Accidents and criminal prosecutions

How far defense of Accident goes good in criminal trial?

Would someone be liable for an accident that kill fellow human being? For instance, killing a man thinking it is a duck. Sounds odd! Life is imperfect. You may face odds many times. Uncertain and unexpected happens. So think would you be liable in that same case as mentioned above? You act on good faith to put off fire. Unfortunately nearby building pulled down. Could someone charge for damaging public property? If it does so, social value would reduce. The lack of pity and probity will cause crime.

In many instance court has decided to discharge someone who acts in good faith.

Gunsmith-hammer case: A crowded bus was en route to its destination. A pick pocketer was among the crowd searching pockets of each passengers. The pick pocketer lets his hand into to the pockets of a passenger and found solid bulk object to his dismay. The pick pocket accidentally pulls off something and then a loud gun shot is heard. The passenger dies. Later, the pick pocket realized that he has pulled the gun trigger thinking it to be a purse. Police charged him with murder. But the court had different interpretation for the act. The intention was to steal from the passenger and not to kill him. The pick pocketer never had any intention to kill the victim. Expecting some money or purse from the victim he accidentally pulled off the trigger of the gun concealed in the victims clothing. So the court dropped the murder charges. Yet, the pick pocketer was tried for the charge of attempt to theft which is a punishable offense under penal code.

For instance, let take the following scenario. A captain of the ship who usually follow a route as per his route map routinely. But one day the ship got stuck by heap of sand which resulted in the death of passengers of the ship. Could the captain be tried for negligence or man slaughter? The court would uphold the defense of accident as the incident was not pre-planned nor willful.

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Advocate, Barrister, Solicitors: Difference between them

Justice is an integral part of any Democracy. Such Justice been done in the Halls of Courts which are termed as temples of modern Democracy. To uphold justice, these modern temples rely on advocacy of a person who is well good at law of the land. As law is not an universal rule, it vary from place to place. Where one part of the state may rule an act wrong while other may uphold it right. Especially, when it comes to Federation of small States. Such difference is crystal clear. Example, United states of America, Republic of India were the each individual states may follow own law while federal law is applicable to whole of the state.

To uphold justice, a person who knows law must do advocacy. Such person is called in many different names depending of the place in which such person conduct his profession on law. While it is called as 'an Advocate' when it comes to South Asia, it is called as 'Attorney' when it is done in United State of America. But such wordly distinction is not able to demarcate clear difference between all those who practice law. All those who practice law is good to do advocacy in their respective country.

Lawyer:

It is a generic term used to denote whoever does legal service. To our interest, it would include wide range of person who work under the judiciary. All person who directly or indirectly help in upholding law of the land is a lawyer. To be simple, it would be difficult to draw a clear line. Yet an example might make it clear.

In United Kingdom of Great Britain and Northern Ireland, Lawyer would include clerks, judges and any other people who work under judiciary department. The term is so generic that it includes anybody irrespective of type of work done.

Lawyer is any person who is under Legal Service.

Solicitors:

In South Asia, person who is qualified to be an advocate could take up matter before any court of law. But in United Kingdom, the advocate profession has two branches. 

#1. Solicitors
#2. Barristers

Solicitors and Barristers, both are qualified to practice law. But Barristers have additional qualifications which is stated at the later stage of this post. Solicitors is the entry level. Whoever obtains qualification to practice law can be a solicitors. Most part of the solicitors work is to advise clients and represent them in lower criminal and civil courts.

Dress Code of Solicitors is the traditional 'Robe'.

Barristers:

Here comes the interesting part, Barristers. So who are the Barristers? How are they different from the Solicitors? What make Barristers stand separated from Solicitors? The Answers to those questions are simple. Though the wording of these classification is complex, it is simple to understand.

Foregoing section would have made clear about the solicitors. Barristers are made of 'Legal Qualification + Additional Qualification'. These are the professionals who are qualified to appear before Court of Appeal, High Court and House of Lords. The Hold monopoly to appear on behalf of their clients before the above mentioned courts. Solicitors are disabled from doing so. 

To become a Barrister, one has to come across 3 stages.

#1. One must complete LL.B program or under-graduate in other subject followed by conversion course.

#2. Vocation stage: Bar Professional Training course (BPTC) must be done. It is of choice. Either one may pick 1 year full time course or 2 year part time course.

#3. Pupilage: Completing the above mentioned steps, one must undergo 1 year pupilage in barrister chamber or any organisation approved by Bar Standard Board as PTO (Pupilage Training Organisation)

Barrister dress code is a Robe and Horsehair Wig.

Relation between Solicitor and Barrister:

It may appear that solicitor and barristers are different path in legal profession. But to put it right, one who is solicitor could take up Barrister by fulfilling the requirements of Bar Standard Board to become a Barrister. Solicitors and Barristers are interlinked with each other. They are inseparable when it comes to solving clients problem. 

Barristers' clients are solicitors who handle case on behalf of the clients in the lower courts. In other words, solicitors take of client needs in lower criminal and civil courts. But when it comes to appeals, Solicitors, on behalf of their clients, instruct Barristers to move appeal on the verdict of lower courts. So solicitors act as link between their clients and Barristers. 

