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INDIAN JUDICIARY

In 1927 seems to be true as Chief justice of one country is forcibly removed from chair and apex Court of another has duly exercised its power on several occasions to declare the decisions of other two pillars of government as ultra vires, dictator of previous roared “Constitution is a 12 page book which can be torn anytime” whereas Supreme Court of latter sent a former dictator to imprisonment for suspending the constitution that is why the former is on 12th position in the “Failed States Index” of Foreign Policy Magazine whereas the latter is Emerging Superpower.

This is the tale of two countries namely India and Pakistan, both of them gained independence from slavery of centuries and with wounds of partition, communal hatred, riots and poverty but judiciary of latter thereby upholding the faith of people in the values of democracy declared the dissolution of even a provincial assembly as unconstitutional on the other hand the former had a history of every elected government being toppled by the dictators before completing its term.

The reason for all this is that one has the longest constitution of the world and the constitution of the other has been changed entirely twice since independence which is the reason that the latter is the largest democracy of world and the former had seen Marshal Law in 35 out of 60 years of independence i.e. majority of time as a nation it has been ruled by dictators.

Our constitution provides clear separation of powers of all the three wings of government namely legislature, executive and judiciary with all having separate domains and measures of checks and counter checks on each other. Our national leaders of freedom struggle realized that “No free government can survive that is not based on the supremacy of law” as in scripted on the Justice department building in Washington states so they felt the need of an impartial, sovereign and responsible institution to which the powers to administer justice and the function to uphold the supremacy of law could be delegated and which would be vigilant to other organs encroaching on citizens’ rights and subverting the Constitution.

This resulted in founding of The Supreme Court and a judiciary which is completely separated from legislature and executive in exercising its judicial functions and thereby deviating from the tradition of U.K. as our entire parliamentary system is taken from U.K. where the Supreme Court is the House Of Lords and is a part of legislature.

Comparing this setup with our setup, our Supreme Court is not a part of legislature so it can not only preside over dispute between the Union and State but can also review the executive as well as legislative action of arbitrariness and thereby can protect the voice of minority section of society rising against the atrocities committed on them by the government and thereby uphold the principles of natural justice that one can’t be a judge in its own cause.

To realize this goal of theirs the framers of the Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and the custodian of the rights of the citizens and Indian Constitution, which executes the said function through the process of judicial review over the acts of the legislature and the executive, which gives the mandate to the judiciary to interpret the laws but it should not be misunderstood as the Constitution does not contemplate a Super-organ nor confers an over-riding authority on any one organ.

No organ has any power to superintend over the exercise of powers and functions of another, unless the Constitution strictly so mandates. It is obvious that all organs of the State should act only according to the constitutional mandate and should not be astute to find any undisclosed source of power or authority to expand its own jurisdiction, which will give rise to avoidable conflicts and affect the harmonious functioning of the different organs of the State.

Judiciary: Savior of The Rights of Destitute and Commoner Supreme Above All

“The supreme court is the living voice of the constitution – that is of the will of people expressed in the fundamental laws they have enacted. It is the conscience of the people. it is guarantee of the minority who when threatened by the impatient vehemence of the majority, can appeal to this permanent law finding the interpreter and enforcer there of in a court set high above the assault of the factions.”

– As quoted by James Bryce, the then British ambassador to US in the American commonwealth in 1888 was understood to the deepest of its meaning by the framers of our Constitution as they assigned the judiciary in India to play a significant role of safeguarding the supremacy of the Constitution by interpreting and applying the provisions of the Constitution and acts as its guardian by keeping all authorities i.e. legislature, executive, administration, judicial and quasi judicial authorities within bounds of Constitutional framework and thereby maintaining the rule of law in the country and assures that the government runs according to law.

“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty or property of particular named person because the legislature thinks them guilty of conduct which deserves punishment. The authors of the Constitution intended to safeguard the people of this country from punishment without trial by duly constituted courts.”

– This was quoted by Felix Frankfurter, US Supreme Court Justice in US v. Lovett[2] in 1945 and to bring this reality they entitled the judiciary to scrutinize under Article 13 of the Constitution any governmental action in order to assess whether or not it conforms to the Constitution and the valid laws made there under.

It has power to protect people’s fundamental rights from any undue encroachment by any organ of the government. The Supreme Court acts as the guardian and protector of the fundamental rights of the people by invoking its power of writ jurisdiction conferred on it under Article 32 of the Constitution and thereby acts as sentinel on qui vive to protect the fundamental rights as was held by the Supreme Court in Pathumma v. State Of Kerla.

As in the words of Justice Untwalia in Union Of India v. Sankalchand Himatlal Sheth[4]: “Judiciary is a watching tower above all the big structure of the other limbs of the state from which it keeps a watch like a sentinel on the functions of the other limbs of the state as to whether they are working in accordance with the law and the Constitution where the Constitution being supreme.” [4]

It has also to dispense justice between the state and the citizens i.e. between seat of power and the commoner where the former is armed with all the privileges and power and support of majority of countrymen and the latter is bare hands belonging to the handful of people whose rights are infringed by the governmental action but with firm belief and faith in the principles of democracy in their heart and mind.

