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Rising Police Brutality and Human Rights Violations in India: The Need for an Anti-Torture Law13/8/2020 (Amol Verma is a fourth year student of Chanakya National Law University, Patna)
"Custodial torture is a naked violation of human dignity and degradation which destroys, to a large extent, the individual personality.” - A.S. Anand J. Introduction While on one hand, India stands with the world for the outrage against the police brutality in the USA, the other hand appears to be following the similar kind of torture behind bars. The custodial deaths of the father-son duo namely- Jeyaraj and Bennix have sparked a series of debates and discussions regarding the unauthorized use of force by police officers. A more recent incident depicting the travesty of justice was the Vikas Dubey encounter case. All these incidents where the legal procedure is hijacked by the police are weakening the Rule of Law. Police brutality takes different forms some of which are custodial rape, fake encounters, lathi charges, and custodial torture. Out of all the forms of police brutality custodial torture has witnessed a massive rise. Custodial torture scars the conscience of a civilized society which is administered by Rule of Law.
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( Sneha Palekar and Palak Choudhary are 4th year students of ILS Law College Pune, Savitribai Phule Pune University )
INTRODUCTION A three-judge bench of the Honourable Supreme Court of India (“SC”) on 21st January 2020, in the case of Keisham Meghchandra Singh v The Hon’ble Speaker of Manipur Legislative Assembly, (“Manipur LA Case”) evaluated the design of the Tenth Schedule (“TS”), termed as ‘The Anti-Defection Law’, which ascribes the method for resolution of disputes arising by reason of Defection. (Eeshan Krishnatria is a second year student of National Law University, Jodhpur)
In the current paradigm, it has become incrementally necessary for the courts to establish a firm stance in order to stabilize its position. It is relatively recent when the Supreme Court circumscribed its jurisdiction in the Rafael case, wherein the review power possessed by the apex court seemed to be reduced and limited, particularly pertaining to matters of ‘national security’. This article will extrapolate this very issue, but in the cynosure of internal security legislations, specifically the Armed Forces (Special Powers) Act, 1958 [hereinafter AFSPA]. The AFSPA derives its legal prowess from a pre-independence statute, namely, Armed Forces Special Powers Ordinance, 1942. The chief purpose behind this was to suppress the incremental gains of the ‘Quit India’ movement. The Act, as we know it now, was passed with the purpose of containing the lasting insurgency movements which were widespread in Assam and Manipur. It was only after a subsequent executive action that the scope of the said Act was expanded to subsume Punjab and Chandigarh and later Jammu and Kashmir. (Mehula Liza Pallathu and Tapamoy Ghose are second year students of National University of Advanced Legal Studies, Kochi)
Controlling obscene material is a policy of the Indian government, which is recognized in S.292 of the Indian Penal Code (I.P.C.), the constitutional validity of which was established in a line of judgments. S.67 Information Technology Act, 2000 (hereinafter to be referred to as the I.T. Act), is another step in extending the reach of these laws to the electronic medium. It lays down punishments for publishing or transmitting materials in electronic form, which is obscene and has the ability to corrupt the minds of those who read such materials. Two major flaws in this provision result in it becoming a censorship tool. Firstly, it is expansive: what it is and what degree is punishable is left to arbitrary interpretation. Thus the vague wording enables an expansive interpretation of S. 67 of the I.T. Act, which has been misused by the political executive time and again. S Thirumurugan, a 19-year-old youth from Tamilnadu, was arrested for allegedly making abusive comments about Prime Minister Narendra Modi in a private Facebook conversation for which he was sent to jail, under the S.67 of the I.T. Act. (Naina Agarwal and Archie Anant are third year students of Rajiv Gandhi National University of Law, Patiala)
“The internet is a powerful example of free speech and the free market in action; it is curious that the Net has alarmed the lawmakers of a nation founded on those principles.” - Denise Caruso INTERNET AND DEMOCRACY Welcome to the 21st century, where due to technological advancements, the internet has become ‘voice of the people’. With its increasing availability at low cost, the internet has become the facilitator of people’s fundamental rights, especially right to free speech and expression, accessing information and forming associations. Through internet platforms, massive political changes have been brought in various democratic and authoritarian countries by mobilizing people easily within a limited time frame. Many revolutions and movements like ‘#MeToo movement’, ‘Jan Lokpal’, ‘Arab Spring’, ‘SlutWalk’, ‘WikiLeaks’ etc. have gained momentum through internet platforms. It not only promotes private interest but public interests too. Democracy is way beyond voting or choosing representatives. Democracy is about ‘citizens’ who are empowered to disseminate information required for their governance. Habermas would have called the Internet a new ‘public sphere’. (Gaurangi Sharma and Nitya Saxena are fourth year students of National Law University, Nagpur)
“Errors do not cease to be errors simply because they’re ratified into law.” - E.A. Bucchianeri The protectors of the nation are taking laws in their own hands, exceeding their powers and executing the ‘dangerous demons’ of the society through encounters. The police have effectively made a mockery of the judicial system in their quest of delivering instant justice. Extra judicial killings have become a routine task for the policemen and have posed serious questions before us: Is an encounter an excuse to violate the rule of law? Can the ‘right to life’ guaranteed by the Constitution of India be discarded to slaughter such dreaded criminals? In the garb of a blooming public voice of vengeance, the recent encounter of Vikas Dubey has unwillingly become a celebration of the failure of justice. This article will analyze the constitutional challenges posed by extra judicial killings and the resultant violation of basic constitutional principles. (Ishaan Paranjape and Kedar Dhargalkar are third year students of Adv. Balasaheb Apte College of Law, Mumbai.)
