is one
Patent Amendment Act, 2005- An Over ViewThe intellectual property in India is important at all levels of statutory, administrative and judiciary. India ratified the agreement establishing
Patents and Geographical IndicationA patent is a monopoly right granted to person who has invented a new and useful article ....
Geographical Indication And BasmatiIntellectual Property is outcome of ones intellect and is different from .....
India In Pharmaceutical Patents RegimeTRIPs, the intellectual property component of the Uruguay round of the GATT Treaty, .....
The Patent (Second) Amendment BillThe Patent (Second Amendment) Bill 2000 has been proposed by the Govt to bridge the conflict between the TRIPS and the Patent Act, 1970....
Patenting Of Medicines:global health crisis is at hand. Millions of people die each year from infectious diseases that are treatable...
The ethics of DNA Patentingbiology was radically transformed by the discovery of the double helical structure of DNA....
Patent Amendment Act, 2005- An Over ViewThe intellectual property in India is important at all levels of statutory, administrative and judiciary. India ratified the agreement establishing
Patents and Geographical IndicationA patent is a monopoly right granted to person who has invented a new and useful article ....
Geographical Indication And BasmatiIntellectual Property is outcome of ones intellect and is different from .....
India In Pharmaceutical Patents RegimeTRIPs, the intellectual property component of the Uruguay round of the GATT Treaty, .....
The Patent (Second) Amendment BillThe Patent (Second Amendment) Bill 2000 has been proposed by the Govt to bridge the conflict between the TRIPS and the Patent Act, 1970....
Patenting Of Medicines:global health crisis is at hand. Millions of people die each year from infectious diseases that are treatable...
The ethics of DNA Patentingbiology was radically transformed by the discovery of the double helical structure of DNA....
Latest Additions
Outsourcing To India - Legal And Tax Considerations: Over the last few years, India has emerged as a leading destination for companies wishing to outsource their software development
E-Contracts & Its Legality:Today with the recent advancement in the areas of computer technology, telecommunications technology, software and information technology
Censorship Of Video GamesOver the last few years, governments around the world have been firing shots across the bow of the Interactive Video Game Industry
MultimediaMultimedia is a term of complex meanings and divergent definitions within the business community
The Nature And Functions Of IPLawPrincipal object of intellectual property is to ensure consumers a varied variety of products at the lowest possible price.
E-Contracts & Its Legality:Today with the recent advancement in the areas of computer technology, telecommunications technology, software and information technology
Censorship Of Video GamesOver the last few years, governments around the world have been firing shots across the bow of the Interactive Video Game Industry
MultimediaMultimedia is a term of complex meanings and divergent definitions within the business community
The Nature And Functions Of IPLawPrincipal object of intellectual property is to ensure consumers a varied variety of products at the lowest possible price.
Cyber Laws:
Spam: Is it time to legislate?Spamming is truly the scourge of the Information Age. This problem has become so widespread that it has begun to burden our information infrastructure.
Defamation in Cyber SpaceInternet is a cheap, fast means of international communication of text, sound or image. In other words, an information resource
Cyber Squatting- Clear and Present DangerIn the new e-economy it is commercially prudent for a company to have an easily traceable address in the cyber-space
Contractual Validity Of "E-Contracts": An OverviewIt is quite unlikely for most computer literate people in India that a day has passed without him or her coming across a point
Cyber Hacking'Hackers' are very intelligent people who use their skill in a constructive and positive manner.....
Electronic Contracttraditional notion of contract formation, negotiating parties must come to a "meeting of the minds"....
Cyber Crimesfirst recorded cyber crime took place in the year 1820....
The Bpo StrategyBusiness Process Outsourcing (BPO) is a buzzword among the corporate in the world today...
Need For Conversion Of The Convergence BillThe Communication Convergence Bill, is on the verge of being enacted and changing the Indian communication machinery....
Data Safety And Privacy ProtectionAs the situation now warranty legislation of data protection in India, visitors to any website want reassurances that privacy rights....
The Menace Of Cyber CrimeIn the information age the rapid development of computers, telecommunications and other technologies has led to the evolution of new forms of trans-national crimes.....
Cyber-ElectionsIts in-serverability has grown to such heights that perhaps George Bernard Shaw would have expressed as ‘Cyber-web here, cyber-web there, and cyber-web everywhere".....
Defamation on the web: Who do you sue?The law of defamation addresses harm to a person's reputation or good name through slander and libel.....
Cyber-Crime Hardships To Curb ItCrime is an act or omission, which is prohibited by the law particularly criminal. Cyber-Crime is the latest and perhaps the most specialized and dynamic field in cyber-laws......
Cyber EthicsIn legal phraseology and prospectus are very wide terms and very much intermingled. These cannot be confined by......
Internet telephony and related IssuesThe focus of the article is to examine the impact of the proposed Communications Convergence Bill on e-commerce.
Defamation in Cyber SpaceInternet is a cheap, fast means of international communication of text, sound or image. In other words, an information resource
Cyber Squatting- Clear and Present DangerIn the new e-economy it is commercially prudent for a company to have an easily traceable address in the cyber-space
Contractual Validity Of "E-Contracts": An OverviewIt is quite unlikely for most computer literate people in India that a day has passed without him or her coming across a point
Cyber Hacking'Hackers' are very intelligent people who use their skill in a constructive and positive manner.....
Electronic Contracttraditional notion of contract formation, negotiating parties must come to a "meeting of the minds"....
Cyber Crimesfirst recorded cyber crime took place in the year 1820....
The Bpo StrategyBusiness Process Outsourcing (BPO) is a buzzword among the corporate in the world today...
Need For Conversion Of The Convergence BillThe Communication Convergence Bill, is on the verge of being enacted and changing the Indian communication machinery....
Data Safety And Privacy ProtectionAs the situation now warranty legislation of data protection in India, visitors to any website want reassurances that privacy rights....
The Menace Of Cyber CrimeIn the information age the rapid development of computers, telecommunications and other technologies has led to the evolution of new forms of trans-national crimes.....
Cyber-ElectionsIts in-serverability has grown to such heights that perhaps George Bernard Shaw would have expressed as ‘Cyber-web here, cyber-web there, and cyber-web everywhere".....
Defamation on the web: Who do you sue?The law of defamation addresses harm to a person's reputation or good name through slander and libel.....
Cyber-Crime Hardships To Curb ItCrime is an act or omission, which is prohibited by the law particularly criminal. Cyber-Crime is the latest and perhaps the most specialized and dynamic field in cyber-laws......
Cyber EthicsIn legal phraseology and prospectus are very wide terms and very much intermingled. These cannot be confined by......
Internet telephony and related IssuesThe focus of the article is to examine the impact of the proposed Communications Convergence Bill on e-commerce.
Criminal cartel offences in United Kingdom
The pressing need to introduce a criminal cartel offence arose primarily because of the fact that the activities of cartels or agreements to form such cartels were proving grossly detrimental to the competition in the economy of UK. A healthy competition is indispensable for the growth of the economy and if that is stifled, the whole economic structure is destroyed and the growth of the country is bound to become unsteady.
A ‘cartel’ is basically, a union of producers, distributors, sellers, service providers or traders, who by contracts between themselves try to control the production, distribution, sale or price of or trade in certain goods or provision of services. In other words, they try to control or manipulate the market for their benefit. A cartel has been defined under section 188 of the Enterprise Act, 2002 which states that an individual will be guilty of an offence if he dishonestly agrees with one or more other persons to make or to implement or to cause to be made or to be implemented arrangements between at least two undertakings that are described as prohibited activities. These are price fixing, the limitation of production or supply, market sharing; and bid rigging.