As it was quoted by Felix Frankfurter, US Supreme Court Justice in Earl Katcher & Warren: A Political Biography, 1967:

“The Supreme Court authority possessed neither of the purse nor the sword but ultimately rest on sustained public confidence in its moral sanctions. Such a feeling must be nourished by the court’s complete detachment, infact and appearance, from political entanglements and by abstention from injecting itself into the clash of political forces and political settlements.”

So in order to realize this and to enable judiciary to discharge their functions impartially without fear or favor, our forefathers armed the constitution with certain provisions not only to safeguard judicial independence but also to ensure the judicial accountability from lower to topmost tier. The judges of these courts are appointed by the central executive in accordance with the advice of chief justice himself and this mechanism for maintaining this independence was ensured after the landmark judgment in Supreme Court Advocate’s On Record v. Union Of India[5] case. Once appointed, the judges hold office till they reach the age of superannuation as fixed by the Constitution under Article 124(2) because of which their tenure is independent of the will of the executive and further there is a special and complex procedure that has been laid down in Article 124(4) of the Constitution for removing the judges on the grounds of incapacity or misbehavior which ensures that their power is checked and they do not function in an arbitrary manner.[5]

There is one more significant role that the judiciary has to play in a federation i.e. to act as the balance wheel of federalism by deciding the controversies between the constituent states inter se, as well as between the centre and state as this power is conferred to judiciary under Article 131 of the Constitution under the heading of original jurisdiction of the Supreme Court.

Further adding weapons to its armoury the framers of our Constitution has provided the Supreme Court with jurisdiction to punish contempt of its authority under Article 129 of the Constitution. Such a power is very necessary to prevent interference with the course of justice and in maintaining the authority of law as administered in the court and to ensure the confidence of people in the integrity of the judges as the same was observed by the court in Om Prakash Jaiswal v. D.K. Mittal[6] that: “Any act or omission which undermines the dignity of the court is therefore viewed with concern by the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.”[6]

It is not so that only an individual can be held liable for contempt of court but executive branch of government also bears a grave responsibility for upholding and obeying judicial orders as the same was ruled by the apex court in Md. Aslam v. Union Of India[7] and Vineet Kumar Mathur v. Union Of India[8] to name few but this responsibility is many times is not fulfilled in many cases and in many cases government officials are found guilty by the Supreme Court of contempt the most famous of which is Indira Sawhney v. Union Of India[9] where the Chief Secretary of Kerela was guilty of contempt of court. [9][8][7]

In this regard parliament has the power to enact laws but such laws are limited only to prescribe the procedure to be followed and the maximum duration of the punishment and can make provisions for appeal but parliament has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this court by the Constitution. The two rulings namely Delhi Judicial Services Association, Tis Hazari Court v. State of Gujrat[10] and Supreme Court Bar Association v. Union Of India[11] in this respect are significant where in the former the Supreme Court held that parliament’s power to legislate in relation to law of contempt is limited and in the latter Supreme Court ruled that the Constitutional vested right under Article 129 can’t be either abrogated, abridged or cut down by any legislation such as Contempt of Court Act or C.P.C. [11][10]

The above mentioned provisions of the Constitution is the place from where judiciary attributes its supremacy over the other 2 pillars of Indian democracy namely the legislature and executive and any act done by judiciary for upholding the principles of democracy can’t be labeled as encroachment of judiciary over the domain of legislature and executive as many times in recent past top notch of legislature and executive had given statement in open against judiciary of not to cross its limits which clearly attracts contempt of court proceeding against themselves.

Talking about the recent major face off between the judiciary on one side and legislature and executive on the other side are on the issues of directions of Supreme Court to conduct floor test in Jharkhand Assembly, summons to Lok Sabha Speaker in expulsions of M.P.’s case and considering the constitutionality of dissolution of Bihar Assembly.

Regarding the direction of Supreme Court to conduct floor test in Jharkhand Assembly, it is no where in violation of Article 212 of Constitution because although the courts can’t interfere with the working of a house on grounds of irregularity of procedure but they may scrutinize the proceeding of house on grounds of illegality or unconstitutionality. The same was the case here as the courts didn’t interfered in the procedure of floor test but it only directed to conduct a floor test because formation of JMM government was unconstitutional as it was in minority and was formed without the floor test. Similar verdict of Supreme Court was there to conduct floor test in case of Jagdambika Pal v. State of U.P.[12]. It is all wrong to say that Constitution prohibits judiciary to look into matters of violation of Constitution when it is concerned with legislative act instead it is vice versa as in Keshav Singh v. Speaker, Legislative Assembly[13] the court had interpreted the Constitution as: “Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law, the validity of any proceeding inside the legislative chamber, if his case is that the said proceeding suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law.” [13][12]