Constitutionalism is an idea based on the belief that the government can and should legally limit its powers, and the governmental authority and legitimacy depends upon these limitations. It may be said that the touchstone of constitutionalism is the concept of limited government under a higher law. The absence of this phenomenon will lead to despotism. When the phenomenon of constitutionalism is seen through the lens of changing time, it can be referred to as 'transformative constitutionalism. Transformative constitutionalism stands for the principles of the Constitution and frowns upon the dogmatic reference of the text, and the former is often used to supersede the concepts envisaged even in the Constitution This principle of constitutionalism was clarified recently in Indian Constitutional jurisprudence through Navtej Singh Johar, wherein Chief Justice Dipak Misra had observed that "…it is only when we adhere to constitutionalism as the supreme creed and faith and develop a constitutional culture to protect the fundamental rights of an individual that we can preserve and strengthen the values of our compassionate Constitution…”. (Ashwin Vardarajan is a third year student at Symbiosis Law School, Pune.)
Every government authority, public body and institution requires finances to survive, which is an in-expellable element for its day-to-day functioning. India’s federal structure, laid down under the Constitution of India (“Constitution”) burdens the Central government to distribute funds to the States after it has been duly accounted and collected in the form of taxes, levies, tariffs etc. The 15th Finance Commission Report (“FCR”), in its interim report on the distribution of financial resources between the Centre and States for the fiscal year 2020-21, has raised important questions on how financial resources are distributed under India’s Constitutional framework. The Constitutional Framework The Centre and States collect revenue in the forms of taxes, toll fees, exercise etc., and they all go into the pockets of the Centre or the State on basis of who collects the revenue. For example, if the Central government imposes certain taxes on persons living in a State, the revenue collected thereof shall be considered as Central revenue. This distribution of powers to collect revenue stems from the broader classification of powers of legislative competence provided under Schedule VII of the Constitution. (Aayushi Singh is a lawyer who graduated from Institute of Law, Nirma University, Ahmedabad. This is the final article in a three part article series. ) In the previous part, the author discussed how the Supreme Court has successfully bypassed the attacks on its legitimacy by concurring with the demand of a “committed judiciary” that works parallel to the interventionist government. The author further discussed the Supreme Court’s efforts for gaining legitimacy with respect to the use of Public Interest Litigation and entering in the domain of judicial populism rather than focusing more on its classical function of judicial review. Public Interest Litigation vis-a-vis International Law Article 51(c) of the Constitution of India directs the state to ‘endeavour to’, inter alia, ‘foster respect for the International law and treaty obligations in the dealings of organised peoples with one another.[1] This Article falls in Part IV, which is Directive Principles of State Policy; although these are not enforceable by any court, they are fundamental in the governance of the country and it is the duty of the state to apply these principles while making laws.[2] Court has been widely using the principles of International law as model law while delivering its judgement; several International legal norms have been incorporated in the fundamental rights. The precautionary principle incorporated into the environmental law in the case Vellore Citizen’s Welfare Forum v. Union of India (1996) 5 SCC 647, is a legal norm; court repeatedly expanded the reach of international law in the domestic law. (Aayushi Singh is a lawyer who graduated from Institute of Law, Nirma University, Ahmedabad. This is the second article in a three part article series. )
Part one of the series dealt with the issue Public Intrest Litigation and how it has diverted from its original purpose of introduction in the judicial system. The author traced the development of jurisprudence on the issue and argued that the Supreme Court adopted a paternalistic approach in the garb of delivering substantive justice which has ultimately had adverse effects on those approaching the courts. The Supreme Court and its 'Promiscuous' Role Legitimacy in itself is a complex phenomenon and is difficult to decrypt, what we definitely know is that if some action is not legitimate then it is bad in the eyes of law. Supreme Court’s authority, normative aspect of its institutional authority can be perceived from the court’s justification of its authority.[i] The other aspect that is the sociological aspect can be perceived from the acceptance, trust and support that the public gives the court over a relatively long period of time.[ii] Supreme court has been trying to achieve legitimacy from the perspective of both the aspects, its encroaching upon the legislative and executive functions by taking the defense of providing justice to “the people”. It has been focusing more on judicial populism by expanding the scope of PIL, relaxing procedural safeguards to provide access to justice to the most marginalized and the oppressed, issuing guidelines in line with international legal norms in the name of public interest. |
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