Thus a cartel, as understood under this Act is such an association whose chief and primary motive is to practice anti-competitive activities which affect sound competition, adversely. Otherwise, agreements forming cartels are not null and void per se . It is only when the persons/enterprises form it with mala fide intentions and works dishonestly to suppress competition, is it considered unlawful and void . In the case of Mogul Steamship Company v. McGregor Gow & Co., the Court of Appeal has pronounced that "the right of the individual to carry on his trade or business in the manner he considers best in his own interests involves the right of combining with others in a common course of action, provided such common course of action is undertaken with a single view to the interests of the combining parties and not with a view to injure others"
But initially in England cartel agreements were not held void. They were merely regarded as criminal conspiracies which were indictable only when the element of dishonesty was present. The case of Attorney - General of the Commonwealth of Australia v. Adelaide Steamship Co. Ltd, clarifies this fact. Thus the parties were free to act upon the terms of the contract, even if it was unenforceable under law. But subsequently, there was a shift in the outlook and cartel practices came to be recognized as improper and illegal and no irrelevant defenses were entertained. This view was upheld in the case of Scott v. Brown, Doering, McNab &Co.
However, there are certain cartels which are approved by the UK government and are granted exemptions from regulatory penalties. These are ‘Joint Venture agreements’ for the production of new products which cannot be produced without the contribution of both the parties to the agreement. But some restrictions are imposed on the market share of the joint venture agreement too.
The problem faced by the UK government was that it was getting extremely difficult to control the activities of cartels which were impairing the competition and were proving destructive for the economy. The cartels mainly try to limit competition by engaging in anti-competitive practices like exclusive supply agreement, tie-in-arrangement, resale price maintenance, bid-rigging, price-fixing, etc. They aim at driving their competitors out of the market in order to have full control over the market. Once they acquire the said control in particular goods or services, they tend to unreasonably raise the prices of goods/services; restrict the production or distribution thereof and perform such other practices which make the very existence of a cartel an illegal exercise. Despite the fact that the Competition Act which was in force and imposed heavy fine on the enterprises engaged in cartel activities, these enterprises continued their dealings undaunted even after being exposed. To control such a ruthless behavior government decided to take severe measures.
Moreover, the biggest lacuna in the Competition Act, 1998 was that it sought to punish the enterprise, while the persons comprising it went scratch-free and because of this loophole, cartels multiplied and were not afraid of the liability/punishment under the Act. The prevailing situation was that once a cartel was ordered to terminate its activities or to close down altogether, it resumed its dealings or a fresh cartel was formed, respectively, within a short span of time, rudely ignoring the order. Thus, controlling them had become a Herculean task and stringent and stern action was the need of the hour. Hence the Parliament enacted the Enterprise Act, 2002. The idea of formation of criminal cartel offence was first proposed by the ‘DTI White Paper: A World Class Competition Regime.’ This paper mainly talked about the pharmaceutical cartel formed to fix prices and share markets in the sale and distribution of certain vitamins. The cartel went unnoticed for a decade and it produced $ 500 million in US alone. But when the sinister practice was exposed the directors were successfully prosecuted and fine of $1 billion was imposed along with a term of imprisonment.
The Enterprise Act, 2002 mainly concentrates on imposition of criminal liability on the individuals. The principle of independent corporate existence as enunciated in the case of Salomon v. Salomon & Co. implies that after incorporation an enterprise acquires its own corporate existence. It becomes a body corporate and is distinct and separate from the members constituting it. However, this principle cannot be stretched to unnatural limits. It must not be forgotten that an enterprise is comprised of individuals only, who are the brains behind its workings. A business does not have any hands or brains of its own to work so it cannot be held responsible for any dishonest, illegal activities. With the enactment of the Enterprise Act in 2002, the persons working behind the ‘corporate veil’ are caught hold of and strict sanctions are imposed on them. This certainly has a strong deterrent effect because earlier, only fines were imposed on cartels for engaging in illegal activities, but now the persons engaging in them are punished with fine or imprisonment or both and in some cases disqualification orders are passed against individuals, the effect of which is that such individual cannot engage further in any other business. It is pertinent to mention that the current Act does not supplant, but supplements the earlier enactment. Thus the regime of the Competition Act would continue alongside the criminal cartel offences.
According to the Act of 2002 cartel offence is aimed at those involved in:1. Price-fixing agreements;2. Agreements to limit supply or production of goods or services;3. Agreements to share out markets or customers;4. Bid-rigging agreements.
For holding a person liable under this Act, it is significant to prove two elements. Firstly, that he has acted ‘dishonestly’ while he is a member of a cartel i.e. he has bad intentions to injure the competition, economy, consumers, etc. Mere negligence is not sufficient to convict him for a cartel offence. The test of dishonesty has been best explained in the case of R v. Gosh.
The second element is ‘reciprocity’ in the horizontal cartel agreements [i.e." agreements relating to products or services at the same level in the supply chain" ]. This means that a person cannot be punished if he tries to control prices alone; he is punished if he commits a cartel offence in collusion with other persons. Vertical cartel agreements [which operate at different supply chains between the undertakings e.g. between a distributor and a retailer or a manufacturer and distributor] do not come under the purview of the Act. Thus, an agreement to form a cartel between two or more persons must exist. Further, under the Act it is absolutely not necessary to show that an implementation of the cartel agreement was done, even if it is shown that the cartel agreement was entered into with dishonest intent, the parties to such contract/agreement cannot escape liability.
Under, both the new and the old Act, exemptions are granted to ‘whistle blowers’ against prosecution and punishment. Whistleblowers, basically, are the persons who assist the OFT in nabbing the persons involved in prohibited acts. In the event of investigation, the OFT does not prosecute some persons, who otherwise are liable to prosecution for a cartel offence. They are prevented from being prosecuted because of the ‘no-action’ letters issued to them for which the condition precedent is that the person to whom it is issued has not instigated or compelled other persons for involving themselves in cartel offences or he had not played a chief role in the formation of the cartel. He is a person who now wants to cooperate with the OFT to nab other perpetrators. This is also termed as the ‘leniency and no-action policy’ of OFT.
Prior to the enactment of the Enterprise Act, the Competition Act, 1998 was in force and by way of that Act only civil liability was imposed on the enterprises engaging in cartel activities. Since the latter was found incapable of preventing cartel activities, the Enterprise Act, 2002 was formed to assist it in such prevention. Earlier, when an enterprise was found distorting or disturbing competition or abusing its dominant position, financial liability was imposed on it. The punishments were, a heavy fine imposed which amounted to 10% of the annual worldwide turnover of the enterprise. But prior to such imposition, the OFT had to prove that the enterprise was engaged in an illegal activity. Another method to restrain enterprises was the "Naming and shaming" policy. This is basically resorted to, to adversely affect the reputation of the enterprises so that consumers and the government get alert. It does play an efficacious role in stopping illegal interference in economic advancements, yet has not a very strong curb. Thirdly, the persons affected by the cartel activities could only sue for damages for the loss suffered by them. A few of these still continue to be used as punishments. Despite the afore-mentioned liabilities, the cartels were not dissuaded from continuing with their dealings. Where a cartel was forced to close down, its members within a short span of time opened up another one and continued with their illegal activities.
The criminalization of cartel agreements and involvement in cartel activities has indeed played an important role in restricting illegal exercises in UK. Since the sanctions under the former Act were proving inadequate in curtailing them, the government enacted the Enterprise Act under which cartel offences were formed. Under the criminal law the guilt of the accused has to be proved beyond reasonable doubt and not ‘on the balance of probabilities’ as is required under the civil law.