Coming to the topic of summon to Speaker of Lok Sabha and his subsequent remarks on that clearly invites contempt of court proceedings against him as he had laminated the Supreme Court to be overstepping its limits which was not the case of overstepping of limits, but is a jurisdiction conferred to it by Constitution as laid down in: Delhi Electric Supply Undertaking v. Basanti Devi[14] where it was ruled that under Article 142(1) that Supreme Court in exercise of its jurisdiction is entitled to pass any decree, or make any order, as is necessary for doing complete justice in any cause of matter pending before it and it was under same provision it was deemed fit by Supreme Court to summon the Speaker and ask him that under which provision of law the legislature has power to expel its members elected by people when it doesn’t have power to appoint them as representative of people. [14]

It must also be brought in light that it was not only under Article 142(1) but it was also under an express provision of Constitution for this purpose i.e. under Article 142(2) of Constitution Supreme Court have all and every power to make any order for securing attendance of any person and Speaker should be reminded of Article 361 of Constitution which protect only President and Governor from being answerable to any court in course of exercise and performance of powers and duties of his office or for any act done and the post of Speaker Of Lok Sabha is not in the ambit of this provision of not being answerable to any court of law and it should also be reminded to him that his denial to summons of court is in ambit of guidelines laid down by apex court in Hira Lal Dixit v. State of U.P.[15] in which it was held that any willful disobedience or non compliance of court order is considered as contempt of court as his act hampers administration of justice and erodes faith of people from the temple of justice and brings administration of justice into deep disrespect.[15]

Lastly dissolution of Bihar Assembly which was dissolved on the recommendation of Governor of Bihar and on advice of Union cabinet of ministers by The President was held unconstitutional is also not violation of Article 361 of Constitution as the court hadn’t seek any answer either from The President and The Governor of Bihar but from this it shouldn’t be construed from this provision that this prohibits the court to initiate any proceedings against the Government Of India as the same Article 361 further states that nothing in this clause shall be implied as restricting right of any person to bring appropriate proceeding against Government Of India. Further in this matter it should be taken that in the cases of Rao Birinder Singh v. Union Of India[16] and Madhav Rao Scindia v. Union Of India[17] and other such cases court held that appropriate proceeding can be brought against Government Of India and only President personally is not amenable to a court process with reference to act in question yet when question arises that whether in a given situation the President has acted rightly or wrongly it may be decided only against Government Of India without questioning president’s conduct.[17][16]

Conclusion

Finally it should be kept in mind that such Constitutional blunder as that of dissolution of Bihar Assembly case should be avoided in which the President’s office was indirectly brought under criticism by bringing an amendment in Article 74(1) of Constitution and thereby amending it as there shall be Supreme Court with Chief Justice at its head to aid and advice President who shall, in exercise of his functions, act in accordance with such advice so by this all his acts will be in ambit and accordance with laws of country where Constitution being supreme and there will be no any such Constitutional blunder as that of indirect criticism of President’s office.

Further the cases like that of P.N. Duda v. P. Shivshanknkear[18] should be dealt with an iron hand and no one should be allowed to walk away freely in any way or other despite criticism of courts only on the grounds that he or she belongs to power corridors of country as we don’t further want constitutional blunder as that of Justice Beg and Justice A.N. Ray nor brain drain from judiciary as that of protest resignation in the form of Justice Khanna.[18]

Live-In Relationships IN INDIA

In a much awaited observation on live-in relationships, the Supreme Court opined that a man and a woman living together without marriage cannot be construed as an offence. “When two people want to live together, what is the offence? Does it amount to an offence?” a special three-Judge Bench constituting the Chief Justice of India, K.G. Balakrishnan and Justices Deepak Verma and B.S. Chauhan observed. The Supreme Court said that there was no law prohibiting live-in relationships or pre-marital sex. “Living together is a right to live” the Supreme Court said, apparently referring to Article 21 of the Constitution of India which guarantees right to life and personal liberty as a fundamental right. The Supreme Court made the observation while reserving its judgment on a Special Leave Petition filed by a noted South Indian actress, Khushboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005[1].

Meaning
Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married.

Today, cohabitation is a common pattern among people in the Western world. People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.

Position Of Live-In Relationships Abroad
With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live-in couples around the world. While heterosexual couples who are in a live-in relationship are called “cohabitant”, same sex couples are legally defined as “civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.
• Scotland
Family Law (Scotland) Act, 2006, for the first time identified, and in the process by default, legalized live-in relationships of over 150000 cohabiting couples in the country. Section 25(2) of the Act states that a court of law can consider a person as a cohabitants of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.

• France
Live-in relationships in France are governed by the Civil Solidarity Pact of ‘pacte civil de solidarite’ or PaCS, passed by the French National Assembly in October 1999. Cohabitation is defined as a “de facto stable and continuous relationship” between two persons of different sexes or of the same sex living together as couple. The pact defines the relationship as a contract, and the couples involved as “contractants”. The contract binds “two adults of different sexes or of the same sex, in order to organize their common life.” For a valid contract to exist, the contractants “may not be bound” by another pact, “by marriage, sibling or lineage.”

• United Kingdom
Live-in relationships in the United Kingdom are largely covered by the Civil Partnership Act, 2004. Though a man and woman living together in a stable sexual relationship are often referred to as “common law spouses”, the expression is not wholly correct in law in England and Wales. The Government feels that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other’s property on breakdown of relationship. If a cohabiting couple separates, the Courts have no power to override the strict legal ownership of property and divide it as they may do on divorce. Unmarried partners have no automatic inheritance over their partner’s assets on death. Cohabiting couples are treated as unconnected individuals for taxation purposes.

