LEX ASPIRANTS

Constitutional morality is the adherence to the principles of constitutional values. it changes from time to time. Some of the constitutional values are democracy, secularism, equality of status and opportunities, liberty of speech and expression, liberty of belief, and equal protection. Therefore constitutional morality is rooted in the Constitution itself. Constitutional moralities are developing in accordance with the changes in society. Society does not remain static and changes with due process of time and requires the law and judicial developments to keep going with them. The judiciary upheld constitutional morality through various decisions. They are: In the case, NALSA  v. Union of India the apex court recognized the 3rd gender community. ie, transgender persons. The said case makes a very great impact on society. prior to the decisions those people did not get any acceptance in the society. Now they have been given recognition. today in every application like an applicatio...

Until the 1960's abortion was illegal in India and unless the procedure was done with good faith the mother would be punished under section 312 of the Indian Penal Code. It was in the middle of the 1960's government set up a committee and thereby in 1971, enacted the Medical Termination of Pregnancy Act. The Act provides for the termination of certain pregnancies through medical practitioners. Thus legalized abortion. Initially, the law permit abortion up to 20 weeks, and in 2021 it increases the period from 20 weeks to 24 weeks for special categories of women like rape survivors, minors, mental illness, and physically disabled. In a historical judgment, the apex court declared that prohibiting single women with pregnancies up to 24 weeks from accessing abortion while allowing married women with the same term of pregnancy amounts to discrimination. The constitution guarantees a dignified life, the right to privacy, and the right to reproductive choice / bodily autonomy to the c...

India being a diverse nation with multiple religions and religious laws, have different personal laws for different religious communities. The marriage, Divorce, inheritance, adoption, and succession of people in various communities are regulated by their respective personal laws. Mostly it is based on their religious texts and customs.  The idea behind the Uniform civil code is to have a common set of laws governing personal matters such as marriage, Divorce, inheritance, adoption, and succession for all citizens irrespective of their religion. The debate on the Uniform civil code goes back to the constituent assembly debates. In fact, one could assert that the legality of the Uniform civil code is rooted in the Constitution itself.  Article 44  of the constitution (directive principles of state policy )mandates that the state shall take the endeavor for the implementation of the Uniform civil code for the citizens. The objective of  DPSP is to act as a guideline to...

Encounter Killings violate the fundamental rights of criminals as every person has a right to life and liberty which can only be deprived following the procedure established by law under Article 21 of the Constitution. This right extends to all persons without exception, including a fair investigation and trial even if a person is accused of a heinous crime thereby safeguarding the equality before law under Article 14. There is a procedure prescribed by the law for criminal investigation which is embedded in the Constitution under Article 21 as the Right to Life and Personal Liberty. It is fundamental, non-derogable, and available to every person. Even the State cannot violate that right. Hence, it is the responsibility of the police, being the officers of the State, to follow the Constitutional principles and uphold the Right to Life of every individual whether an innocent one or a criminal.   In Gian Kaur vs The State Of Punjab held, the right to life does not include the ri...

The part III of the constitution enshrines the backbone of our democratic system which is the fundamental rights. Article 13 establishes the supremacy of fundamental rights by declaring that all laws which are inconsistent with or against fundamental rights shall be void to the extent of the inconsistency.   A law must incorporate the principles of natural justice and if a law deprives a person of his fundamental rights without complying with the rules of natural Justice could not be held as valid and it lacks reasonableness which is the core of the fundamental rights.    Article 21 of the constitution says that: “No person shall be deprived of his life or personal liberty except according to the procedure establish by law”. Also, personal liberty is one of the most important of all fundamental rights. The restriction upon freedoms can be only imposed if they are reasonable. Hence a restriction to be constitutionally valid must be satisfying the following 2 tests: 1...

Jai Prakash Tiwari vs State of Madhya Pradesh   on 4 August 2022  CJI NV Ramana, Justices Krishna Murari and Hima Kohli observed that while examining an accused under Section 313 CrPC, all the adverse evidences has to put in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation. "If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligible explanation." , the court observed. The court clarified such an omission does not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has been caused to him. The court was considering an appeal filed by accused who was concurrently convicted under Section 307 of the Indian Penal Code, 1860 ('IPC') and Sections 25 and 27 of the Arms Act, 1959. The prosecution case against the accused was that he and co-accused went to the comp...

The presentation of a plaint marks the institution of a civil suit.  The CPC, provides for the remedy of rejection of the plaint under Order VII Rule 11, on certain specifically stated grounds.  Order VII Rule 11 provides: "Court shall reject a plaint: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provision of Rule 9. If the court, for reasons to be recorded, is satisfied that the p...

