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  • Oct 11, 2019
    Whether you will be tried under this offence or not? [Sec. 146] Rioting- It occurs when, i- The accused persons (must be five or more in number) form an unlawful assembly. ii- The accused must be animated by a common object. iii- The force or violence must be used by the unlawful assembly or any member thereof in prosecution of the common object. The common object of A,B,C,D,E,F, is not illegal, it’s is not rioting even if force is used by any member of that assembly.[1] ‘A’ and ‘B’ were the member of the audience in a public theater , who applauds and hiss a performance, hence it is not a riot.[2] P,Q and others came prepared to interrupt the performance by causing a disturbance, it may be rioting though they may not use any personal violence or cause any injury to the house.[3] Kindly read more https://shataxiamicuslex.blogspot.com/2019/10/rioting-100-trial-6.html
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  • Sep 20, 2019
    Moratorium Trial of Second suit on Variant matter Doctrine of Res-Judicata has been designed for baring the trial of the second suit on the same subject matter which has already been decided by the court in first suit. It says- “When in a suit a subject matter either directly or substantially has been decided between the parties under the same title finally by the court, there shall be no trial of the same subject matter and under the same title” The importance of this doctrine is observed in the Case of Satyadhyan Ghosal and ors. Vs. Sm. Deorajin Debi 1960 The S.C. observed that is the absence of this doctrine there will be no end of litigation & the parties would be to put in constant trouble, harassment & expenses. Res-Judicata relies upon This doctrine relies upon particular roman maxims:- Must read and give your valuable feedback https://shataxiamicuslex.blogspot.com/2019/09/blog-post.html
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  • Sep 03, 2019
      देशात मागील ५ वर्षात रस्ते अपघातांमध्ये वाढ झाल्यामुळे रस्ते सुरक्षेच्या विद्यमान कायद्यात नुकतेच काही बदल करण्यात आले आहेत . तीस वर्षे जुना कायदा रस्ते अपघात थांबविण्यास आणि वाहतुकीची प्रक्रिया सुकर करण्यास सक्षम नसल्याने कायद्यात काही बदल करणे आवश्यक होते .    कायद्यातील काही महत्वाच्या तरतुदी    १) अल्पवयीन मुलांना वाहन चालवायला देणे:   नवीन कायदा-१९९ ए अंतर्गत गुन्हेगाराला २५ हजार रुपये दंड आणि ३ वर्षाची शिक्षा ठोठावण्यात आली आहे . या शिवाय बाल न्याय कायद्या विरोधात कारवाई केली जाईल .    २) हिट अँड रन प्रकरणी मृत्यू झाल्यास २ लाख रुपये नुकशान भरपाई :   नवीन कायद्या अंतर्गत , अशा परिस्थितीत पीडित व्यक्ती जखमी झाल्यास आरोपी ड्राइव्हरला ५० हजार आणि जखमींचा मृत्यू झाल्यास २ लाख रुपये दंड आकारण्यात येईल.    ३) हेल्मेट न घातल्यास हजार रुपये दंड:   आता हेल्मेट न वापरल्यास १ हजार रुपये दंड आकारण्यात येईल . शिवाय वाहनचालकाचे लायसन्स जप्त करण्यात येईल .    ४) परवान्याशिवाय गाडी चालवल्यास ५ हजार रुपये दंड:   परवान्याशिवाय गाडी चालवणाऱ्यास कलम १८१ अन्वये ५ हजार रुपये दंड आकारण्यात येईल .    ५) गाडी चालवतांना फोन  वर बोलल्यास ५ हजार दंड :   गडी चालवतांना मोबाईलवर संभाषण केल्यास आता १ हजार नव्हे तर ५ हजार रुपये दंड आकारण्यात येईल.    ६) अयोग्य पद्धतीने रस्ता बांधल्यास १ लाख दंड :   अयोग्य पद्धतीने रस्ता बांधल्यामुळे जर अपघात झाला एखादा अपघात झाला असेल तर आता थेट एजन्सी किंवा कंत्राटदाराला प्रत्येक प्रकरणात १ लाख रुपयां पर्यंतचा दंड होऊ शकतो .    ७) ४ वर्षा पेक्षा जास्त वयाच्या मुलांना सीट बेल्ट सक्तीचे :   नवीन कायद्याच्या कलम १९४-बी अंतर्गत ४ वर्षा पेक्षा जास्त वयाच्या मुलांसाठी कारमधील सीट बेल्ट सक्तीचे केले आहे. जर तसे झाले नाही तर वाहन मालकाला १ हजार रुपये द्यावे लागतील हाच कायदा दुचाकींचा वर बसणाऱ्या मुलांना सुद्धा हेल्मेट सक्ती अनिवार्य करतो .    ८) रिकॉल ऑफ व्हेईकल :   सध्याच्या कायद्यात अशी कोणतीही तरतूद नाही कि केंद्र सरकार पर्यावरणाच्या कायद्याचे उल्लंघन करणाऱ्या वाहनांना परत बोलवू शकेल . आता नवीन कायद्याच्या ११० ए आणि ११० बी मध्ये रिकॉल ऑफ व्हेईकल ची पॉवर देण्याची तरतूद केंद्र सरकारला देण्यात आली आहे .    नव्या कायद्या नुसार दंड    रेसिंगवर - ५ हजार रुपये  सीटबेल्ट - १ हजार रुपये  हेल्मेट न घातल्यास  - १ हजार रुपये  जास्त वेग - २ ते ४ हजार रुपये प्रस्तावित आहे  धोकादायक वाहन चालविणे - ५ हजार रुपये  मद्यधुंद वाहन चालवणे - १० हजार रुपये दंड आणि तुरुंगवासाची तरतूद    जगभरात ड्रायव्हिंग लायसन्स काढण्याची सर्वांत सोपी प्रक्रिया भारतामध्ये आहे. दुचाकी किंवा चारचाकीच्या लायसन्ससाठी ऑनलाइन अपॉइंटमेंट घेण्यापासून इन्स्टिट्यूट ऑफ ड्रायव्हिंग ट्रेनिंग व रिसर्चच्या (आयडीटीआर) अत्याधुनिक ट्रॅकवर टेस्ट घेण्यापर्यंत बदल झाला आहेत. त्यामुळे लायसन्सच्या चाचणीमध्ये मानवी हस्तक्षेप बंद झाला आहे. वाहन नोंदणी व मोटार वाहन कराबाबतची प्रक्रिया ऑनलाइन करण्यात आली आहे. त्यामुळे आरटीओमध्ये रोख स्वरूपात होणारे व्यवहार आता अपवाद वगळता बंदच झाले आहेत. जुन्या कायद्यात आता आमूलाग्र बदल करण्यात आलेले आहेत , तेव्हा लहान तसेच मोठ्यांनाही RTO चे नियम पाळायलाच हवे. कारण हे नियम दुसऱ्या कुणासाठी नसून आपल्याच हिता चा विचार करून तयार केलेले आहेत.
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  • Aug 20, 2019
    An advocate is a professional or non-professional in the field of law. There are ample quotes to justify the advocate’s work and their contributions to society as a whole and particularly individuals too. But how much we know about their rights? Does an advocate have a pre-defined mechanism to save himself/herself? We’ve stipulated some of the laws under which the rights to the practice of an advocate are protected: General protection – the Constitution of India protects the right of individuals to practice professions of their choice under Article 19(1)(g). As members of the legal profession advocates to partake in this right along with members of other trades, occupations, and professions with equal involvement. Specific Protection – A Person confers whose name is enrolled in the registers of State Bar Councils, the right to practice before any court or tribunal in India including the Supreme Court in Section 30 of the Advocates Act, 1961. Through a notification issued by the Central Government, this section has been recently made effective. Also as per Section 29 of the Advocates Act, the right of practicing is exclusive and precludes all persons other than advocates from practicing law. Through this, it can be generalized that the rights of the advocates are lesser than the duties performed by them. Advocates undoubtedly act as a savior to the humankind!