Solicitors need to possess client management skills. Most part of time is spent with clients. So Solicitors must be able to understand the client need and must be confidence about all the facts and circumstances of the case. So then the Solicitors could provide confident instructions to the barristers. This make the part of the solicitors important. Any misunderstanding or misinformation will prejudice the client. 

Attorney:

It is equivalent of the Advocate in South-Asia. Attorney is a legal practitioner but in United States of America (USA). An Attorney is disabled to represent behalf of his client when it comes to handling administrative matters. It was to preserve the informal nature of such proceedings. You could see 'paralegal' in USA. 

1. 'A Paralegal is a person qualified through education and training to perform substantive legal work that requires knowledge of the law and procedures and who is not a qualified solicitor or barrister.' - Wikipedia.

Hope it would make clear about the distinction between Attorney and Paralegal. Paralegal is a person who act under an Attorney. Where Attorney is responsible for the acts of paralegal as they are deemed to be under the control of that Attorney or law firm.

Advocate:

Most popular term in South-Asia, India, Pakistan, Bangladesh. Advocate is person who is entitled to represent his client before any court of law. There is no hard line which distinguish a senior advocate and an advocate. Any body could make presentation before the court of law.Yet, you will find some differences when it comes to Supreme Court or High Courts in each state. Still Advocate is a common term used to denote person who is qualified to practice law.

To the best of my knowledge, these are the visible differences between legal practitioners. Any views or further clarifications are welcomed.

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Madurai Bench of Madras High Court: Class 12 student to get 2 grace marks

The Madurai Bench of the madras High Court on Monday directed the director of government examination (DGE) to provide two marks to students who attempted questions 18 and 20 in the economics examination of Class 12 government higher secondary examination, held on March 27.

Tamil Nadu Post Graduate Teachers Association Madurai District President M. Chandran filed a petition stating allegations against the authority in setting the question paper. He said the two questions 18 and 20 for Tamil medium students, were unanswerable. When the case came up for hearing before the division bench of justice S.Manikumar and G.Chokalingam, the government side admitted the mistake and said it was ready to provide two marks to the concerned questions. It also produced a fax report from the education authority expressing consent.

Accepting it, the bench directed the director of government examination to provide two grace mark to the Tamil Medium Economics students



Source: Times of India

Tamil Nadu Play School Regulation

High Court Direction To Regulate Play Schools

While taking up a Public Interest Litigation (PIL) filed by Mr. K.Balasubramanian, a practicing advocate, sought direction to regulate unrecognized play schools operating in Tamil Nadu. The issue involves some 760 unrecognized play schools which are functioning without any sanction. The petitioner contended that these schools operate without any sanctions and admit hundreds of children and collect exorbitant fees from parents. The petitioner also highlighted the lack of infrastructure in unrecognized schools. Further, the petition brought to light the about complaints that are pending before education department officials unattended. 

The petitioner prayed for closure of all 760 unrecognized play schools running without any affiliation as prescribed by Tamil Nadu Recognized Private Schools Regulations 1973 and transfer those students from unrecognized play schools to recognized play schools.

Direction to Education Department

On August 14, 2014, when the petition came up before the Madras High Court, it was pleased to direct the Tamil Nadu Education Department to upload all details of the schools and related circulars in its website to avoid confusion. But Education Department failed to so. When the matter came up before the bench, State Government sought adjournments stating that norms under drafting and soon will be published.

When the issue came up April 6, 2015, another adjournment was sought be the Government, the bench comprising Justice Sanjay Kishan Kaul and Justice T S Sivagnanam observed the State appears to be not serious in finalizing the norms despite repeated directions.

Further, the bench ordered the Home Secretary and School Education Department Secretary  should be personally present on June 16, if they fail to finalize the norms by the next date of hearing.

Lack of Infrastructure:

With present situation, any body who own or rent 650 sq. ft of floor space, could start such play schools. As play school academics are not serious, parents are not mindful to verify such play school recognition. A school must contain good infrastructure such as class rooms, play ground, first aid, drinking water,etc. But many play schools which are started with business motive charge exorbitant fee from parents but fail to provide good service in return. 

Most play schools operating would lack good play ground size. All children are made to occupy the small place which is used to run the play school. These play schools are popular in residential areas. The close proximity to house encourage parents to get admission to children.

With the growth of IT companies near cities, unrecognized play school numbers are up in the city sub-urban areas. As parents are working professionals, who do not find time to take of children during day time, find play schools which are in vicinity as a good place to leave behind their children. 

But when admitting a child, parents must take notice on the recognition that must be sought from the concerned State Government, infrastructure, safety and security of their children which is often neglected. The convenience outweigh the requirements. A compromise on these standards would be fatal. As a parent, it is wise to make sure about the play school before admitting the child.

The Direction of Madras High Court is step closer to regulate unrecognized play schools in the State of Tamil Nadu.

Aadhaar Card Compulsory?

The very question about this post is about "Aadhaar Card" issued by Government of India. The UIDAI came to light when Government mulled for reducing the burden of subsidy. The burden of subsidy was high on Government exchequer so it was piloted to reduce the beneficiaries who receive subsidy. The first target was to reduce the subsidy bill on the LPG customers. As almost all household have atleast one LPG connection, which increased the subsidy bill, it was made the primary target to reduce subsidy. The story started with UIDAI setup under the UPA government under the leadership of former Infosys gem Mr. Nandan Nilakeni.