In the end the author has to state briefly that the introduction of criminal cartel offence is an achievement and in the long run would save the economy of UK against the illegal activities of cartels. These cartels really have the potential to harm the country’s economy very badly and they may not even be traced for a long time like the pharmaceutical cartel could not be traced for a decade. Thus stringent and stiff action was needed to curb the criminal cartel offences from being performed by the individuals who constitute the enterprises, who went unnoticed prior to the enactment of the Act of 2002.
A ‘cartel’ is basically, a union of producers, distributors, sellers, service providers or traders, who by contracts between themselves try to control the production, distribution, sale or price of or trade in certain goods or provision of services. In other words, they try to control or manipulate the market for their benefit. A cartel has been defined under section 188 of the Enterprise Act, 2002 which states that an individual will be guilty of an offence if he dishonestly agrees with one or more other persons to make or to implement or to cause to be made or to be implemented arrangements between at least two undertakings that are described as prohibited activities. These are price fixing, the limitation of production or supply, market sharing; and bid rigging.
Thus a cartel, as understood under this Act is such an association whose chief and primary motive is to practice anti-competitive activities which affect sound competition, adversely. Otherwise, agreements forming cartels are not null and void per se . It is only when the persons/enterprises form it with mala fide intentions and works dishonestly to suppress competition, is it considered unlawful and void . In the case of Mogul Steamship Company v. McGregor Gow & Co., the Court of Appeal has pronounced that "the right of the individual to carry on his trade or business in the manner he considers best in his own interests involves the right of combining with others in a common course of action, provided such common course of action is undertaken with a single view to the interests of the combining parties and not with a view to injure others"
But initially in England cartel agreements were not held void. They were merely regarded as criminal conspiracies which were indictable only when the element of dishonesty was present. The case of Attorney - General of the Commonwealth of Australia v. Adelaide Steamship Co. Ltd, clarifies this fact. Thus the parties were free to act upon the terms of the contract, even if it was unenforceable under law. But subsequently, there was a shift in the outlook and cartel practices came to be recognized as improper and illegal and no irrelevant defenses were entertained. This view was upheld in the case of Scott v. Brown, Doering, McNab &Co.
However, there are certain cartels which are approved by the UK government and are granted exemptions from regulatory penalties. These are ‘Joint Venture agreements’ for the production of new products which cannot be produced without the contribution of both the parties to the agreement. But some restrictions are imposed on the market share of the joint venture agreement too.
The problem faced by the UK government was that it was getting extremely difficult to control the activities of cartels which were impairing the competition and were proving destructive for the economy. The cartels mainly try to limit competition by engaging in anti-competitive practices like exclusive supply agreement, tie-in-arrangement, resale price maintenance, bid-rigging, price-fixing, etc. They aim at driving their competitors out of the market in order to have full control over the market. Once they acquire the said control in particular goods or services, they tend to unreasonably raise the prices of goods/services; restrict the production or distribution thereof and perform such other practices which make the very existence of a cartel an illegal exercise. Despite the fact that the Competition Act which was in force and imposed heavy fine on the enterprises engaged in cartel activities, these enterprises continued their dealings undaunted even after being exposed. To control such a ruthless behavior government decided to take severe measures.
Moreover, the biggest lacuna in the Competition Act, 1998 was that it sought to punish the enterprise, while the persons comprising it went scratch-free and because of this loophole, cartels multiplied and were not afraid of the liability/punishment under the Act. The prevailing situation was that once a cartel was ordered to terminate its activities or to close down altogether, it resumed its dealings or a fresh cartel was formed, respectively, within a short span of time, rudely ignoring the order. Thus, controlling them had become a Herculean task and stringent and stern action was the need of the hour. Hence the Parliament enacted the Enterprise Act, 2002. The idea of formation of criminal cartel offence was first proposed by the ‘DTI White Paper: A World Class Competition Regime.’ This paper mainly talked about the pharmaceutical cartel formed to fix prices and share markets in the sale and distribution of certain vitamins. The cartel went unnoticed for a decade and it produced $ 500 million in US alone. But when the sinister practice was exposed the directors were successfully prosecuted and fine of $1 billion was imposed along with a term of imprisonment.
The Enterprise Act, 2002 mainly concentrates on imposition of criminal liability on the individuals. The principle of independent corporate existence as enunciated in the case of Salomon v. Salomon & Co. implies that after incorporation an enterprise acquires its own corporate existence. It becomes a body corporate and is distinct and separate from the members constituting it. However, this principle cannot be stretched to unnatural limits. It must not be forgotten that an enterprise is comprised of individuals only, who are the brains behind its workings. A business does not have any hands or brains of its own to work so it cannot be held responsible for any dishonest, illegal activities. With the enactment of the Enterprise Act in 2002, the persons working behind the ‘corporate veil’ are caught hold of and strict sanctions are imposed on them. This certainly has a strong deterrent effect because earlier, only fines were imposed on cartels for engaging in illegal activities, but now the persons engaging in them are punished with fine or imprisonment or both and in some cases disqualification orders are passed against individuals, the effect of which is that such individual cannot engage further in any other business. It is pertinent to mention that the current Act does not supplant, but supplements the earlier enactment. Thus the regime of the Competition Act would continue alongside the criminal cartel offences.
According to the Act of 2002 cartel offence is aimed at those involved in:1. Price-fixing agreements;2. Agreements to limit supply or production of goods or services;3. Agreements to share out markets or customers;4. Bid-rigging agreements.
For holding a person liable under this Act, it is significant to prove two elements. Firstly, that he has acted ‘dishonestly’ while he is a member of a cartel i.e. he has bad intentions to injure the competition, economy, consumers, etc. Mere negligence is not sufficient to convict him for a cartel offence. The test of dishonesty has been best explained in the case of R v. Gosh.
The second element is ‘reciprocity’ in the horizontal cartel agreements [i.e." agreements relating to products or services at the same level in the supply chain" ]. This means that a person cannot be punished if he tries to control prices alone; he is punished if he commits a cartel offence in collusion with other persons. Vertical cartel agreements [which operate at different supply chains between the undertakings e.g. between a distributor and a retailer or a manufacturer and distributor] do not come under the purview of the Act. Thus, an agreement to form a cartel between two or more persons must exist. Further, under the Act it is absolutely not necessary to show that an implementation of the cartel agreement was done, even if it is shown that the cartel agreement was entered into with dishonest intent, the parties to such contract/agreement cannot escape liability.
Under, both the new and the old Act, exemptions are granted to ‘whistle blowers’ against prosecution and punishment. Whistleblowers, basically, are the persons who assist the OFT in nabbing the persons involved in prohibited acts. In the event of investigation, the OFT does not prosecute some persons, who otherwise are liable to prosecution for a cartel offence. They are prevented from being prosecuted because of the ‘no-action’ letters issued to them for which the condition precedent is that the person to whom it is issued has not instigated or compelled other persons for involving themselves in cartel offences or he had not played a chief role in the formation of the cartel. He is a person who now wants to cooperate with the OFT to nab other perpetrators. This is also termed as the ‘leniency and no-action policy’ of OFT.