The purpose of the capital punishment is to develop fear in the mind of people and it operates as ominous warning to the public. The so called punishment is given to those offenders who are incurable, and thereby prevents repetition of crime as it is in the interest of the society. The legislative history with regard to criminal punishment shows that there has been significant change in thinking and approach. Prior to 1955 , normal rule was to impose sentence of death on a person convicted for murder and if lesser sentence was to be imposed, the court was required to record the reason.   In 1955 , court is free to award either death or life imprisonment and life imprisonment was the rule and death sentence is the exception .   In 1973 – judgment shall state the reasons for giving life imprisonment and special reasons for death penalty. In 1980 the landmark decision – bacchan Singh v. state of Punjab. – Court held that death penalty is constitutionally valid and not ...

The Supreme Court on Wednesday to keep court proceedings under section 124A of IPC in abeyance has the effect of temporarily erasing the colonial provision from the statute book while the union reexamines it. It was argued in court that nearly 13000 people were already in jail under the sedition provision. National crime records bureau (NCRB) report says 356 cases of sedition under section 124A of IPC had been registered and 548 people arrested between 2015 &2020 with just 6 convictions. Section 124 A of IPC, which criminalizes any speech, writing, or representation that excites disaffection against the government. The Indian experiences shows that whenever the court dilutes the harshness of penal provisions in a balancing approach, instead of striking down the entire provision, the instrumentalities of the state (police, prosecution, and court) continue to overuse or misuse the provision. The judgment of the top court in Kedar Nath Singh  V. State of Bihar (AIR 1962 SC...

  The Supreme Court has reiterated the time limit for filing of the written statement under Order VIII Rule 1 of Code of Civil Procedure is not mandatory (if it is not a commercial suit) in recent case Bharat Kalra vs Raj Kishan Chabra. In this case, a suit for injunction was filed by the plaintiff. The High Court upheld the Trial court order refusing to condone the delay of 193 days in filing of the written statement on the ground that there was "no plausible explanation and coherent reason" explaining the delay in filing the written statement. In appeal filed by the defendant, the Apex Court noted that the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Act, 2015. "Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as ' Kailash V. Nankhu & Ors.' reported in (2005) 4 SCC 480. In view of the aforesai...

Flying a kite is something which most of us love to do ,especially by kids. But you need to be careful, negligent kite flying may lead to criminal prosecution. We all do kite flying in our childhood, it was very common right?  but you won't believe that it is punishable as per the section 11 of the Indian aircraft Act, 1934. According to the above Act, you need to get a permit or license  to fly an aircraft. As per the definition of aircraft : it includes any machine that can derive support in the atmosphere from reaction of the air that include balloons,airships , kites , gliders and flying machines. Hence negligent flying of a kite is punishable by imprisonment of 2 years or fine up to 10 lakh rupees. Interestingly before 2008 the said punishment was 6 month or fine up to 1000rs. Eventhough the punishment has been increased the irrational inclusion of kite along with the definition clause of aircraft has not been amended. So presumably, if a person harms someone flying kite...

A Plaint is a legal document that contains the content of any civil suit which shows the Plaintiff’s claim after filing suit. The plaint is the first step of the Plaintiff in the form of a legal document for the commencement of suit and it shows what a Plaintiff wants from that suit. Through the help of plaint, the plaintiff narrates or describes the cause of action and related information which is considered to be essential from the viewpoint of the suit. In the case of the plaint, the cause of action consists of two divisions, first is the legal theory (the factual situation based on which the plaintiff claims to have suffered) and the second is the legal remedy that the plaintiff seeks from the court.  A plaint is considered an important concept because it is the foremost and initial stage to initiate any lawsuit and helps to find a civil court of appropriate jurisdiction. Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the presentation of a p...

The concept of secularism mentioned in the preamble of the Constitution considers secularism as neither anti God nor pro god, it treats alike the devout, the antagonistic and the atheist. Worshipping God should be according to the dictates of one's own conscience.  In Aruna Roy v. Union of India ,  court quoted gandhiji who said "The real meaning of secularism is sarva dharma sambhav meaning equal treatment and respect for all religions. But we have misunderstood the meaning of secularism as sarva dharma abhav meaning negation of all religions". On 2 December 1948, Dr Ambedkar acknowledged that religious conceptions in India “cover every aspect of life, from birth to death”. However, he added, “There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.” Essentially religious’ ...

The offence of dowry death has been inserted in the IPC as section 304B by the dowry prohibition (Amendment) Act , 1986 which intent to curb the social evil of bride burning and dowry demand. The offence is in a way fiction of law, whereby the offence of dowry death is deemed to have been committed if certain set of conditions are satisfied in a given case. These conditions are four in number, namely; 1. Death of a woman caused by burns, bodily injury, otherwise than under normal circumstances. 2. Death occurred within 7 years of marriage 3. Soon before her death, the woman was subjected to cruelty or harassment by her husband or any relative of her husband, 4. Such cruelty or harassment has been for, or in connection with, any demand for dowry. The Government, from time to time, has come up with legislations to protect women and to punish those committing atrocities on them, including Section 174 Cr.PC was also amended to secure Post Mortem in case of suicide or death of a woman withi...