LPG subsidy:

The burden of subsidy increased year by year as the LPG connection started penetrating every household in India. The subsidy was general without any discrimination between rich and poor. As it was thought that rich do not need a subsidy to subsist in India, the government made scheme to filter the poorer section of Indian population. The aim was to make reach the subsidy to the target poorer section and to reduce budget deficit which was increasing exponentially. Though it appears to be good project to reduce burden on government exchequer, Aadhaar card came with a tag that it is not mandatory. But one who wish to claim subsidy must have Aadhaar number linked to a Bank account.

Bank Accounts with Aadhaar numbers:

The Aadhaar project scheme was to deposit subsidy directly with beneficiaries bank account. So the Government mended Banks under RBI to facilitate opening of no-frill account linked with Aadhaar number of the customers. The reason cited was Financial inclusion in Economical development. With aid of Government, almost all household own at least one bank account now. The object of the Aadhaar induced bank account opening satisfied the government. Now, any person UIDAI number could list out bank account number held by that person.

Early problems of Direct Benefit Transfer (DBT):

The pilot project to deposit subsidy directly into beneficiaries account saw many pitfalls. The subsidy bill previously was claimed from the government by the huge corporations. Now, the end-user i.e, LPG consumer has to make claim to the government instead of oil corporations. The LPG consumers were made to run pillar to post to claim the subsidy amount due to them. Though, it saw many pitfalls, the pilot project was considered as success. The government started implementing the Aadhaar linked subsidy all over India.

Such announcement was made at the time when most LPG consumers did not have the Aadhaar card. Though government rushed up the issue of Unique number to all citizens, the delay in issuance of Unique ID left many consumers perplexed. To add fuel to the commotion, the form format were altered many times between the announcement and last date of rolling out the scheme.

Linking Aadhaar with Election Voter ID?

With so many problem attached with the well thought and planned LPG subsidy, now government has started collecting Aadhaar ID from each household in electrol constituency. The idea was to link Unique ID with voter ID. 

At first, the Aadhaar card was made not mandatory and it is optional. Thus, it was the choice of the citizen either to get Unique ID or not. But now, government move to link voter ID with Aadhaar card number hints that the future move would make it compulsory and must to have ID proof. 

The people who come to collect Unique ID from each household insist to get Aadhaar ID as soon as possible. Person who do not have an Aadhaar is looked up on like criminal by the officer who collect details at the instance of the government. The fact that we do not want Aadhaar is not pleasing those field officers.

Making Aadhaar Mandatory:

Various question would arise at this juncture:

1. Could Aadhaar card be made mandatory?

2. What is at stake if made mandatory?

3. How personal information of card holder be handled?

and many more endless queries comes out brain such as privacy rights, freedom of expresssion, etc.

If our memory could help us, the Aadhaar was stated as optional. It is deceiving that some thing which was made not mandatory at beginning was insisted upon the people of India.

Is the Aadhaar ID licence to benefits or act as tool to monitor each and every citizens of this Republic? Why do the government try to invade into personal details of its citizens? Time alone could answer those questions.

Fear of No Regulation of Internet

The Supreme Court of India has struck down the Section 66A of Information Technology act. Online activist who campaigned for removal of section 66A welcomed the move. Yet all laws don't exist without conflict of opinion. Few sections of people including activist, political parties, lawyers has question what would the result of the verdict.

Supreme Court scraps section 66A of Information Technology Act, 2000:

Today, in a landmark verdict, the Supreme Court upheld the section 66A as unconstitutional as the word "grossly offensive", etc are vague. The verdict paved way for the protection of online citizens who express opinion through Social networking sites such as Facebook, Twitter, Tumblr, etc. The arrest of two college girls in Mumbai for posting comments against the manner of funeral provided for Shiva Sena Chief Bal Thackeray has created huge uproar against the atrocious section of the Act. While Supreme Court granted interim relief to get prior permission of Commissioner of Police or police officer at the rank of DCP to arrest person who post objectionable contents online by 2013.

Concerns following the Verdict:

Few people have raised concerns that scrapping of Section 66A would promote anti-social elements to propagate any ideology against anybody. Thus net neutrality would provide free for all situation. It might seen as a justifiable concern. When the world mulls for regulation of Internet through centralized body, such verdicts would puzzle people who advocate for Internet regulation. But such concerns are unnecessary. 

Section 66A is Not the Only Solution

A few months backs we would have heard that Department of Telecommunication (DOT) which ordered all Internet Service Providers (ISP) to block 34 websites. The reason cited was these websites were used to propagate terrorist activities in India. The whole scenario didn't warrant Section 66A of the Information Technology Act.

This would serve as a good example that Government of India could control Internet Content without the atrocious Section 66A. Moreover, the recent arrest of School boy for posting comments on Social Networking Site is a good example that it would do more harm than good. 

Without Section 66A Government is all capable of controlling the Internet content. Blocking of 34 websites is good precedent to explain how DOT could control offensive web contents. For people, who worry about scrapping of Section 66A, it will not do any harm to social peace and security.