• Canada
Living together in Canada is legally recognised as “common law marriage”. In many cases common law couples have the same rights as married couples under the federal law of the country. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for atleast 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the persons has custody and control of the child and the child is wholly dependent on that person for support.

• Ireland
Though living together is legally recognised in Ireland, news reports says the public is up in arms against a new legislation to introduce legal rights for “separated” live-in couples to demand maintenance or share their property with their dependent partners. The scheme will apply to both opposite sexs and same sex unmarried couples who have been living together for three years, or two years in the case of a cohabiting couple with children. The Government, with this legislation, intends to provide legal and financial protection for the vulnerable and financially dependent cohabitants in the event of death or the break up of a relationship.

• Australia
The Family Law Act of Australia states that a “de facto relationship” can exist between two people of different or of the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a defacto relationship with someone else.

• United States
Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law, subject to certain requirements. The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the “prenuptial agreements”. The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents.

Position Of Live-In Relationships In India
In India, cohabitation had been a taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values. Female live-in partners have economic rights under Protections of Women and Domestic Violence Act, 2005.

The Maharashtra Government in October 2008 approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable period’, should get the status of a wife. Whether a period is a ‘reasonable period’ or not is determined by the facts and circumstances of each case.

The National Commission for Women recommended to the Ministry of Women and Child Development in 30th June, 2008 that the definition of ‘wife’ as described in section 125 of Cr.P.C., must include women involved in a live-in relationship. The aim of the recommendation was to harmonise the provisions of law dealing with protection of women from domestic violence and also to put a live-in couple’s relationship at par with that of a legally married couple. There was a Committee set up by the Supreme Court for this purpose, called the Justice Malimath Committee, which observed that “if a man and a woman are living together as husband and wife for a reasonable long period, the man shall be deemed to have married the woman.”

The Malimath Committee had also suggested that the word ‘wife’ under Cr.P.C. be amended to include a ‘woman living with the man like his wife’ so that even a woman having a live-in relationship with a man would also be entitled to alimony. On 16.09.2009, the Supreme Court in a case[2] observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C.. A woman in a live-in relationship may also claim maintenance under section 125 Cr.P.C..

In a case[3] the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has the right to live with a man even without getting married, if both so wish”. The Supreme Court observed that a man and woman, if involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be considered as legitimate.

Pros And Cons Of Live-In Relationships
The Supreme Court’s controversial observation okaying live-in relationships and pre-marital sex has generated fierce debate across the country. The historic observation has made to upset many orthodox groups fearing that it would destroy the sanctity of marriage. A fragment of the society including noted social activists and prominent dignitaries have stepped ahead and shared their precious views on this.

“We hope the Government shall take proper steps to safeguard Indian women’s rights and dignity and save the society from chaos”, said Maa Ghara Foundation Trustee, Rutuparna Mohanty. “It will start unraveling the fabric of Indian family life”, she said. She also viewed that it would give rise to child pregnancy and has far reaching ramifications, adding despite its aim to restrict multiple partners; it would have an adverse impact on the youths and result in the spread of HIV/AIDS. “Children born out of living together relationships would not be properly brought up,” Mohanty rued.

Social scientists have already identified grave social problems like young age pregnancy of adolescent girls, drug abuse, violence and juvenile delinquencies and in the wake of the controversial ruling, the erstwhile objectionable social behavior gets legalized, many felt. This way, the new generation will be more spoilt. They will prefer live-in relationships to marriages arranged by their parents. There is no guarantee that the male in such relationship will turn out to be a loyal partner in the long run or would not leave the woman with their issues and run away without prior notice.

BJP spokesperson Shaina, expressed that, according to the Hindu Marriage Act, 1955, there is no provision for a second wife among Hindus. Hence, enabling the mistress to get the status of a legally married wife in all matters, including share in property, inheritance, and maintenance is contrary to the Act as well as Hindu customs.”

When the Maharastra Government approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable period’, should get the status of a wife, Shaina said that the Government on one hand has banned dance bars because they are spoiling the social atmosphere, while on the other it is promoting illicit relationships through such amendments. Senior BJP leader Jaywantiben Mehta also opposed the amendment. “It will have adverse effect on our values. The amendment will prove to be a loss for the women instead of gain,” she said.

On the other hand, the section advocating freedom of choosing live-in relationship has hailed it as a pragmatic move. The recent observations, as they see, should be welcomed because it lays down emphasis on individual freedom. It opens frontiers to understand the personality traits of their partner well. Since there are no legal complications in a live-in relationship, walking out of such a relationship would be much easier than walking out of a marriage. Metro life that throws floodgates of challenges also supports this kind of an arrangement. The individuals should be free to live as they think best, subject only to the limitation that their actions and choices should not cause harm to others. It is a very radical attitude. Some people are of the view that women should be given the liberty to choose their life partners and should not be forced into marriages if they are not ready.