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  • Jul 22, 2019
    NGO are working tirelessly, day and night, 24x7 for those children who are in need of care and protection or the delinquent child. They work for the betterment of these children from the time they are born and continue to help and support them, whether economically, educationally, and socially or in terms of health care facilities. By this way, they reduce the possibilities of child delinquency. These NGO’s play a vital and essential role in betterment and rehabilitation of children; because when a person has a better present he has a better future. These NGO’s are evading the child delinquency by implementing these programs. They mainly focus on five thematic areas: Child Protection, Health & Nutrition, Education, Humanitarian Response & Disaster Risk Reduction and Child Poverty. These five-fold programs are not only reducing the possibilities of the child delinquency or feasibility of adult criminals but are in actual sense rehabbing the juveniles or for that matter rehabbing ‘the child in need of care and protection.’  The term child in need of care and protection is described under sub-section 14 of section 2 of the Juvenile Justice, Care and Protection of children Act, 2015. Children are the precious asset of our country and it’s our responsibility to ensure that they have a safe environment to live in. The last decade has seen a huge leap in the rate of Juvenile crime in a developing country like us, India. Today, Juvenile crime is like a disease to our society which is becoming incurable. The criminal justice system of India treats everyone differently for different crimes and also gives some exceptions and leniency to some classes of people for personal reasons. These exceptions are mentioned in the Indian Penal Code. “Juvenile” has been defined differently in different Acts, but as per the latest Act i.e. The Juvenile Justice, Care and Protection Act, juveniles are those who have not attained the age of 18 years. There is a juvenile justice system that treats juveniles differently than adults, because of our society believes that former is different from the latter, both in terms of responsibility and potential for rehabilitation. As we all know that Adolescence is that period where a child is filled with enormous confusions, and they are not able to differentiate between right and wrong. At this stage they are like a piece of clay to which their behavior, the society, the neighborhood, the friends and family, the teachers or any other person with whom the child interacts, plays an important role in order to mold one’s character from bad to good or vice-versa. It’s a time filled with rage and impulse. The National Crime Record Bureau’s (NCRB) data shows that there has been a rampant increase in crime rate for juveniles.There are many NGO’s in India as well as in the state of J&K, which are currently working for the rehabilitation of the Juveniles, in the state or in the country. These NGOs has proved their potential again and again to help these children.
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  • Jul 12, 2019
    Role of NGO In Rehabilitation of Juveniles   The term child in need of care and protection is described under sub-section 14 of section 2 of the Juvenile Justice, Care and Protection of children Act, 2015. Children are the precious asset of our country and it’s our responsibility to ensure that they have a safe environment to live in. The last decade has seen a huge leap in the rate of Juvenile crime in a developing country like us, India. Today, Juvenile crime is like a disease to our society which is becoming incurable. The criminal justice system of India treats everyone differently for different crimes and also gives some exceptions and leniency to some classes of people for personal reasons. These exceptions are mentioned in the Indian Penal Code. “Juvenile” has been defined differently in different Acts, but as per the latest Act i.e. The Juvenile Justice, Care and Protection Act, juveniles are those who have not attained the age of 18 years. There is a juvenile justice system that treats juveniles differently than adults, because of our society believes that former is different from the latter, both in terms of responsibility and potential for rehabilitation. As we all know that Adolescence is that period where a child is filled with enormous confusions, and they are not able to differentiate between right and wrong. At this stage they are like a piece of clay to which their behavior, the society, the neighborhood, the friends and family, the teachers or any other person with whom the child interacts, plays an important role in order to mold one’s character from bad to good or vice-versa. It’s a time filled with rage and impulse. The National Crime Record Bureau’s (NCRB) data shows that there has been a rampant increase in crime rate for juveniles. There are many NGO’s in India as well as in the state of J&K, which are currently working for the rehabilitation of the Juveniles, in the state or in the country. These NGOs has proved their potential again and again to help these children.   They mainly focus on five thematic areas:   Child Protection, Health & Nutrition, Education, Humanitarian Response & Disaster Risk Reduction and Child Poverty. These five-fold progrms are not only reducing the possibilities of the child delinquency or feasibility of adult criminals but are in actual sense rehabbing the juveniles or for that matter rehabbing ‘the child in need of care and protection.’ These NGO are working tirelessly, day and night, 24x7 for those children who are in need of care and protection or the delinquent child. They work for the betterment of these children from the time they are born and continue to help and support them, whether economically, educationally, and socially or in terms of health care facilities. By this way, they reduce the possibilities of child delinquency. These NGO’s play a vital and essential role in betterment and rehabilitation of children; because when a person has a better present he has a better future. These NGO’s are evading the child delinquency by implementing these programs.