Supreme Court: Sec 66A Stuck Down

Section 66 A of IT Act unconstitutional, Supreme Court rules

Section 66A: Punishment for sending offensive messages through communication service, etc- any Person who sends, by means of a computer source or a communication device-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will, persistently by making use of such computer resource or a communication device;

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to misled the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Police to arrest anybody who post objectionable contents online

The Section 66A of Information Technology Act, 2000, gives the police powers to arrest those who post objectionable content online and provides for a three-year jail term.
The Supreme Court on Tuesday declared Section 66 A of the Information and Technology Act as unconstitutional.

The public’s right to know is directly affected by Section 66 A of the IT Act, the Court said.

It also termed the provision as vague and says “what may be offensive to a person, may not be offensive to others.”

The Section gives the police powers to arrest those who post objectionable content online and provides for a three-year jail term.

Freedom of Speech and Expression upheld

A bench of justices J. Chelameswar and R.F. Nariman had on 26 February reserved its judgement on one of the most controversial issues regarding the freedom of expression that the court has had to deal with in recent times. The verdict was reserved after the government concluded its arguments contending that section 66A of the Information Technology Act cannot be declared unconstitutional merely because of the possibility of its “abuse”.

The government said it did not want to curtail the freedom of speech and expression but contended that the cyber space could not be allowed to remain unregulated. During hearing however, the court had found several issues with the wording of the law. In particular, it said that terms like ‘grossly offensive’ and ‘of menacing character’, used to classify content as illegal, were vague expressions and these words were likely to be misunderstood and abused.

Interim Relief in 2013

The first PIL on the issue was filed in 2012 by a law student Shreya Singhal, who sought amendment in Section 66A of the Act, after two girls — Shaheen Dhada and Rinu Shrinivasan — were arrested in Palghar in Thane district as one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death and the other ‘liked’ it. The apex court had on 16 May 2013, come out with an advisory that a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers like the IG or the DCP.

Right to Equality and Equal Protection of Law

Right to Equality

Indian Constitution provide Equality for all. But reality is it absolute? The point is no right is absolute in India. A reasonable restrictions are towed along with the rights granted to Indian citizens. Yet what happen when such reasonable restrictions go beyond normal human reasoning? This what happens in Chennai Domestic Arrival. The VIP culture dominate common man needs.

Renovated Chennai International Airport

Recently, The Chennai International Airport was renovated. The infrastructure facilities went beyond the expectations. Yet people enjoy the benefits of such infrastructure projects. What is expected & what is the reality? The question is obvious when we enter the practical life of Chennaite. 

Discrimination in Chennai International Airport

If you are an ordinary passenger then you will not be able to board on your taxi or cars on the lane in front of arrival section. The reason is the lane is earmarked for the important key functionaries of the Government. Yet we understand the importance of Government functionaries. But the those related to such functionaries and film stars get the special treatment. Even on occasions, when no VIP arrives, the lane remains unused.

To Find Profit with Parking

The cabs and car owners cry foul that the aim of the authorities to collect irrational parking charges from the terminal users. Even to pick up someone we have to pay up the parking charge and wait near the arrival than to just drive and pick them up from the arrival. It is ordeal for elderly and senior citizens who deserves most care from the authorities. Those people have to either take walk to the car or wait until they can claim special benefit at the mercy of authorities.

Blame Game

A Policeman said the lane had to be restricted for use as it was being taken over by drivers who arrived early and slept in their cars. AirPassengers Association of India President Mr. Sudhakar Reddy said it was an excuse to benefit from parking lot revenue.

All are Not Equal

The tussle with which domestic arrival passengers are treated convey a clear message that all passengers coming out of that gate at Chennai airport are not 'equal'.

Madras High Court: Conviction without Trial not valid

Madras High Court quashes murder case without trial

Madras High Court has upheld that a conviction without trial is invalid. Mere confession before the police officer is not sufficient to convict the accused.

Confessions Cannot Be the Basis for Conviction, Court Needs Recovery' - Justice R.S.Ramanathan

A case of wife-killing, slapped on a man, his lover and five of his family members, was quashed by the Madras High Court which said that they need not be made to go through the rigorous trial, as the entire case had been built on mere confessions made by key suspects to police.

"Chargesheet cannot be filed against the accused solely on the basis of confession, which does not lead to recovery. In this case, except the confession, there is no recovery, Therefore, confession cannot be the basis for conviction, even accepting it as true," said Justice R S Ramanathan, quashing the murder case against Natarajan and others, all from Namakkal district.

According to police, Natarajan had developed intimacy with another woman, and murdered his wife Vijayalakshmi, in order to marry her, After the crime, gold ornaments, mobile phone and other materials belonging to Vijayalakshmi were given to Natrajan's parents and brothers.

Besides Natarajan, police had his parents, sister, brother-in-law and paternal uncle as accused, apparently for having tried to tamper with evidence by destroying mobile phone and personal belonging of Vijayalakshmi. Chargesheet for murder and abetment was filed against all suspects before the judicial magistrate court in Paramathi, Namakkal district.

Supreme Court on Confessions and Recovery:

Counsel for suspects, seeking the quashing of the chargesheet, told the high court that except the confessions of Natarajan and his mother, no other incriminating statements or evidence had been obtained by police, and other evidence like mobile phone too had not been recovered by police.

Justice Ramanathan, accepting the arguments and relying on Supreme Court judgement covering the issue, said when the confession does not lead to recovery, the confession is inadmissible n law, and the chargesheet based on such confession has no legal basis, and is liable to be quashed.