Prior to the enactment of the Enterprise Act, the Competition Act, 1998 was in force and by way of that Act only civil liability was imposed on the enterprises engaging in cartel activities. Since the latter was found incapable of preventing cartel activities, the Enterprise Act, 2002 was formed to assist it in such prevention. Earlier, when an enterprise was found distorting or disturbing competition or abusing its dominant position, financial liability was imposed on it. The punishments were, a heavy fine imposed which amounted to 10% of the annual worldwide turnover of the enterprise. But prior to such imposition, the OFT had to prove that the enterprise was engaged in an illegal activity. Another method to restrain enterprises was the "Naming and shaming" policy. This is basically resorted to, to adversely affect the reputation of the enterprises so that consumers and the government get alert. It does play an efficacious role in stopping illegal interference in economic advancements, yet has not a very strong curb. Thirdly, the persons affected by the cartel activities could only sue for damages for the loss suffered by them. A few of these still continue to be used as punishments. Despite the afore-mentioned liabilities, the cartels were not dissuaded from continuing with their dealings. Where a cartel was forced to close down, its members within a short span of time opened up another one and continued with their illegal activities.
The criminalization of cartel agreements and involvement in cartel activities has indeed played an important role in restricting illegal exercises in UK. Since the sanctions under the former Act were proving inadequate in curtailing them, the government enacted the Enterprise Act under which cartel offences were formed. Under the criminal law the guilt of the accused has to be proved beyond reasonable doubt and not ‘on the balance of probabilities’ as is required under the civil law.
In the end the author has to state briefly that the introduction of criminal cartel offence is an achievement and in the long run would save the economy of UK against the illegal activities of cartels. These cartels really have the potential to harm the country’s economy very badly and they may not even be traced for a long time like the pharmaceutical cartel could not be traced for a decade. Thus stringent and stiff action was needed to curb the criminal cartel offences from being performed by the individuals who constitute the enterprises, who went unnoticed prior to the enactment of the Act of 2002.
DNA Technology and Section 112 of Indian Evidence Act, 1872: An Urgent Need for Amendment.
The wordings of Section 112 of Indian Evidence Act starts, stating, "Birth during marriage, conclusive proof of legitimacy". Here the legal presumption is similar to that of the Latin Maxim, ‘pater est quem muptice demonstrat’, meaning thereby, ‘he is the father whom the marriage indicates’. From ancient times, it is the presumption that if the husband was within the four seas, at any time during the pregnancy of wife, the presumption was conclusive that her children were legitimate. Under this section, there is a conclusive presumption that a child born during the continuance of a valid marriage is a legitimate issue of parents, no matter, how soon the birth is, after the marriage.
When we look into the reasoning behind this notion, the only reason which comes up, is that it is undesirable to enquire into the paternity of child whose mother and her husband, had between them, a subsisting marital status and had access to each other. The law presumes strongly in the favor of the legitimacy of the off-spring. The husband who is strongly disputing the point of legitimacy of the child, can only rebut on the issue of ‘access’ and ‘no-access’, otherwise the legitimacy, in every case, is deemed. The very objective of this section seems to be gender biased, from its commencement. And, to decide the conclusiveness, only on the basis of argument will not render the purpose of judiciary in true sense.
Moreover, there still lies an ambiguity in the contents of this section. Here the law states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth, is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Deciding this issue, on the recourse of legal arguments, is totally a faulty approach and the course, which we are following today, deliberately ends up in faulty conclusions.Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same.The Courts readily admits the scientific evidences in case of theft, rape, murder and what not. But it is far beyond the reasonable understanding as why the issue of legitimacy is left open, to be decided by the legal interpretations and not by scientific techniques.Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice. The development in DNA based studies is vast, complex and expanding on a monthly basis. Inspite of repeated legal challenges, mainly in the USA, no two persons other then identical twins, have been found to have identical DNA profiles, the possible number of presumptions far exceeding the population of the world. In paternity testing, DNA now allows positive determination of parenthood, rather than the statistical likelihood or exclusion offered by blood typing in former years. Further, there is one more recent technique whose probability of giving exact result is 99.9%. It is HLA testing. Blood group antigens, serum proteins, erythrocyte enzymes and salivary proteins are of importance in ascertaining the parentage with certainly and all of them are heritable characteristics, followed accepting genetic principles. When conventional blood group systems like ABO, Rh, MN, etc. are used in disputed parentage cases; the possibility of fixing the parentage cases, the possibility of fixing of HLA testing is used along with the conventional blood group systems in disputing parentage cases, the probability of fixing the parentage is about 99.9%.
Child Born During the Continuance of Valid Marriage.There is a strong presumption that if a child was born during continuance of marriage, it is immaterial, how soon after the marriage, it was born. Moreover, the Courts had reached to the conclusion, regarding the parenthood, only because of the fact that the wife and husband were living in a same room. Here we have to broaden our mentality, while analyzing this point. Mere living together, does not conclusively decide that they had intercourse. This is an issue of love, affection and basic understanding between each other. It is highly probable, in the social system, like ours that they are staying together only because of social restrictions or because of some obligations but might not have any commitment for each other. There also arises the possibility that one of the spouse id eager for a child whereas the other does not feel any need of the child. And, if under such circumstances if a child is born, then the medical reasoning should be brought into the scenario, to determine the parenthood of that child.
More so ever, in the Criminal matters the character of a person also plays an important role and is considerable. But, this section is not interpreted in this manner. If a woman, although married, still living an adulterous life, her character would not rebut the presumption of legitimacy of children within 209 days of possible sexual connection. Here we have to consider the point of adulterous conduct of wife. So, here if the husband is disputing the parenthood, then his submission had got substance and only medical recourse can be taken, to determine the ultimate conclusiveness. But a similar contention was raised and rejected in the case where it was held that’ ‘in the view of the admitted evidence that the wife was living with the husband in the same room; it should be presumed that the pregnancy was due to the cohabitation with the husband.
Similarly, where the child was born during the pendency of maintenance petition and the husband failed to prove "non-access" it was held that the child was legitimate off spring. But here, the point to be noted is that the wife was living an adulterous life. Even if the husband is seriously ill, then also the issue of presumption, under Section 112 cannot be rebutted. So, basically to the scope of this section is very narrowed down by such approach.
280 Days.This section also talks about the time period as to when the child is supposed to be born but it an entirely medical issue. Even, medical experts cannot tell us the exact day and time, as to when a child will be born. They could only suggest a certain probable time period. If we go through the wordings of the section then a time of 280 days is being seems to be settled. But, there is no rational behind this as why not, 260 or 300 days. And, even if, the medical experts do not have any firm stand on this point, then from where did the legal jurists brought the calculated numbers of 280 days. It is to be kept mind that the birth of a child is a biological process and not a mathematically equation. If we go through the case laws, on this point, it is led enough that different Courts have different views regarding this issue. If we look into ‘Modi’s Medical Jurisprudence and Toxicology’ , under heading, ‘The Maximum Period of Pregnancy’, various periods have been mentioned, starting from 315 days to a period of about 349 days. Another jurisprudential authority by Dr. Lyon in ‘Medical Jurisprudence for India’, it is stated that;‘What is the longest period, which in natural human gestation, may be:1. That this may be 296 days.2. Most authorities agree in considering that the interval may be as long as 44 weeks or 308 days; but it might also extend to 311 days.Some of the authorities consider that the interval may extend to 46 weeks-315 to 322 days. Conclusion.So, a final solution to all this dilemma and uncertainty can be the DNA mapping and comparison of DNA of a child and the parents. In the recent case of State through C.B.I. v. Amaramani Tripathi the paternity of a six months old fetus in the womb of deceased was conclusively established with the help of DNA test. Further, the Courts, these days, is heavily relying on scientific proofs, in the cases of murder and rape. Even there are cases where the conviction is made by following the medical evidences. So, it is high-time that the scientific aptitude should be brought in the issue of determination of legitimacy of a child.