As expected, women from various walks of life have welcomed progressive moves on live-in relationships. Jaishree Misra, a New Delhi based author says, “India has changed. If people think youngsters are losing their values, then I would say they are becoming more pragmatic. In today’s times, it is better for them to know what they are getting into”.

This is not the first time live-in relationship is in the ambit of debates and discussions. There has been a long-standing controversy whether a relationship between a man and a woman living together without marriage can be recognized by law. With changing social hypothesis entering the society, in most places, it is legal for unmarried people to live together. Now even in a country like India bounded by innumerable cultural ethics and rites, the law finds legally nothing wrong in live-in relationships.

This, however, cannot be construed that law promotes such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. Such stands, in particular cases of live-in relationship, it appears that, by and large, is based on the assumption that they are not between equals and therefore women must be protected by the courts from the patriarchal power that defines marriage, which covers these relationships too.

Legitimacy Of The Child Born Out Of A Live-In Relationship
The Supreme Court on an earlier occasion, while deciding a case involving the legitimacy of a child born out of wedlock has ruled that if a man and a woman are involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be legitimate. Also, the recent changes introduced in law through the Domestic Violence Act, 2005 gives protection to women involved in such relationships for a ‘reasonable long period’ and promises them the status of wives. A Supreme Court Bench headed by Justice Arijit Pasayat declared that children born out of such a relationship will no more be called illegitimate. “Law inclines in the interest of legitimacy and thumbs down ‘whoreson’ or ‘fruit of adultery’.”

Inheritance Rights
The Supreme Court held that a child born out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property (in the case of an undivided joint Hindu family) and can only claim a share in the parents’ self-acquired property. The Bench set aside a Madras High Court judgment, which held that children born out of live-in relationships were entitled to a share in ancestral property as there was a presumption of marriage in view of the long relationship.

Reiterating an earlier ruling, a Vacation Bench of Justices B.S. Chauhan and Swatanter Kumar said, “In view of the legal fiction contained in Section 16 of the Hindu Marriage Act, 1955 (legitimacy of children of void and voidable marriages), the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.”

A child can only make a claim on the person’s self acquired property, in case the child is illegitimate. It can also be interpreted in a way in which a child could lay a claim on the share of a parents’ ancestral property as they can ask for that parents’ share in such property, as Section 16 permits a share in the parents’ property. Hence, it could be argued that the person is not only entitled to self acquired property but also a share in the ancestral property.

The Apex Court also stated that while the marriage exists, a spouse cannot claim the live-in relationship with some other person and seek inheritance for the children from the property of that other person. The relationship with some other person, while the husband is living is not ‘live-in relationship’ but ‘adultery’.[4] It is further clarified that ‘live in relationship’ is permissible in unmarried heterosexuals (in case, one of the said persons is married, the man may be guilty of adultery and it would amount to an offence under Section 497 of the Indian Penal Code).

Conclusion And Suggestions
Live-in relationships are now very popular in India. The law does not prescribe how we should live; it is ethics and social norms which explain the essence of living in welfare model. The Court itself notices that what law sees as no crime may still be immoral. It has said in a judgement of 2006, notices by the Court now, that two consenting adults engaging in sex is not an offence in law “even though it may be perceived as immoral.”[5] Of course, such protective sanctions may potentially lead to complications that could otherwise be avoided. But simply raising the hammer may not be the best route to taming the bold and the brave. Awareness has to be created in these young minds not just from the point of the emotional and societal pressures that such a relationship may create, but also the fact that it could give rise to various legal hassles on issues like division of property, violence, cases of desertion by death of a partner and handling of custody and other issues when it comes to children resulting from such relationships.

While the Supreme Court’s opinion might not have the undesirable effect on more and more couples preferring live-in relationships rather that opting to wed, it could certainly embolden more young men and women as they would now be convinced that there is no breach of law in the live-in relationship. One can only weigh the pros and cons and take into account the impact of their decision on their family and most importantly on themselves.

Human Rights Violation


Human rights violation have become very common now-a-days. The Newspapers and T.V. tell us that every day and at every moment, somewhat in the world, Human Rights are being violated. Broadly speaking “Human Right” means the right to life, liberty, equality, and the dignity of an individual irrespective of caste, creed or sex. These human rights are natural rights, required to be protected for peaceful existence of a provisions, the violation of these rights is very frequently taking place. The protection and preservation of Human Rights is a great challenge to every country in the world. Cases of violence, murder, torture, rape, child abuse, death due to starvation, death due to dowry, sexual harassment, custodial death have become rampant in the society.

The Human Rights of the people have been protected by “The Protection of Human Rights Act, 1993”. It has been amended by Protection of Human Rights (Amendment Act, 2006. The Act is passed for the constitution of a National Human Rights Commission (NHRC), State Human Rights Commission in States and Human Rights Courts for the better protection of human rights and for matters connected therewith or incidental thereto.

The National Human Rights Commission (NHRC) has been able to touch the tip of iceberg of the problem of Human Rights violation. But NHRC can’t be blamed, when the entire society is culpable in respect of Human Rights violations in one way when the entire society is culpable in respect of Human Rights violations in one way or the other. It is not possible NHRC to keep vigil on every human being in the country.