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  • Jun 25, 2019
    The history has numerous stories about the communities which were tortured and treated brutally for belonging from relatively lower castes. The facts evidently clear the past and show a biased behavior of the superiors. People were segregated with the term of ‘Un-touchable’ and were forbidden from receiving any education.  After a rough journey, the protagonists exempted these communities and created a liberated society which gave birth to a prodigious act; Reservation! The reservation ventured as a noble cause in 1902; to address the historic despotism, inequality, and discrimination faced by socially, economically and educationally backward caste communities. It blazed the entire era of education and these under privileged people withstood the process of becoming literate. The government issued pivotal acts for the students and employees of backward castes and registered them under 15(4), 15(5), 16(4), 16(4A), 16(4B), 46, 334 and 335 in the Indian constitution. Today in India, of the total number, 49% comes under the reservation quota for SCs, STs and OBCs to give social justice to these minorities. But with the increasing rate of literacy, the benefits of reservation are being misused and the forward class has rebelled against it. People have started questioning the economical statuses of the minors and ask no reservation for the privileged candidates. Instead, they’re demanding reservation for every economically underprivileged student belonging to any caste. The benefits of this policy has also provoked a thought of inequality amongst which demands the government to give a quick verdict. Through a source, it has been told that a 10% reservation for every economically poor student having the annual income of less than 8 lakhs and up to 5 acres of land will be availed a reservation quota. Also, section 15(4), 15(5) and 16(4) will be amended for this implementation. There are no longer any caste based communities. Today, India has been divided in two communities; Supporters and Protesters of the reservation acts. People are effortlessly turning out to be violent and hurting others because of this movement. Also there are blind religious followers who are making it more complicated by threatening either of the groups. This rebel can either make India a radical nation or a blood-sheding battle field. There are people who are fighting for the equal rights and there are people who are just propagating their mean agendas out of this. Which side are you on? Choose wisely!
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  • Jun 15, 2019
    Article 21 of the Constitution of India states that "No person shall be deprived of his life or personal liberty except according to procedure established by law" which directly shows that a person can enjoy full liberty and pursue his life as the way he/ she wants to. If somebody, by any reason tries to violate it (Privacy of an individual) will be prosecuted. On August 24, 2017 A bench of 9 judges of Supreme Court of India including CJI J.S. Khehar has delivered the judgment that Right to privacy is a fundamental right of every citizen of India. Now, the question arises here is that if Right to privacy under Article 21 is a fundamental right then how the authority i.e. the government agencies and the other security agencies can interfere in someone's private and personal liberty? Isn't it violating the fundamental right for which the offenders need to be penalized? The point come to an individual's mind is that if a person free to do anything which is not forbidden by law then why the breach of the privacy of an individual's is done? Then simultaneously if we look at the problem faced by the security agencies make us feel that the breach done by the agency to monitor the activity of that individual was legal and needs no penalization. Privacy includes every private, personal, consensual or non-consensual matter of an individual. If that privacy is disclosed the personal life, status and reputation of an individual may get affected in the society. Privacy also includes the biometric data of the citizens, the details of their bank account, the medical data prescriptions and sometimes the social networking sites too. If the privacy is disclosed the individual may go in the state of depression, or his personal life may get destroyed. In this matter, Justice K.S. Puttaswamy (Retd.) and Anr. V. Union of India and ors [write petition (civil) 494, 2012 S.C.] passed a landmark judgment that a person's privacy Right is protected as a fundamental right as under Article 14, 19 and 21 of the Constitution of India not only protects but respect every citizen. India is the second largest democracy which has too many different sections. Section here is the category of people belonging to different sex, class, caste, religion and region etc. But nowadays the government has allowed the