When we look into the reasoning behind this notion, the only reason which comes up, is that it is undesirable to enquire into the paternity of child whose mother and her husband, had between them, a subsisting marital status and had access to each other. The law presumes strongly in the favor of the legitimacy of the off-spring. The husband who is strongly disputing the point of legitimacy of the child, can only rebut on the issue of ‘access’ and ‘no-access’, otherwise the legitimacy, in every case, is deemed. The very objective of this section seems to be gender biased, from its commencement. And, to decide the conclusiveness, only on the basis of argument will not render the purpose of judiciary in true sense.
Moreover, there still lies an ambiguity in the contents of this section. Here the law states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth, is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Deciding this issue, on the recourse of legal arguments, is totally a faulty approach and the course, which we are following today, deliberately ends up in faulty conclusions.Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same.The Courts readily admits the scientific evidences in case of theft, rape, murder and what not. But it is far beyond the reasonable understanding as why the issue of legitimacy is left open, to be decided by the legal interpretations and not by scientific techniques.Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice. The development in DNA based studies is vast, complex and expanding on a monthly basis. Inspite of repeated legal challenges, mainly in the USA, no two persons other then identical twins, have been found to have identical DNA profiles, the possible number of presumptions far exceeding the population of the world. In paternity testing, DNA now allows positive determination of parenthood, rather than the statistical likelihood or exclusion offered by blood typing in former years. Further, there is one more recent technique whose probability of giving exact result is 99.9%. It is HLA testing. Blood group antigens, serum proteins, erythrocyte enzymes and salivary proteins are of importance in ascertaining the parentage with certainly and all of them are heritable characteristics, followed accepting genetic principles. When conventional blood group systems like ABO, Rh, MN, etc. are used in disputed parentage cases; the possibility of fixing the parentage cases, the possibility of fixing of HLA testing is used along with the conventional blood group systems in disputing parentage cases, the probability of fixing the parentage is about 99.9%.
Child Born During the Continuance of Valid Marriage.There is a strong presumption that if a child was born during continuance of marriage, it is immaterial, how soon after the marriage, it was born. Moreover, the Courts had reached to the conclusion, regarding the parenthood, only because of the fact that the wife and husband were living in a same room. Here we have to broaden our mentality, while analyzing this point. Mere living together, does not conclusively decide that they had intercourse. This is an issue of love, affection and basic understanding between each other. It is highly probable, in the social system, like ours that they are staying together only because of social restrictions or because of some obligations but might not have any commitment for each other. There also arises the possibility that one of the spouse id eager for a child whereas the other does not feel any need of the child. And, if under such circumstances if a child is born, then the medical reasoning should be brought into the scenario, to determine the parenthood of that child.
More so ever, in the Criminal matters the character of a person also plays an important role and is considerable. But, this section is not interpreted in this manner. If a woman, although married, still living an adulterous life, her character would not rebut the presumption of legitimacy of children within 209 days of possible sexual connection. Here we have to consider the point of adulterous conduct of wife. So, here if the husband is disputing the parenthood, then his submission had got substance and only medical recourse can be taken, to determine the ultimate conclusiveness. But a similar contention was raised and rejected in the case where it was held that’ ‘in the view of the admitted evidence that the wife was living with the husband in the same room; it should be presumed that the pregnancy was due to the cohabitation with the husband.
Similarly, where the child was born during the pendency of maintenance petition and the husband failed to prove "non-access" it was held that the child was legitimate off spring. But here, the point to be noted is that the wife was living an adulterous life. Even if the husband is seriously ill, then also the issue of presumption, under Section 112 cannot be rebutted. So, basically to the scope of this section is very narrowed down by such approach.
280 Days.This section also talks about the time period as to when the child is supposed to be born but it an entirely medical issue. Even, medical experts cannot tell us the exact day and time, as to when a child will be born. They could only suggest a certain probable time period. If we go through the wordings of the section then a time of 280 days is being seems to be settled. But, there is no rational behind this as why not, 260 or 300 days. And, even if, the medical experts do not have any firm stand on this point, then from where did the legal jurists brought the calculated numbers of 280 days. It is to be kept mind that the birth of a child is a biological process and not a mathematically equation. If we go through the case laws, on this point, it is led enough that different Courts have different views regarding this issue. If we look into ‘Modi’s Medical Jurisprudence and Toxicology’ , under heading, ‘The Maximum Period of Pregnancy’, various periods have been mentioned, starting from 315 days to a period of about 349 days. Another jurisprudential authority by Dr. Lyon in ‘Medical Jurisprudence for India’, it is stated that;‘What is the longest period, which in natural human gestation, may be:1. That this may be 296 days.2. Most authorities agree in considering that the interval may be as long as 44 weeks or 308 days; but it might also extend to 311 days.Some of the authorities consider that the interval may extend to 46 weeks-315 to 322 days. Conclusion.So, a final solution to all this dilemma and uncertainty can be the DNA mapping and comparison of DNA of a child and the parents. In the recent case of State through C.B.I. v. Amaramani Tripathi the paternity of a six months old fetus in the womb of deceased was conclusively established with the help of DNA test. Further, the Courts, these days, is heavily relying on scientific proofs, in the cases of murder and rape. Even there are cases where the conviction is made by following the medical evidences. So, it is high-time that the scientific aptitude should be brought in the issue of determination of legitimacy of a child.
Death Sentence
Death penalty has been a mode of punishment since time immemorial. The arguments for and against has not changed much over the years. At this point of time when the issue [whether capital punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has come up before them.
Death Sentence Under Different StatutesIndian Criminal jurisprudence is based on a combination of deterrent and reformative theories of punishment. While the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be given opportunity for reformation. The courts while imposing death sentence has to record its special reasons as to why the court came to the conclusion.
Capital Punishment is laid down as a penalty in several legislative Acts, such as :Indian Penal Code, 1860 Under the IPC eleven offences are punishable by death. For ex-Murder, Abetment of suicide by a minor or insane person, Dacoity with murder etc.
Army Act, 1950, the Air Force Act, 1950 and the Navy Act 1956A death sentence may also be imposed for a number of offences committed by members of the armed forces.
The Commission of Sati (Prevention) Act, 1987Prescribes punishment by death for any person who either directly or indirectly abets the commission of sati (immolation of a widow).
The Narcotics, Drugs and Psychotopic Substances (Amendment) Act, 1988 Introduced the death penalty as a punishment for financing, or engaging in the production, manufacture or sale of narcotics or psychotopic substance of specified quantities (e.g. opium 10 kgs, cocaine 500 gms) after previous convictions.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 Introduced the death penalty for fabricating of providing false evidence that results in the conviction and execution of an innocent member of a scheduled caste or scheduled tribe.
Attempts to Abolish the Death PenaltySeveral legislative attempts to abolish the death penalty in India have failed. Before Independence a private Bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for penal code offences. The British Home Secretary at the time however rejected the motion.
The Government of independent India rejected a similar Bill introduced in the first Lok Sabha . Efforts were also made in Rajya Sabha to move resolution for abolition of death sentence in 1958 and 1962 but were withdrawn after some debate.
The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty should be retained and that the executive (President) should continue to possess powers of mercy
Procedure When Death sentence is ImposedSpecial ReasonsThe court has to record special reasons for imposing death sentence.
Confirmation by High CourtCourt of session after passing a death sentence shall submit the proceedings to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. The court passing the sentence shall then commit the convicted person to jail custody under a warrant.
Enquiry and Additional EvidenceThe High Court while dealing with confirmation may order further inquiry be made into, or additional evidence taken upon, any point bearing upon, any point bearing upon the guilty or innocence of the convicted person.
No order for confirmationNo order for confirmation shall be made until the period allowed for preferring an appeal has expired, or if any appeal is presented within such period, until such appeal is disposed of.