"As confession is inadmissible as no recovery has been made following the confession, to permit the prosecution to proceed against the petitioners amounts to abuse of process of the court," the Judge said.

While framing charges on the accused, a court has to consider only the unrebuttable evidence which could get the suspect convicted, he said, adding: "If the evidence is not sufficient to convict the accused, then the court would not be justified in framing the charge against the accused." Non-recovery of the mobile phone too proved costly for the prosecution, as court declined to believe their claim that the co-suspects of Dharmalingam had destroyed the handset and SIM card, inviting another criminal charge of concealing evidence.

Facebook Faces Legal Action for Sexual Harassment

"A sacked Facebook employee, who was asked to leave the company in 2013, has filed a legal complaint against the social networking giant, alleging the company of sex discrimination, sexual harassment and emotional torture." - efytimes.com

Work environment Hostile

The former Facebook employee, Chia Hong, claimed that the work environment was very hostile in the company that she faced severe humiliation as she was asked to organize parties and serve drinks to male colleagues. She alleged that she was asked why she didn't only bother taking care of her child than working for the company.

Racial Discrimination

She further added that she was discriminated for being a woman and also for her nationality. She was Taiwanese working for the social networking giant. She was employed at the company for more than 3 years. She started out as product manager and then shifted to technology partner in finance. The company served pink slip in 2013.

Facebook is on Right Track

According to the Facebook spokeperson, the company work extremely hard to avoid such situation within the company and further stated that the company believes they are on right track.The spokesperson defended that the Facebook treated it employees fairly. Chia Hong has sued Facebook for punitive damages.

Legal Consequence for Harassment of Women in Workplace

If the incident is proved beyond all reasonable doubt it cast a shadow upon the tech giants regarding the safety of woman at workplace. In India, the prevention of harassment of woman at workplace is guided by the famous Supreme court judgement which is popularly known as Vishaka Guidelines which was later replaced with an Act of 2013.

Caveat Petition: Know next move of your opponent in Civil proceedings

What is Caveat?

Caveat is just a preemptive measure to know on the event of suit being initiated against you with respect to particular dispute between the parties.

What is Caveat Petition?

Caveat petition or application could be sought be any person who feels imminent threat of getting sued by others. Caveat Petition must be placed before the court under whose jurisdiction caveator may be sued by the opposite party or parties.

Lapse of Caveat

“Nothing is permanent and perpetual so the caveat”

A cause is limited with a prescribed time period. So the caveat application. They are not ever lasting upon the opposite parties. Any Caveat application is valid for 90 days from the date of application of Caveat application before any court.

Most difficult part with the caveat is the time gap of one or two days from the expected date of being sued to the actual date of filing the suit by the opposite parties. For instance, consider you have own the suit in the trial court, but you sense that the opponent who lost the suit would appeal before the appeal court and decided to file a caveat application before the appeal court to notify you on event of an appeal suit being filed or injunction suit. There would be no problem if the caveat application is filed without any delay. But an unforeseen incident caused a delay of 2 days to file the caveat application then you can see an opportunity for the opponent party to file an appeal suit within 2 days thus frustrate your caveat application.

Advantage of Caveat application:

Nothing changes the consequence of the suit proceeding with or without your caveat application. Remember, caveat is just a preemptive measure to know on the event of suit being initiated against you with respect to particular dispute between the parties. So this will not prevent your opponent to move next appeal court to settle the dispute.

The great advantage which comes with caveat application is that no interim injunctions would be granted against you by the appeal court without hearing you. To be simple, the appeal court or court to which caveat application has been presented will not grant an exparte injunction against you with respect to that particular dispute.

PIL to exempt film actors from Service Tax

Madras High Court refused to grant exemption for film actors

Is a film actor equal to a theatre artist and eligible for service tax exemptions for his earnings? No, the Madras High Court has ruled, refusing to grant exemption for actor Siddharth Suryanarayanan, who wanted to be treated on a par with theatre/folk artists and give tax exemptions.

“The mere fact that there is an element of drama or acting both in case of theatre and films does not mean that the two activities are identical”, said the first bench comprising Chief Justice Sanjay Kishan Kaul and Justice M M Sundresh in an order last week.

Siddharth, who has acted in Tamil, Telugu and Hindi movies, said his job involved skills to display different kinds of emotions, dialogue delivery skills and acting out characters specified by the film director. “These skills are not different from those of an actor who performs in a drama,” he said, assailing a June20, 2012 notification of the Centre exempting performing artists or folk or classical art forms of music, dance or theatre from the liability of paying Service Tax under Section 66 B of the Finance Act, 1994.

Noting that same benefits were not extended to other performing artists such as film actors, Siddharth said the notification was arbitrary and discriminatory and there was no reasonable basis behind such a classification.

Distinction in exemption of service tax is reasonable:

The Centre, in its reply, said the distinction was based on valid differences and pointed out the huge expenditure involved in films as well as the earnings of film actors.

This is distinct from native art and culture, which required protection as it is more in the nature of a non-profit activity, it said. Protection to cultural and educational right and preserving the heritage of composite culture of the nation is a constitutional mandate under Article 29, the Centre said.