The Former Chairperson of the National Human Rights Commission, Dr. Justice A.S. Anand has emphasized that it is the obligation of the State to ensure everyone the right to adequate food, education and enjoyment of highest attainable standards of physical and mental health. These rights have to be respected and made available to the citizens by the State, said Justice Anand while inaugurating the two-day Capacity Building Workshop on “Economic, Social and Cultural Rights” jointly organized by the National Human Rights Commission and the Indian Institute of Public Administration.

“India being a signatory to Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and other international instruments, is legally as well as morally committed to ensure basic human rights to all its citizens and enact laws accordingly”.
With every passing year, conviction has grown in the Commission that for right to live with human dignity, it is essential to focus in equal measures on economic, social and cultural rights and civil and political rights. The indivisibility and interrelated nature of these rights is a reality and there is a symbiosis between them. Those in the field must, therefore, ensure that the concern and anxiety, which they show for political and social rights, are also manifested in economic, social and cultural rights as we he said.

The abject poverty prevailed in the country, denies basic Human Rights to millions of poor in our country. Poverty is the major cause of various Human Rights violation. Child labor, Bonded labor and Illiteracy are various vulnerable points of Human Rights violation. The Human Rights of women are violated from birth to death. Even the female’s right to born is taken away by Sex determination tests, with termination of female fetus. Female infanticide is common in many parts of the country even as on date. Sexual abuse of female children, dowry deaths, flourishing flesh trade, rape case, pitiable conditions of windows living in Vrindawan and Varanasi are some flagrant examples of violations of the fair sex. Ours is male dominated society, where women are being treated as their subordinates. Most of the women in real terms, do not enjoy any rights at all, they are just living first as per wish of their parents and after marriage as per whims of their husband and in the old age, as per convenience of their sons and daughters in-law.

The NHRC has tried to check the human rights violations in wide range of spheres. The Commission has asked the States and Union Territories in April 2000, to compulsorily video film the post-mortem examination in all cases of custodial deaths. The Commission has asked the State governments to sensitize the police and jail officials. The NHRC also taken up the cases of victimized women in all perspective. It has also recommended that the maintenance allowance for divorced women be increased from Rs. 500 to Rs. 5000 per month. Cases of violation of children’s right, like trafficking in children, imprisonment of juveniles, child marriage, have also taken up by the NHRC. NHRC also taken up cases of rape, death and detention without trials, vehemently.

The Founding Fathers of the Indian Constitution had a vision of the Indian society, which they wanted to realize through the Constitution. That vision was primarily reflected in the Preamble, the chapters on Fundamental Rights and Directive Principles of State Policy is the product of human rights movement in the country. It is the duty of the State to guarantee what is said in the Constitution. But the shocking evidence that the State is itself the culprit, according to Mr. J.S. Verma, the former chairman of the NHRC. According to a statement made by him on Jan. 15, 2003, just a few days before his dim the office: “It is often the State which is violator of Human Rights in maximum cases in the country. But the maximum responsibility to protect and safeguard the rights of its citizens also lies with the State”.

The former Chairperson of the National Human Rights Commission, Dr. Justice A.S. Anand stressed the need for making human rights the focal point of good governance. He called for greater role for National Human Rights Commission in the work of United Nations, its treaty bodies and specialized agencies, stressing the need to further develop cooperation between them. He made these observations while delivering a Statement to the 60th Session of the Commission on Human Rights at Geneva on 14th April 2004.

He emphasized the protection of human rights not only requires vigilance by various agencies but sustained cooperation at regional and international levels.
No commission or no Police station can police every nook and corner of the country. No NGO, no any other agency can be present everywhere to protect the Human Rights. It is the we people; it is the duty of every civilized person to rise to the occasion. This can be brought about only through general awakening which make everyone understand the eternal values of life and dignity of an individual irrespective of caste, creed or sex. In the words of Swami Vivekananda that the “Self in you is the Self everywhere.”

Adultery

Adultery is defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. The legal definition of adultery varies in different jurisdictions and statutes. Adultery in India is a criminal offence and hence there are provisions related to adultery Indian Penal Code, 1860. Section 497 defines adultery as:

“Whoever has sexual intercourse with a person who is and whom he knows, or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

For instance, if Naina is married to Samar, and Naina has an affair with Kuljeet, then Samar can bring charges against Kuljeet, but Naina will not be charged under this offence.

It is important to lay down an establishment, that from the very onset, this law does not seek to preserve the sanctity of marriage- but it pursue to secure the structure of the institution. In case of V. Revathi v. Union of India, it was held that the man was seducer, not woman. Basically it was said that, Section 497 does not provide any right to the wife to prosecute the husband who has committed adultery with another woman. the above mentioned law is striking in its pursuit to incarcerate only the ‘outsiders’ in the marriage and the community also believes to punish the outsider who breaks into a matrimonial home and violates the sacredness of marriage.
In India, Section 497 of IPC a history of 150-year colonial period and, since from its commencement, it has been spinning into debatable and questionable controversies on several accounts, such as its gender bias approach, questioning equality clause, reflecting cultural conflicts, and strong arguments were raised either for its retention, alteration, or complete modification and deletion from penal statutes.
The object, philosophy and justification of legal regulation of the adulterous behavior of a person in society has been examined appropriately on time scale so as to estimate whether its modification, retention, or deletion is imperative in the contemporary context or otherwise.