security agencies to interfere in person’s social media accounts, as much as in personal life under Article 21, the Supreme Court of India has legalized the relation between same sex. The Supreme Court of India on 6 September 2018, delivered the legalization of same sex intercourse and has quashed Section 377 of Indian Penal Code, 1860. The question again arises that Is legislation trying to dominate the order of the honourable court. Not at all the government interfering in personal life of a person is trying to monitor the activities which may be unusual. The Government has ordered some of the agencies like NIA, RAW and IT department to monitor the activities which  may be suspicious except those consensual. This monitoring includes Telephone tapping, hacking of the email Ids, reading text messages and the interfering in social media accounts etc. It is always observed that if something is achieved without hard work and risk it does not retain to us for long time. So the government is trying to work hard in the development & is trying to work hard in the development of IT department and wants to retain the peace in country. The recent news of breach of privacy of Cambridge University by facebook was criticized and that was not fair with it (that breach of privacy). Do we have focused on the interfering on the individuals account or data, but security agencies have. The reason for such interference is national security. The government and security agencies are always monitoring the activities of citizens. It will reduce terrorist activities, it will help in monitoring a person’s bank account and source of money, riots can be revoked, criminals can be caught easily, and penalization will be easy too. Everything in this universe has pros and cons, so as this right to privacy. Before 90’s there was no requirement of privacy laws, IT laws etc, but with development in information technology citizens have started using technology not according to this needs but according to their greed’s. In India there is a requirement of data protection laws because nowadays the telecom companies, illegal hackers and unsocial citizens (for illegal means) are mishandling the data. On the other hand, government itself is trying to access the data of all the citizens. If we take the example of few months back accused citizens, were believed to have link with ISIS. He was arrested by the monitoring system by interfering in his privacy which shows that if the monitoring of data is done in good faith it will be a boon otherwise it is known as Breach of privacy. In this era the interference in the privacy of citizens has become requirement. The government has introduced new sections 43A and 72A in IT act, which talk about civil penalties and criminal prosecution respectively if someone try to interfere or restraint the personal liberty of an individual. Nowadays the IT department is trying to defeat end-to-end encryption which will really be a breach of privacy; it means that the government is trying to take control in their hand by monitoring the group chats and personal chats of a citizen. Every individual wants a free space in society which is free from societal boundations. In case of Smt. Maneka Gandhi Vs Union of India, 1978. Seven judge bench by Supreme Court, this made a clear way for space free from societal norms and similarly in case of Naz Foundation case, 2009, that If someone wants to maintain his/her privacy as homosexual or transgender then they can.  Article 14, 19 and 21, make every individual an essential element of the society. Right to privacy gives right to every individual to maintain their privacy or they want to expose it or not. These all are the matter of privacy and based on totally discretion of the individual. To share or disclosure of the privacy in public. According to present scenario, the government should make new laws which penalize the offensive, illegal or unwanted chats or the IT department should develop a software which may catch the talk of anti-national or forbidden words when take place. Suggestion can be many but implementation are few. Right to privacy can also be interpreted and understood as ‘Right to be let alone’ a statement by warren and brandies. Agencies dealing with the problem must focus on status and dignity of the individual before disclosing it in public or no need to disclose until something offensive got in between. Data protection is as equal as protection of citizens. Let’s understand it by an example suppose an individual has murdered someone and is also suffering from TB disease, the disclosure of his offence and act must be done, but not about his disease in public. Like that the data stored in university, banks, hospitals, and MNC’s and on social networking sites. The citizens as well as the government both are equally liable in protection of data and maintaining the privacy of each other.   By Vikas Pratap Singh BA LLB, 2 Semester TIPS, Dwarka.