PIL misconceived & without any merit:

Describing the PIL as misconceived and without any merit, the bench said: “In our view, the two categories are clearly different and distinguishable and cannot be treated at parity. The mere fact that there is an element of drama or acting both in case of films does not mean that two activities are identical, taking into consideration the circumstances in which films are made and theatre is performed. It is towards the object of Article 29 of the Constitution that a salutary endeavor has been made to give support to native art and culture and encourage them as they suffer from financial constraints. This is not the position of films.”

Also, taxation statutes have to be dealt with due deference to the legislative intent, the judges said, adding: “What is reasonable is a question of practical details and variety of factors, which the court would be reluctant and ill-equipped to investigate.” They then dismissed the petition filed by the actor.

Self Defence not offence: Madras High Court

Every Person has right to Defend Body

Five years after two criminals- Dindigul Pandi and Velu- were gunned down by the city police in an encounter, the Madras High Court on Tuesday said the police action “done in exercise of the right of private defence” could not be termed as an offence.

“An action done in the exercise of the right to private defence can’t be termed as an offence under Section 96 of IPC. Every person has a right to defend his own body,” ruled the first bench comprising Chief Justice Sanjay Kishan Kaul and Justice M M Sundresh.

On February 8, 2010, Pandi and Velu were killed in an encounter at Neelankarai in Chennai. The two were accused in several cases. A PIL was filed by advocate P.Pugalenthi, director of NGO Prisoners Rights Forum, seeking a direction to TN government to register case of murder against the police personnel involved in the encounter.

Police said when they intercepted a vehicle of Pandi and Velu, the duo attacked police, injuring some policemen. In self defence, police retaliated by opening fire.

Police ought to have filed FIR & Probed:

M.Radhakrishnan, counsel for Pugalenthi, said the self-defence plea was available at the time of trial, and that the jurisdictional police ought to have registered an FIR and investigated. Since the death had occurred at the instance of police personnel, an independent probe ought to have been initiated, he said.

Independent probe by Revenue Divisional Officer (RDO):

The bench, pointing out that the report of the revenue divisional officer was exhaustive, said: “A perusal of the report would show that an exhaustive inquiry was conducted and statements from the deceased family members have been obtained. Publications calling for statements were made in the dailies. The report was accepted by the government.”

Pointing out that the petitioner has not assailed the report, they said, “we don’t have factual any premise leading to a conclusion of an offence having been committed.”

Disinterest towards Marital Life is Domestic Violence

Madras High Court ruling on Husband’s disinterest towards marriage life

The madras High Court’s ruling on Domestic Violence Act comes after a complaint was lodged by a woman named “Kalpana” against her husband, who was behaving differently, not showing any interest in the marital life. She said she was threatened that if she or her son revealed his condition, they would not get any share of his properties.

She married the man in August, 1993, and their son was born in March, 1995. She lodged the domestic violence complaint in 2010, when the boy was in Class 11. She demanded her jewellery, dowry and other assets she had brought from her home. She also wanted the court to order her husband to pay Rs. 15 lakh incurred as cost of the boy’s engineering education, besides maintenance of Rs. 10,000 each a month.

In July, 2012, a magistrate court in Coimbatore reiterated the magistrate court’s order and asked him to pay 50% of capitation fee, besides Rs.5000 as monthly maintenance for him.

The father then filed the present petition in the high court. Justice Manikumar, dismissing his appeal, said the man must pay Rs.2.11 lakh within 10 days.

Madras High court on Domestic Violence Victims for Monetary assistance

Madras high court had ruled that Victims of Domestic Violence be paid adequate monetary assistance

In a landmark ruling, the Madras High Court has said women who are victims of Domestic Violence must be paid adequate monetary assistance for food, shelter, health and education, at every stage of proceedings under the protection of women under Domestic violence act, 2005.  Justice S.Manikumar delivered a 120 page verdict to light up lives of thousands of women fighting Domestic violence cases as it provides for maintenance and compensation for almost every conceivable aspect of a married woman’s life.

Protection of Women and Children

Holding that the law envisaged exhaustive protection for the woman and child, Justice S.Manikumar said that man was legally and morally bound to provide for material assistance to a wife who has alleged domestic violence and child. Listing the circumstances in which interim monetary relief could be ordered by a magistrate. Justice Manikumar said:

“The magistrate may direct the husband to pay monetary relief to meet expenses incurred and losses suffered by the woman and her child as a result of domestic violence. Such relief may include, but not be limited to, loss of earnings, medical expenses, loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and maintenance for the woman and her children, if any.”

Need not hear Husband/ exparte order is valid:

To award interim maintenance, the magistrates need not hear the husband and order could be even exparte, Justice S.Manikumar observed. “If any application prima facie discloses that the husband is committing, or has committed act of domestic violence or that there is likelihood that he may commit, the magistrate may grant an ex parte order on the basis of an affidavit by the women.”

No wait till Final Order :

Perhaps aware of the practice among the magistrates to address a woman’s concerns in the final order, Justice Manikumar said: “if contention of the man that lumpsum payment can be awarded only at the time of final disposal of the main application is accepted, then the woman who is in dire necessity to meet medical expenses for children would be put to irreparable hardship.”