History
Incidents related to husbands having illicit affairs with other women and wives cheating behind their husband were not unknown in ancient India. Hinduism never favored Adultery, it was established as a mortal sin. According to Hindus, marriage is a pious and sacred relationship and the sanctity of marriage should be upheld all the times. Infringing the sacred commitment of marriage would lead to ruthless sin and a bad karma.

Hindu law are very strict against adultery, for both moral and social reasons. The ancient Hindu law also categorized the relationships which involved married women from those who are unmarried and the former attracted harsher punishment. There were also different acts for treating adultery, involving different caste of women. Ancient Hindu Society was not free from the obstacle of Adultery. Hindu Mythology illustrated many stories in which god themselves were indulge in adulterous thoughts and action. For instance how Lord Rama banished his wife into forest due to mere allegation of adultery. Manuscript has laid down chapters on the act of adultery. The book explains why adultery occurs, how to secure it and the ruthless punishment for the ones who are caught in such relationships. Centuries ago, this sin was punishable by death, either by public stoning, hanging, or even worse.

When the Indian Penal Code, was drafted Lord Macaulay didn’t approve adultery/ infidelity as a provision in IPC, but in the second report the presidents disfavored Macaulian’s perceptions about adultery and imposed heavy reliance upon his marks and concluded that committing adultery was a heinous crime and the offender will be liable for punishment. Hence, section 497 was instituted in Indian Penal Code.

Immediately after the institution in the Constitution of India, Section 497 Indian Penal Code was impugned on the ground that it usually goes against the spirit of equality inculcated in the Constitution. One of the most controversial cases was in 1951, when Mr Yusuf AbdulAziz, who was charged for adultery, grappled before the Bombay High Court that Section 497 of IPC is unconstitutional as it, in infringement of Articles 14 and 15 of the Constitution, as it operates unequally between a man and a woman by making the former only responsible for adultery. Therefore, he argued, its discrimination in favor of women and against men exclusively on the ground of sex.

In most of the foreign jurisdictions, adultery, exclusively from being a ground for divorce, it has been realize as a criminal wrong against marriage. Coincidentally, in these jurisdictions, both spouses are generally adhered criminally responsible for their extramarital sexual intimacy.

However, the law of adultery in India is commenced on the one and a half century ancient caste- based “social norms” in the reference of the traditional conservative property-oriented familial ideology. It is also pre conceived on a few obsolete and moot assumptions of sexuality, sexual agency and unequal marital rights.

CYBER CRIMES

The era of nuclear warfare conceived the idea of a system which could even survive the devastation of nuclear weapons. “A post-apocalypse command grid” was the original idea for Internet -‘Bruce Sterling’ has stated. The idea of ‘internet’ was conceived in the early 60’s while a code for its regulation was mooted in late 90’s . This clearly brings about the reason for the complication of cyber-crime. Cyber-Crime may be said to be an act which violate netesthetics.

INTRODUCTION

The word cyber and its relatives are probably the most commonly used terminologies of the modern era. In the information age the rapid development of computers, telecommunications and other technologies has led to the evolution of new forms of trans-national crimes known as “cyber crimes”. Cyber crimes have virtually no boundaries and may affect every country in the world. They may be defined as “any crime with the help of computer and telecommunication technology”, with the purpose of influencing the functioning of computer or the computer systems.

The extent of loss involved worldwide of cyber crimes is tremendous as it is estimated that about 500 million people who use the Internet can be affected by the emergence of cyber crimes. Cyber crimes are a very serious threat for the times to come and pose one of the most difficult challenges before the law enforcement machinery Most cyber crimes do not involve violence but rather greed, pride, or play on some character weakness of the victims. It is difficult to identify the culprit, as the Net can be a vicious web of deceit and can be accessed from any part of the globe. For these reasons, cyber crimes are considered as “white-collar crimes”. To understand cyber crime as a significantly new phenomenon, with potentially profoundly new consequences, it is necessary to recognize it as a constituent aspect of the wider political, social and economic reconstructing currently effecting countries worldwide. This new technology not only provides opportunities for the profitable development of an international information market but has also raised the specter of new criminal activities to exploit them.

The very technology that enables multinationals to do business more effectively and challenge the individual controls and regulations of nation states, also offers the prospect of globally organized criminal networks. Moreover the free flow of uncensored information on electronic networks and web- sites is as attractive to insurgents and extremist groups as it is to dissidents proclaiming their human rights. Just as crimes have changed with the growth of information technology so have the categories of criminals who engage in such crimes. There are three basic categories of criminals who engage in such crimes, ranging from hackers, information merchants and mercenaries, to terrorists, extremists and deviants.