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  • Jun 07, 2019
    One of the main objectives of the United Nations is to bring about peaceful means and conformity with principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of peace. In order to achieve this purpose it was essential to establish a judicial organ of the United Nations. According to Article 92 of the UN Charter, the International Court of Justice is the principle judicial organ of the United Nations. The court carries out its functions according to the Statute which is an integral part of the Charter. International Court of Justice consists of 15 judges who are elected by the General Assembly and Security Council separately. The judges of the court are required to be independent. The Court elects its President and Vice President for a period of 3 years. They may be re-elected after the expiry of the time. The Court may from time to time form chambers composed of three or more judges as the Court may determine for dealing with particular categories of cases. The Statute of ICJ also lays down the provisions regarding the appointment of ad hoc judges. The judges are elected for a term of 9 years and can also be re-elected after the expiry of their term.   Who can refer the dispute to the Court? Article 34 of the Statute lays down that only states may be the parties in cases before the Court. It implies that it is not necessary that state should be sovereign and independent in order to become parties to the Court. India was a party to the Statute before it became independent. Article 93 (1) provides that all members of United Nations are ipso facto parties to the Statute of the Court and hence they all have automatic access to the Court. Article 92 Para 2 of the Charter provides that non-members of the United Nations may also become parties to the Statute. They could do so only on conditions determined in each case by the General Assembly on the recommendation of the Security Council. Other international organizations may seek advisory opinion of the Court under Article 34 on any legal questions. According to Article 59 of Statute of I.C.J its decisions are binding only on parties to the dispute in respect of particular dispute and not on any members.   The jurisdiction of the court is broadly of 2 types: 1. Contentious JurisdictionIt is one of the fundamental principles of International Law that no state can without its consent be compelled to submit its disputes with other states either to mediation or to an arbitration or to any kind of pacific settlement. Consent is the basis of jurisdiction of an International Tribunal. The Court cannot proceed to adjudicate a dispute merely because one state files a case against another, the other party too, the defendant states, has to agree that the Court should try the case. When the Court decides the case on the basis of the consent of disputant parties, the jurisdiction of the Court is called “contentious jurisdiction”. If the parties to a treaty or convention stipulate in that document that dispute under it shall be referred to the Court, the jurisdiction of the Court is established. In such cases the consent of the parties to the jurisdiction of the Court is given in advance. In voluntary jurisdiction the consent is given before the occurrence of the dispute. 2. Advisory JurisdictionAccording to Article 65 of the Statute the Court may give an advisory opinion on any legal question to anybody which has been authorized in accordance with the Charter of United Nations or in accordance with the Statute. The Charter under Article 96 Para 1 lays down that the Security Council and General Assembly may request to the Court to give an advisory opinion on any legal questions. In addition to them, other organs of the United Nations and specialized agency may also request for an advisory opinion. ICJ has discretionary power to give advisory opinion. The opinion of ICJ is also not binding on the organs seeking the opinion.   All the members of the United Nations are required to comply with the decision of the Court in accordance with Article 94 Para1 of the Charter. If any party to a case before the Court fails to perform its obligations under a judgement of the Court, the other party may bring the matter before the Security Council in accordance with Article 94 para 2 of the Charter. The Security Council is empowered by the Charter to make recommendation or decide upon measures to be taken to give effect to the judgement. In case the Security Council decides upon measures to be taken to give effect to the judgement of the Court, it has again a choice between two kinds of actions i.e measures which may be taken either under Article 41 or 42 of the Charter.
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  • Jun 04, 2019
    The Indian judiciary adopted the technique of public interest litigation for the cause of environmental protection in many cases. The Supreme Court & High Courts shaded the inhibitions against refusing strangers to present the petitions on behalf of poor and ignorant individuals. The basic ideology behind adopting PIL is that access to justice ought not to be denied to the needy for the lack of knowledge or finances. In PIL a public spirited individual or organization can maintain petition on behalf of poor & ignorant individuals.In the area of environmental protection, PIL has proved to be an effective tool. In Rural Litigation and Entitlement Kendra vs. State of U.P.the Supreme Court prohibited continuance of mining operations terming it to be adversely affecting the environment.In Indian Council for Enviro-Legal Action vs. Union of India, the Supreme Court cautioned the industries discharging inherently dangerous Oleum and H acid. The court held that such type of pollution infringes right to wholesome environment and ultimately right to life.In another case M.C. Mehta vs. Union of Indiathe Supreme Court held that air pollution in Delhi caused by vehicular emissions violates right to life under Art. 21 and directed all commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding health of the people.In Church of God (Full Gospel )in India vs. KKR Majestic Colony Welfare Association the Supreme Court observed that noise pollution amounts to violation of Art.21 of the Constitution.In landmark case Vellore Citizens' Welfare Forum vs. Union of India the Supreme Court allowed standing to a public spirited social organization for protecting the health of residents of Vellore. In this case the tanneries situated around river Palar in Vellore (T.N.) were found discharging toxic chemicals in the river, thereby jeopardising the health of the residents. The Court asked the tanneries to close their business. ConclusionIn this manner, our judiciary has used the tool of PIL quite effectively for the cause of environmental protection. But the judiciary has shown wisdom in denying false petitions seeking to advance private interests through PIL as evident from the decision of the Supreme Court in Subhash Kumar vs. State of Bihar. Hence, PIL has proved to be a great weapon in the hands of higher courts for protection of environment & our judiciary has certainly utilized this weapon of PIL in best possible manner.