Domestic Violence: Economic abuse

Economic abuse is deprivation of financial resources to which the woman is entitled under any law or custom, Justice Manikumar observed. Further, he added: “It is customary that father is morally bound to maintain his wife and child by providing basic amenities like food, shelter and clothing. He is also bound to provide health and education. Protection of Women from Domestic Violence Act, 2005, is intended to provide for effective protection of rights of women guaranteed under the constitution.”

Indian Criminal Law: Legacy

Fundamental of Indian Criminal Law

The development of Indian Criminal justice system has seen various phases. Right from ancient code to present modern Criminal procedure has its own history to support it existence. Unlike today, there were no legal practitioners or lawyers or advocates to speak instead of parties to the dispute. Yet, it was modest for its time.

Pre-British Rule:

To our surprise, the legal system was not administered directly through Kings. It entrusted with concerned village administration. Mostly, the justice depends upon the caste, shreni, guilds to administer justice. Kings were only entrusted with the protection of citizens from external aggression or to conquer new territory. Judiciary was handled based on the caste of the person who was alleged to have committed an offence. Example, a Brahmin would get lenient punishment while a Sudra would be subjected to worse form of punishment even though the offence committed was same. So with the other castes. Guilds which over looked a specific trade regulated the conduct of those specific traders. Hence, they were vested with power to administer justice to that class of traders for any misconduct or malpractice which made them to administer justice to the entire village irrespective of the accused profession at the later stages.

Administration of Justice by Kings:

There was little emphasis on King when it comes to justice. But it was in Dharma Sutras, which mentioned the administration of justice is one of the duties of the Kings, for the first time. There is no distinction between private and personal wrong. So there was no distinction between Civil and Criminal law. The administration of justice is solely based on the Law of Wrong. Manu Code which was not only limited to law, had details regarding various well known offenses of the time such as assault, theft, breach of trust, false evidence, slander, adultery, homicide, libel, etc. Wrong which are considered felony is dealt with worse form of punishment than the misdemeanor. Most of the offences were absolved with ‘bot’. Hence, to pursue justice through Kings were mere option to the parties in dispute.

General Exceptions from Criminal Liability:

However, they made distinction between casual offenders and habitual offenders. They were not treated alike. As provided by the modern Indian Penal Code, there was exemption from criminal liability when some criminal acts are done in self-defense, without any intention or mistake of fact or by consent or by accident.

Justice under Moghuls:

With advent of invader, India got through many social changes. One of them is administration of justice. The law was changed according to the needs of the invaders. Yet, the local village justice administration went unaffected for the most part. The Kazi administered Justice. However, the basic nature of Justice didn’t change. Any wrong, the offender was dealt with punishment.

Defects in the Pre-British Rule:

 

There were some inherit defects in the administration of justice. Prior to the advent of British, India was composed of many independent states controlled by small rulers and chieftain which led to plurality of laws. Each individual sovereign, even though controlling a village, enforced laws different from neighboring rulers and chieftains. Though India was unified under single suzerainty seated at Delhi, the local rulers and chieftains has independent control over the part of land under their control. Hence, there was no uniformity in law, unlike British rule brought to India. Not only it did stop with other enactments such as toll, tax, ferry charges, etc. but extended to Criminal justice administration.

 The offences which carry criminal liability were almost same, yet there was profound difference in the justice implementation and methods of dealing the criminal indicted with such offences.

Modern Criminal Law:

The fundamental principles of modern criminal law are founded on rules of equity, justice and fair play. The Fundamental principles governing criminal law administration stated below:

Actus non Facit reum nisi mens sit rea:

The Maxim is “an act in order to become a crime must be committed with a criminal intent”. An innocent act without criminal intent will not attract criminal liability. This is to safeguard a person who does a bona fide act without mens rea which attracts criminal liability. So, any act without ill intent to cause harm will not attract criminal liability.

The mens rea, criminal intent, denotes the mental aspect while the actus rea denotes the physical aspect of the crime. But for mere mens rea the prosecution shall not be initiated. The mens rea must follow an act or omission which must contradict Criminal Law in force. But any act or omission on account of self-defense will not attract Criminal liability if the act or omission is justifiable.

Ignorantia facit excusat, ignorantia juris non excusat:

The Latin maxim states “ignorance of law is no excuse”. The primary reason for implementing the rule is to prevent abusing this clause. Any person accused of punishable offence will claim. In order to avoid frivolous defense, it is forbidden to defend oneself with “ignorance of law”.

Yet, one can take up “ignorance of fact” as an excuse from Criminal Liability. It is justifiable to states that the accused is ignorant of facts. Mistake of fact is admissible while mistake of law is forbidden. Though, “ignorantia juris” is not acceptable, it is helpful to assess the mental state of the accused. 

Expost facto law:

To make an act or omission to do an act an offence, then it must be declared by law. For any act or omission which was not stated in the statue as an offence at the time of commission of the act or omission, criminal liability will not arise. To be simple, at the time of act, such act must have been declared as criminal. This is to safeguard innocents who will later be prosecuted for the past act or omission. Criminal law of any society stands good for the norms and values of that society. Any uncertainty in Criminal law will create unrest and unstable society. This was enshrined in the Article 20 of Constitution of India.

Presumption of innocence:

Unless and until the accused is proved have to done any criminal act beyond any reasonable doubts, the accused shall be presumed to be innocent. This was incorporated to protect the interest of the accused to defend him at any point of the prosecution.