In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall when such court consists of two or more judges , be made, passed and signed by at least two of them.Copy of Order Sent to Court of SessionIn cases submitted by the court of session to the High Court for the confirmation of a sentence of death, the proper officer of the High Court shall ,without delay, after the order of confirmation or other order has been made by the High Court, send a copy of the order under the seal of the High Court and attested with his official signature, to the court of session.
Where a person is sentenced to death and an appeal from its judgment lies the execution of the sentence will be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.
Postponement of Death Sentence on Pregnant WomanIf a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to imprisonment for life.
Mode Of ExecutionThe issue regarding the constitutionality of hanging as a mode of execution came up before the Supreme Court in Deena v. Union of India {[1993] 4 SCC 645} , though the court asserted that it was a judicial function to probe into the reasonableness of a mode of punishment ,it refused to hold the mode of hanging as being violative of Article 21 of the constitution.
This issue was once again raised in Shashi Nayar {1992 SCC [CRI] 24] the court held that since the issue had already been considered in Deena, there was no good reason to take a different view.
Another issue which deserves attention is public hanging as a mode of execution. The issue of public hanging came to the Supreme Court through a writ petition Attorney General v. Lachma Devi {1989 SCC [CRI] 413} in this petition the order of Rajasthan High Court regarding the execution of the petitioner by public hanging under the relevant rules of Jail manual. The S.C. held that public hanging even if permitted under the rules would violate Article 21 of the Costitution.
Legality of Death SentenceIn the case of Jagmohan V/s State of U.P. {1973 SCC [CRI] 169}the question of constitutional validity of death punishment was challenged before the SC, it was argued that the right to live was basic to freedom guranteed under Article 19 of the constitution . The S.C. rejected the contention and held that death sentence cannot be regarded as unreasonable per se or not in the public interest and hence could not be said to be violative of Article 19 of the constitution.
When can Death Sentence be granted As have been stated earlier, after Cr.P.C. , 1973, death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of section 354(3) of CR.P.C., it can be said that death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singh v. State of Punjab {AIR 1980 SC 898 } and observed- " A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.."
Rarest of rare casesTo decide whether a case falls under the category of rarest of rare case or not was completely left upon the court's discretion. However the apex court laid down a few principles which were to be kept in mind while deciding the question of sentence. One of the very important principles is regarding aggravating and mitigating circumstances. It has been the view of the court that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn. Full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than the death sentence is awarded, then and then only death sentence should be imposed.
Again in Machhi singh vs. State of Punjab { [1983] 3 SCC 470 }the court laid down:- " In order to apply these guidelines inter alia the following questions maybe asked and answered: -(a). Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offenders?"
The SC has also discussed such aggravating and mitigating circumstances in various cases. These circumstances include: -Aggravating Circumstances# Murder committed in an extremely brutal , grotesque, diabolical , revolting or dastardly manner so as to arouse intense and extreme indignation of the community.# Murder- for a motive which evinces total depravity and meanness.# Murder of a Scheduled cast or Scheduled tribe- arousing social wrath ( npt for personal reasons). # Bride burning/ Dowry death.# Murderer in a dominating position , position of trust or in course of betrayal of the motherland.# Where it is enormous in proportion.# Victim- innocent child, helpless woman, old/infirm person, public figure generally loved and respected by the community.
Mitigating CircumstancesThe court in its discretion, may take into consideration, the following circumstances as mitigating, on the basis of which the lesser punishment can be imposed:1. That the offence was committed under the influence of extreme mental or emotional distribution;2. If the accused is young or old, he shall not be sentenced to death;3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;4. The probability that the accused can be reformed and rehabilitated ;The state shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above;5. That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;6. That the accused acted under the duress of domination of another person;7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
Conviction of a minorThe ordinary sentencing applicable to adults will no longer be applicable in the case of juveniles. The Juvenile Justice Act defines the term juvenile as a boy who has not attained the age of 16 years, or a girl who has not attained the age of 18 years. As per sec. 22 of the said Act, no delinquent juvenile shall be sentenced to death ?.
Conviction Of A Pregnant womanSection-416 of Cr.pc. provides if a woman sentenced to death is found to be pregnant, the High court shall order the execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to imprisonment for life.
Lesser Sentence To Co- AccusedIn cases where there are more than one accused, and murder has been committed by several persons, under section 34 of IPC, the act done by one will be considered to be acts done by all. So if a lesser sentence of life imprisonment is awarded to one accused, then the co-accused should also generally be given the same sentence, unless it can be established that the role of any one of them in the commission of the crime is more that of others.
Delay in execution of the death sentenceDelay in execution of death sentence is a factor which may be taken into consideration for commuting the sentence of death to life imprisonment.
If upon taking an overall view of all the circumstances and taking in to account the answers to the question posed by way of the test of rarest of rare cases, the circumstances of the case are such that death penalty is warranted, the court would proceed to do so.
Judicial DiscretionThe ultimate discretion to decide whether death sentence is to be imposed or not , have been vested in the court. There is a debate going on about the extent of this judicial discretion.
A brief analysis of the cases decided by the SC. Regarding the question of death sentence over last 25 years, will reveal how differing/dithering the judgments have been.
In the case of Mohd. Chaman {2000 SOL CASE NO 705 } , on the question of extent of judicial discretion, the court observed :-" Such standardization is well nigh impossible . Firstly degree of culpability cannot be measured in any case. Secondly criminal cases canno tbe categorized there being infinite , unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing procedure will cease to be judicial . And fourthly , such standardization or sentencing discretion is policy matter belonging to the legislature beyond the courts functions"
International ScenarioAs of June 2004, a total of 118 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 80 countries and territories have abolished the death penalty for all crimes, fifteen countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 23 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions.
ConclusionIn India the present position regarding death sentence is quite a balanced one. But the wide judicial discretion given to the court has resulted into enormously varying judgment, which does not potray a good picture of the justice delivery system. What is needed to be done is that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly complied with, so that the person convicted for offence of similar nature are awarded punishment of identical degree.
Death Sentence Under Different StatutesIndian Criminal jurisprudence is based on a combination of deterrent and reformative theories of punishment. While the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be given opportunity for reformation. The courts while imposing death sentence has to record its special reasons as to why the court came to the conclusion.
Capital Punishment is laid down as a penalty in several legislative Acts, such as :Indian Penal Code, 1860 Under the IPC eleven offences are punishable by death. For ex-Murder, Abetment of suicide by a minor or insane person, Dacoity with murder etc.
Army Act, 1950, the Air Force Act, 1950 and the Navy Act 1956A death sentence may also be imposed for a number of offences committed by members of the armed forces.
The Commission of Sati (Prevention) Act, 1987Prescribes punishment by death for any person who either directly or indirectly abets the commission of sati (immolation of a widow).
The Narcotics, Drugs and Psychotopic Substances (Amendment) Act, 1988 Introduced the death penalty as a punishment for financing, or engaging in the production, manufacture or sale of narcotics or psychotopic substance of specified quantities (e.g. opium 10 kgs, cocaine 500 gms) after previous convictions.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 Introduced the death penalty for fabricating of providing false evidence that results in the conviction and execution of an innocent member of a scheduled caste or scheduled tribe.
Attempts to Abolish the Death PenaltySeveral legislative attempts to abolish the death penalty in India have failed. Before Independence a private Bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for penal code offences. The British Home Secretary at the time however rejected the motion.
The Government of independent India rejected a similar Bill introduced in the first Lok Sabha . Efforts were also made in Rajya Sabha to move resolution for abolition of death sentence in 1958 and 1962 but were withdrawn after some debate.