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  • Jun 04, 2019
    Reasons for Delegated Legislation in modern times, delegated legislation has become imperative and inevitable due to the following reasons:- Want of timeThe Parliament is so much occupied with matters concerning foreign policy and other political issues that it has no time to enact social legislation in all its details. Therefore, the Parliament frames only the broad rules and principles, and the departments are left to make rules and to fill in details. Technicality of the mattersWith the progress of the society things have become more complicated and technical. All the legislators may not know them fully and, hence, they cannot make any useful discussion on it. Therefore, after framing of the general policy by the Parliament the government departmental or other bodies who know its technicalities are given the power to lay down the details. EmergencyDuring the times of emergency quick and decisive action is very necessary, and at the same time, it is to be kept confidential. The Parliament is not at all fit to serve this end. Therefore, the executive is delegated the power to make rules to deal with situations. In England, the Defense of Realm Act, 1914-15, the Emergency Powers Act,1920 and the Emergency Powers (Defense) Act, 1939-40 are examples of such delegation during the First and Second World Wars. FlexibilityTo adapt the law according to future contingencies or any other adjustments which are to be made in the Act in future can be done efficiently and effectively only when a small body is given the powers to do so. Otherwise amending acts will become necessary and that would cause wastage of time and money. Therefore, delegation to the departments becomes necessary. Local mattersThere are local matters which concern only a particular locality .or. particular group of profession. Any legislation on these matters needs consultation with the people of that particular locality group or profession. Thus regarding such legislation the department are given powers to make charges and sales. In consultation department with the person acquainted with and interested in it. ExperimentationSome Acts of Parliament provide for their coming into operation in different localities on different dates according to their suitability, and as a matter of experiment. For this purpose the ministers are given power to make orders about the date of its application.   Rules of Delegated LegislationThe delegating statute may say, for instance, that the authority may make rules as appear to be necessary or expedient for giving effect to the purposes of the Act. While such a provision gives a wide latitude to the rule-making authority, the discretion conferred is not unreviewable. It is for the court to determine the limits of the power. Howsoever subjective the power may be, it can never be regarded limitless. The rule making authority cannot be regarded as the sole arbiter of the extent of its power and the way it exercises the same. The power is conferred for promoting the policy and purposes of the Act and the power cannot be used for any extraneous or irrelevant purpose. The question for the court to consider is whether there is any nexus between the delegated legislation in question and the purposes underlying the parent Act. It is for the court to determine the limits of the power. The power is to be exercised for promoting the policy and purposes of the Act and, therefore, the power cannot be used for an irrelevant purpose as mentioned above.[1] The rules are published in the Gazette of India. Publication of the rules is regarded an essential requirement for their validity in India. In some statutes there may not be any stipulation as to publication of the rules made under them.[2] In such a case, publication of the rules in the Official Gazette appears to be necessary. In State of Maharashtra v George,the Supreme Court ruled that in a situation where there was no statutory requirement for publication of rules, it was necessary to publish the rules in the usual form, in such media as was generally adopted to notify to all persons concerned the making of the rules. As publication of the rules in the Gazette of India was the usual method of bringing a rule to the notice of the concerned persons, such publication was held to be sufficient in this case.   [1]Jayantilal v Union of India, AIR 1970 [2]Industrial Finance Corporation Act, 1948
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  • Jun 01, 2019