Accomplice:

In Indian Criminal Justice system, the accomplice is place at par with the accused and liable for the same punishment as the principal accused. This was upheld in the Post Master Murder Case where the accomplice claimed that he was merely watching the murder and he was not directly involved in the murder of the post master and so requested for the release. But the court decided the other way.

Rights and protection to an accused:

There are several protections to the accused during trial, before or after the trial. These rights are inalienable. The following are remarkable rights:

• Right to be produced before the Magistrate within 24 hours of arrest
• Right to bail
• To get released on bond
• Right to legal counsel and legal aid
• Right against self-incrimination
• Right against double jeopardy.

The rights which protect accused to fetch a free and fair trail to the accused. This will ensure no miscarriage of justice is done.

Land Acquisition: Madras High Court ruling restraining acquisition from freedom fighters and defence personnel

Courts Orders Return of 7.83 Acres of land acquired from family of Freedom fighter.

Ruling that movable and immovable properties held by freedom fighters and defence personnel should never be acquired by government for any purpose, the Madras High Court has ordered return of 7.83 acres of land, worth several crores now, at Maraimalai Nagar, near Chengalpet, to children of freedom fighters. Justice C.S.Karnan ruled that acquisition could not be sustained because it had come against a 1948 order of allotment. Neighborhood schemes are not of more paramount importance than freedom fighters, he said, adding that the family of the freedom fighter was cultivating the land for the last 66 years.

“Could the selfless sacrifices of such stalwarts as Mahatma Gandhi and others get obliterated overnight by a simple piece of unconsidered land acquisition? Freedom fights, defence personnel and their family members are shouldering the security of 125 crore-strong population of India. Therefore, their assets – moveable or immovable- should not be disturbed at any cost” – Mr. Justice C.S.Karnan observed in an order.

Freedom fighter Subbiah was among five beneficiaries for whom 50 acres of land was allotted a year after Independence. As his share Subbiah got 7.83 acres of land by a 1948 order which de-reserved a portion of reserved forest at katankulathur near   Maraimalai Nagar. Subbiah died on 1973. In 1974, the lands were acquired for the Maramalai Nagar neighbuorhood scheme, which envisaged developing residential plots to house about 1 lakh people.

Compensation for Land Acquisition:

Fourteen years later, in 1986, a compensation of Rs.2.68 lakh for the acquired land was announced, and deposited in a civil court as the sum could not be apportioned among the four children of Subbiah. Till date the family has not received any compensation, his son S.Balasubramaniam said. After many rounds of litigation and contempt proceedings, he filed a petition in the Madras High Court saying the acquired land was still under their physical possession and that even 29 years after acquisition the land remained vacant. Lands acquired for residential purposes had been used for Industrial and commercial purposes.

Re-conveyance ordered:

While delivering the judgment, Justic Karnan observed that the land was put for other use than the intended use for which the acquisition was made. He then directed the CMDA and other authorities to re-convey the land to the blood relatives of the freedom fighters within 2 months.

Indian Catholic Divorce: Canon Law

PIL sought recognition of Catholic Church Canon law.

“India is secular but don’t know how long it will remain so” – Supreme court of India.

The Supreme Court of India has expressed concern over the growing influence of religion on social issues. Justice Vikramjit Sen batted for a Uniform Civil Code. Justice Sen said law should not be compelled to recognize dictates of personal law in civil and family matters like divorce, marriage and adoption. The petitioner, a resident of Karnataka, sought validity of divorce granted by Christian Court formed under Canon law as the divorces granted by Christians Courts are not recognized by the Courts. The petitioner is prosecuted for bigamy under section 494 of Indian Penal Code.

Under Canon law, the Catholic Church does not accept the nullification of marriages unless divorce is sought in a canonical court.

Courts should recognize Cannon law like they do Muslim laws:

The petitioner claimed that it is reasonable that when the courts in India recognize the dissolution of marriage (divorce)(by pronouncing the word talaq three times) under Mohammedan law which is the personal law of Muslims, the courts should also recognize for the purpose of divorce Canon Law as the personal law of Indian Catholics.

The Cannon law says that Catholics are required to marry in a Catholic Church and enjoins that they seek nullity of marriage i.e., divorce in Canonical Court also under the code of Canon law. Otherwise, the marriage and the divorce are not recognized by the Catholic Church.

The Petitioner further contented that if the criminal courts which are prosecuting the petitioner for the offence under section 494 of Indian penal code i.e. bigamy, then hundreds of spouses, married second time, who had sought divorce through Canonical Courts, would face similar prosecution and fine.

The Supreme Court had granted 4 week time to the Centre government to file a reply on the petition. While granting the time the Supreme Court has observed as stated above. It has made to rethink about the Uniform Civil Code. Such personal law for marriage and divorce are recognized as such then the administration of justice would be difficult. The complex judicial procedure would get complicated further with implementation of personal laws as the presiding officers had to well verse with personal laws of each culture.

For India’s vast diversities, implementation and recognition of all personal laws all community and ethnic tribes is unfeasible. It will create uncertainties in the administration of justice. For a stable society, a certain and standard law must be applicable especially when it comes to laws relating to marriage and divorces as the identity of children and family depends upon such laws.