The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty should be retained and that the executive (President) should continue to possess powers of mercy
Procedure When Death sentence is ImposedSpecial ReasonsThe court has to record special reasons for imposing death sentence.
Confirmation by High CourtCourt of session after passing a death sentence shall submit the proceedings to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. The court passing the sentence shall then commit the convicted person to jail custody under a warrant.
Enquiry and Additional EvidenceThe High Court while dealing with confirmation may order further inquiry be made into, or additional evidence taken upon, any point bearing upon, any point bearing upon the guilty or innocence of the convicted person.
No order for confirmationNo order for confirmation shall be made until the period allowed for preferring an appeal has expired, or if any appeal is presented within such period, until such appeal is disposed of.
In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall when such court consists of two or more judges , be made, passed and signed by at least two of them.Copy of Order Sent to Court of SessionIn cases submitted by the court of session to the High Court for the confirmation of a sentence of death, the proper officer of the High Court shall ,without delay, after the order of confirmation or other order has been made by the High Court, send a copy of the order under the seal of the High Court and attested with his official signature, to the court of session.
Where a person is sentenced to death and an appeal from its judgment lies the execution of the sentence will be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.
Postponement of Death Sentence on Pregnant WomanIf a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to imprisonment for life.
Mode Of ExecutionThe issue regarding the constitutionality of hanging as a mode of execution came up before the Supreme Court in Deena v. Union of India {[1993] 4 SCC 645} , though the court asserted that it was a judicial function to probe into the reasonableness of a mode of punishment ,it refused to hold the mode of hanging as being violative of Article 21 of the constitution.
This issue was once again raised in Shashi Nayar {1992 SCC [CRI] 24] the court held that since the issue had already been considered in Deena, there was no good reason to take a different view.
Another issue which deserves attention is public hanging as a mode of execution. The issue of public hanging came to the Supreme Court through a writ petition Attorney General v. Lachma Devi {1989 SCC [CRI] 413} in this petition the order of Rajasthan High Court regarding the execution of the petitioner by public hanging under the relevant rules of Jail manual. The S.C. held that public hanging even if permitted under the rules would violate Article 21 of the Costitution.
Legality of Death SentenceIn the case of Jagmohan V/s State of U.P. {1973 SCC [CRI] 169}the question of constitutional validity of death punishment was challenged before the SC, it was argued that the right to live was basic to freedom guranteed under Article 19 of the constitution . The S.C. rejected the contention and held that death sentence cannot be regarded as unreasonable per se or not in the public interest and hence could not be said to be violative of Article 19 of the constitution.
When can Death Sentence be granted As have been stated earlier, after Cr.P.C. , 1973, death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of section 354(3) of CR.P.C., it can be said that death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singh v. State of Punjab {AIR 1980 SC 898 } and observed- " A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.."
Rarest of rare casesTo decide whether a case falls under the category of rarest of rare case or not was completely left upon the court's discretion. However the apex court laid down a few principles which were to be kept in mind while deciding the question of sentence. One of the very important principles is regarding aggravating and mitigating circumstances. It has been the view of the court that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn. Full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than the death sentence is awarded, then and then only death sentence should be imposed.
Again in Machhi singh vs. State of Punjab { [1983] 3 SCC 470 }the court laid down:- " In order to apply these guidelines inter alia the following questions maybe asked and answered: -(a). Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offenders?"
The SC has also discussed such aggravating and mitigating circumstances in various cases. These circumstances include: -Aggravating Circumstances# Murder committed in an extremely brutal , grotesque, diabolical , revolting or dastardly manner so as to arouse intense and extreme indignation of the community.# Murder- for a motive which evinces total depravity and meanness.# Murder of a Scheduled cast or Scheduled tribe- arousing social wrath ( npt for personal reasons). # Bride burning/ Dowry death.# Murderer in a dominating position , position of trust or in course of betrayal of the motherland.# Where it is enormous in proportion.# Victim- innocent child, helpless woman, old/infirm person, public figure generally loved and respected by the community.
Mitigating CircumstancesThe court in its discretion, may take into consideration, the following circumstances as mitigating, on the basis of which the lesser punishment can be imposed:1. That the offence was committed under the influence of extreme mental or emotional distribution;2. If the accused is young or old, he shall not be sentenced to death;3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;4. The probability that the accused can be reformed and rehabilitated ;The state shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above;5. That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;6. That the accused acted under the duress of domination of another person;7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
Conviction of a minorThe ordinary sentencing applicable to adults will no longer be applicable in the case of juveniles. The Juvenile Justice Act defines the term juvenile as a boy who has not attained the age of 16 years, or a girl who has not attained the age of 18 years. As per sec. 22 of the said Act, no delinquent juvenile shall be sentenced to death ?.
Conviction Of A Pregnant womanSection-416 of Cr.pc. provides if a woman sentenced to death is found to be pregnant, the High court shall order the execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to imprisonment for life.
Lesser Sentence To Co- AccusedIn cases where there are more than one accused, and murder has been committed by several persons, under section 34 of IPC, the act done by one will be considered to be acts done by all. So if a lesser sentence of life imprisonment is awarded to one accused, then the co-accused should also generally be given the same sentence, unless it can be established that the role of any one of them in the commission of the crime is more that of others.
Delay in execution of the death sentenceDelay in execution of death sentence is a factor which may be taken into consideration for commuting the sentence of death to life imprisonment.
If upon taking an overall view of all the circumstances and taking in to account the answers to the question posed by way of the test of rarest of rare cases, the circumstances of the case are such that death penalty is warranted, the court would proceed to do so.
Judicial DiscretionThe ultimate discretion to decide whether death sentence is to be imposed or not , have been vested in the court. There is a debate going on about the extent of this judicial discretion.
A brief analysis of the cases decided by the SC. Regarding the question of death sentence over last 25 years, will reveal how differing/dithering the judgments have been.
In the case of Mohd. Chaman {2000 SOL CASE NO 705 } , on the question of extent of judicial discretion, the court observed :-" Such standardization is well nigh impossible . Firstly degree of culpability cannot be measured in any case. Secondly criminal cases canno tbe categorized there being infinite , unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing procedure will cease to be judicial . And fourthly , such standardization or sentencing discretion is policy matter belonging to the legislature beyond the courts functions"
International ScenarioAs of June 2004, a total of 118 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 80 countries and territories have abolished the death penalty for all crimes, fifteen countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 23 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions.
ConclusionIn India the present position regarding death sentence is quite a balanced one. But the wide judicial discretion given to the court has resulted into enormously varying judgment, which does not potray a good picture of the justice delivery system. What is needed to be done is that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly complied with, so that the person convicted for offence of similar nature are awarded punishment of identical degree.
Application of the doctrine of Ejusdem generis
Ejusdem generis is a rule of construction. While interpretation or construction of a statute the first thing which is done by the court is to assign literal meaning to the statute in question, but in case, there exist an ambiguity or vagueness, then the courts go a step further in its interpretation, and try knowing the intent of the legislature in constructing of such a statute; which can be inferred and determined from the application of statutory rules of interpretation out of which one of them is ejusdem generis. Ejusdem generis means "of the same kind" and is more restricted than the word analogous. It is for application in the construction of statutes.
In the instant article the doctrine has been comprehended by applying it to Section 364-A of the Indian Penal Code.
The true scope of the rule of ejusdem generis is that words of a general nature following specific and particular words should be construed as limited to things, which are of the same nature as those specified. But the rule is one, which has to be applied with caution and not pushed too far (held in UPSE Board v. Hari Shankar Jain AIR 1979 SC 65). It is essential for the application of the rule that enumerated things before the general words must constitute a category or a genus or a family, which admits number of species and members. In S.S Magnhild (Owners) v. Macintyre BROS. & Co. [1920] 3 KB 321 the King's Bench held that: unless a category is found, there is no room for application of the ejusdem generis principle.