    Witnesses play a crucial part in international criminal proceedings. Unlike the Nüremberg trials which relied primarily on documentary evidence, modern day international criminal trials rely on witnesses to provide the majority of the information. A testimony not only enables the judges to render a fair judgement, it also helps the people of the region and the international community to learn the truth about the crimes committed and to deter persons from committing these crimes again. By testifying, witnesses make a necessary and valuable contribution to the restoration of justice and reconciliation in the region. In addition to that, testifying at the Tribunal also provides an opportunity for victims to describe what happened to them.   When it comes to testifying, one must differentiate between two segments: the “investigation stage” and the “trial stage”. During the former, investigators will speak to numerous witnesses in an attempt to establish what happened. However, not all individuals interviewed during the preparation of a case will be called to testify in the courtroom. The prosecution and the defence will determine the most appropriate witnesses to appear before the judges.   There are several types of witnesses who can testify before the Court.  Fact witnesses have knowledge and testify about what happened. They can be crimes-based witnesses when they have suffered harm and testify as witnesses about what happened to them. Some of these witnesses can also hold the status ofparticipating victims before the Court; they are called dual-status witnesses.  Insider witnesses have a direct connection with the accused. Expert witnesses testify about matters within the field of their expertise, for example, ballistic or forensic experts. Overview witnesses help establish facts about the context in which a conflict occurred, and can include, for example, professors or NGO representatives. These witnesses can be called, or asked to give testimony, by the Office of the Prosecutor, the Defence, the Legal Representative of Victims, or the Judges themselves. Oral testimony The witness is physically present in court and will tell the court what he or she saw or heard, or what he or she knows of the accused or other events upon which he or she is being questioned. In exceptional circumstances, if for example a witness cannot travel, he or she may give evidence away from the seat of the Tribunal by way of live video-conference link. DepositionIn exceptional circumstances, a witness may be asked by the court to give evidence by way of deposition. A deposition can either be taken in The Hague or elsewhere by a representative of the court in the presence of the prosecution and the defence. The party who has not requested the deposition shall have the right to cross-examine the person whose deposition is being taken. The proceedings will be recorded, at least on audio tape. Evidence in the form of a written declarationThe court may, in certain circumstances, admit evidence in the form of a written declaration. An official authorised to witness such a declaration shall be present. The court may nevertheless decide whether the witness is required to appear in court for further questioning. The side that brought the witness (either the prosecution or the defence) begins by asking the witness questions. This is referred to as “direct examination”. When the prosecution or defence is finished with the direct examination, the other side is allowed to question the witness. This is called the “cross-examination”. Afterwards, the side that brought the witness to the stand may ask him or her some more questions related to issues raised in the cross-examination. This is known as “re-direct examination”. According to the Rules of Procedure and Evidence, the judges may also ask questions at any time during the witness testimony.   The Court has a number of protective measures that can be granted to witnesses, victims who appear before the Court and other persons at risk on account of testimony given by a witness. The Court's protection system is based on best practices which are aimed at concealing the witness's interaction with the Court from their community and from the public in general.   Protective measures where witnesses reside aim to limit the witness's exposure to threats or provide an appropriate response to an identified threat. Measures must be proportional to the risk. When there are multiple suitable and available options for protective measures, the Court will choose those that are the least intrusive on the witness's well-being. These measures could include local protection measures, an assisted move or various security arrangements aimed at addressing the identified threat. Witness relocation is only used as a last resort, due to the immense burden this puts on the witnesses and their families.   One particular form of support for witnesses who come to the ICC to testify in Court is the process of "Courtroom familiarization", during which, the Registry staff members show them the Courtroom in advance, before the hearing starts, to allow them to sit in the witness stand for the first time and become familiar with the Courtroom. The staff members explain where the Defence, the Prosecution, Legal Representatives of Victims (where applicable) and Judges will sit during the hearing. They also test out the computer screens and microphones together with the witness, and answer any practical questions the witness might have. They do not discuss with them any element of their testimonies. The Registry will also see if any particular measures would be needed to ensure that the witness can testify in a secure manner and also takes into consideration their privacy, dignity and well-being.
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