In Amar Chandra v. Excise Collector, Tipura AIR [1972] SC 1836 Justice Dua was of the opinion that the rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when:(i) where the statute contains an enumeration of specific words;(ii) the subjects of enumeration constitute a class or category;(iii) that class or category is not exhausted by the enumeration;(iv) the general term follows the enumeration, and;(v) there is no indication of a different legislative intent.
Now approaching to Section 364-A of IPC which follows as: Kidnapping for ransom, etc. - Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign state or international inter-governmental organization or any other person to do or abstain from doing any act or to pay ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
This section was introduced in 1993 and was amended in 1995 with a view to provide punishment for kidnapping, abduction or detention for ransom. This section provides for a very serious punishment against the offender. Now the question arises that what could be the reason behind providing of such a stringent penalty against the offender, where as in cases where kidnapping and abduction is done either with an intention to murder or disposing of as to be put in the danger of being murdered then the punishment granted is only life imprisonment or rigorous imprisonment which may extend to ten years and an liability to pay fine (Referring to Section 364 of IPC).
Prima facie the imposition of punishment under this section (Sec 364-A IPC) as compared to the other sections related to kidnapping may appear to be highly unreasonable and unjust.
But determining the legislative intent and on application of the doctrine of ejusdem generis it could be inferred that the application of this section is to be made in highly particular and peculiar situations keeping in view the feat of the terrorists and other anti-social groups who kidnap or abduct in order to nag the government
The rule of "ejusdem generis" has its head on application in section 364-A of IPC, because the words "any other person" as mentioned in the section should be interpreted only in light of its preceding words i.e. government, foreign government...so on. This necessarily means that any other person cannot embrace in its ambit any private body or an individual. It has been held that where words of general nature follow specific and particular words they should be construed as limited to things, which are of same nature as those specified. When particular words pertaining to a class or category or genus are followed by general words, the general words are to be construed as limited to things of the same kind as specified (State of Karnataka v. Kempaiah AIR 1998 Bom 3047). The Privy counsel construed the words "any other person" as follows:
"When a section of an Act of Parliament after enumerating several office-holders proceeds to add the words 'any other person or persons whatever,' the doctrine of 'ejusdem generis' applies. Any 'other person' means any one who holds an office in the Government of a similar kind to those enumerated. In the matter of Sir Stuart Sammuel."
The Bombay High Court in Sundrabai Dalichand v. Moneshwar Mahadeo Gokhle, AIR 1959 Bom 178 has also interpreted 'any other person' specific to the words proceedings in particular statute (in that case CPC) as follows:"The expression "any other person" has reference to those other persons, who have been mentioned in the preceding rules of Order 5, who according to those rules, are entitled, to receive service on behalf of the parties to litigation."
The Punjab & Haryana High Court has held in Balwant Singh & Anr. v. State of Haryana 2002(2) RCR (Cri) 369 as under:"From the language of s 364-A IPC it becomes crystal clear that this section is applicable only when the kidnapping for ransom etc, is done in order to compel the government or any foreign state or international inter-governmental organization to do or abstain from doing any act. When an individual person has been compelled to pay the ransom amount, the offence under s 364-A IPC is not made out at all."
Hence the rule is founded upon the idea that if the Legislature intended the general words to be used in an unrestricted sense, the particular classes would not have been mentioned (Referring to Crawford Statutory Construction, Article 191 at p. 327).
In the instant article the doctrine has been comprehended by applying it to Section 364-A of the Indian Penal Code.
The true scope of the rule of ejusdem generis is that words of a general nature following specific and particular words should be construed as limited to things, which are of the same nature as those specified. But the rule is one, which has to be applied with caution and not pushed too far (held in UPSE Board v. Hari Shankar Jain AIR 1979 SC 65). It is essential for the application of the rule that enumerated things before the general words must constitute a category or a genus or a family, which admits number of species and members. In S.S Magnhild (Owners) v. Macintyre BROS. & Co. [1920] 3 KB 321 the King's Bench held that: unless a category is found, there is no room for application of the ejusdem generis principle.
In Amar Chandra v. Excise Collector, Tipura AIR [1972] SC 1836 Justice Dua was of the opinion that the rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when:(i) where the statute contains an enumeration of specific words;(ii) the subjects of enumeration constitute a class or category;(iii) that class or category is not exhausted by the enumeration;(iv) the general term follows the enumeration, and;(v) there is no indication of a different legislative intent.
Now approaching to Section 364-A of IPC which follows as: Kidnapping for ransom, etc. - Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign state or international inter-governmental organization or any other person to do or abstain from doing any act or to pay ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
This section was introduced in 1993 and was amended in 1995 with a view to provide punishment for kidnapping, abduction or detention for ransom. This section provides for a very serious punishment against the offender. Now the question arises that what could be the reason behind providing of such a stringent penalty against the offender, where as in cases where kidnapping and abduction is done either with an intention to murder or disposing of as to be put in the danger of being murdered then the punishment granted is only life imprisonment or rigorous imprisonment which may extend to ten years and an liability to pay fine (Referring to Section 364 of IPC).
Prima facie the imposition of punishment under this section (Sec 364-A IPC) as compared to the other sections related to kidnapping may appear to be highly unreasonable and unjust.
But determining the legislative intent and on application of the doctrine of ejusdem generis it could be inferred that the application of this section is to be made in highly particular and peculiar situations keeping in view the feat of the terrorists and other anti-social groups who kidnap or abduct in order to nag the government
The rule of "ejusdem generis" has its head on application in section 364-A of IPC, because the words "any other person" as mentioned in the section should be interpreted only in light of its preceding words i.e. government, foreign government...so on. This necessarily means that any other person cannot embrace in its ambit any private body or an individual. It has been held that where words of general nature follow specific and particular words they should be construed as limited to things, which are of same nature as those specified. When particular words pertaining to a class or category or genus are followed by general words, the general words are to be construed as limited to things of the same kind as specified (State of Karnataka v. Kempaiah AIR 1998 Bom 3047). The Privy counsel construed the words "any other person" as follows:
"When a section of an Act of Parliament after enumerating several office-holders proceeds to add the words 'any other person or persons whatever,' the doctrine of 'ejusdem generis' applies. Any 'other person' means any one who holds an office in the Government of a similar kind to those enumerated. In the matter of Sir Stuart Sammuel."
The Bombay High Court in Sundrabai Dalichand v. Moneshwar Mahadeo Gokhle, AIR 1959 Bom 178 has also interpreted 'any other person' specific to the words proceedings in particular statute (in that case CPC) as follows:"The expression "any other person" has reference to those other persons, who have been mentioned in the preceding rules of Order 5, who according to those rules, are entitled, to receive service on behalf of the parties to litigation."
The Punjab & Haryana High Court has held in Balwant Singh & Anr. v. State of Haryana 2002(2) RCR (Cri) 369 as under:"From the language of s 364-A IPC it becomes crystal clear that this section is applicable only when the kidnapping for ransom etc, is done in order to compel the government or any foreign state or international inter-governmental organization to do or abstain from doing any act. When an individual person has been compelled to pay the ransom amount, the offence under s 364-A IPC is not made out at all."
Hence the rule is founded upon the idea that if the Legislature intended the general words to be used in an unrestricted sense, the particular classes would not have been mentioned (Referring to Crawford Statutory Construction, Article 191 at p. 327).
Tuesday, August 19, 2008
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