 Now speaking about the types of cyber crimes, there are divided mainly in four types; Financial, Privacy, Hacking and Cyber Terrorism. Financial crimes means the steal of money of the user or account holders. Likewise, the stole data of companies which leads the financial crimes. Secondly, Privacy crimes includes stealing the private data which leads to ruin the people and let them suffer by misusing their personal data. In, hacking they intentional deface a website to cause damage or loose to the public or owner and diminish its values. Here last but not least the cyber terrorism is not related to terrorist or its organizations but to threat someone on level of creating fear is also the same.

To conclude, we can say that cyber crimes is a violation of not law but the human rights too and to avoid that all we need is some common sense and logical precautions.

Right To Information

The Right to Information Act, 2005 (RTI) is a law enacted by the Parliament of India “to provide for setting out the practical regime of right to information for citizens.” The Act applies to all States and Union Territories of India, except the State of Jammu and Kashmir – which is covered under a State-level law. Under the provisions of the Act, any citizen (excluding the citizens within J&K) may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within thirty days. The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally. This law was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005. Information disclosure in India was hitherto restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act now relaxes.

Right to information under constitution and its exception

The right to information movement in India began with the Mazdoor Kisan Shakti Sangathan (MKSS) movement to bring in transparency in village accounts through the demand for minimum wages in rural India. False entries in wage rolls were a sign of increasing corruption in the system, which encouraged MKSS to demand official information recorded in government files.

The constitution of India does not clearly provide Right to information. However, the Apex court of the country held in several cases that Right to information is concern with the Article 19 (1)(a) and Article 21 of the Indian constitution which states freedom of expression and speech and Right to life and personal liberty respectively. In other words we can say that it (Right to information) protect the very purpose of the such Articles. Article 19 and Article 21 comes under part 3 of the constitution which is the fundamental Rights of Indian constitution. In this way we can say that Right to Information might be considered as fundamental right of the constitution.

Article 19 of the Constitution of India talks about rights and in Art.19 (1) (a) we have the Freedom of Speech. This Freedom not only extends to the right of expressing the views freely but also the right to know. This right to know also has some limitations to it, for say, information of national security or any other matter which would affect the nation’s integrity. But if contains information for example related to sanitation then it is not a matter of national security and the public has the right to know why such information is with held.

Citizens have a right to know about government affairs. But the right is not absolute; secrecy can be legitimately claimed in respect of transactions with repercussion on public security. In other words, the information which is not in the interest of the public or country cannot be disclosed at any circumstances. Sec.8 of the Right to information Act, 2005 is concerns with the same. In the case of Prabha dutt v. Union of India, the Apex court ordered the superintendent of the Tihar jail to allow the representatives of a few news paper to interview two death sentence culprit under Article 19 (1)(a) though with the observation that the right under Article 19(1)(a) “is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information’’. This position has been reiterated in subsequent cases. The right to information was regularly recognized by the court in a number of cases as it is concern with freedom of speech and expression in Article 19(1)(a) until finally it was incorporated in the right to information Act, 2005 and give ultimate mechanism for its utilization.

Right to information Act, 2005 and its exception
The right to information bill was passed by Lok Sabah on 11th may 2005 and by Raj Sabah on 12th may 2005 and took the assent of president on 15th June 2005. It has come as statue book Right to Information Act, 2005 (22 of 2005). It was enacted to provide transparency and accountability of the sovereign authority to the people. Under this Act an individual can make an application to get the information from the public authority. It aids to check the working system of the government. In the democracy of India, where its citizens play a very crucial role, it is very necessary to provide them adequacy, transparency and accountability of the government. Now the question arises is that, is the individual has the right to get any information from public authority? Article 19 (1)(a) (which is a fundamental right) implicit or concern with the right to information but Article 19 (2) of the constitution also states that if the disclosed information affects the integrity or security of the country then government can impose restriction on such sub clause. In other word, a citizen can get the information to the extent which does not affect the secrecy and dignity of the country. So right to information is not an absolute right. Section 8 of the Right to Information Act concerned with the exemption from disclosure of information. It states that any information which affect country’s integrity, security, strategic, scientific economic interest of the state which lead to incitement of an offence and contempt of the court of law, breach of privilege of parliament and state legislature, information regarding trade secret; the disclosure of which would harm the competitive of third party, information received in confidence with foreign government, information related to personal life of individual which has not related to any public interest or activity shall not any obligation to the public authority to be disclosed. Because of such exception it is said that Right to information does not provide absolute right.

Ambiguity and Obstacles
Right to information has also ambiguity. Section 22 of the Right to Information Act 2005 provides that it is to have overriding effect over inconsistent legislation or rules. The Official Secrets Act, 1923, a legacy of British rule in India, contains several provisions prohibiting the flow of information from the Government to ordinary people. It was enacted to protect against spying, but its provisions are far-reaching. They serve not only to restrict access to information, but also to punish the disclosure of certain sorts of information, by any person. Sections 123 and 124 of the Indian Evidence Act, 1872 also impose unnecessary restrictions on making available official information as evidence. The Act is designed as per the state level also. Different states have different rules which create the ambiguity.

Right to information had provided an awesome right to the citizen of India. But still there is not sufficient awareness of the people among their rights. On the other hand the fee structure is also not so favorable. It creates obstacle to achieve the very purpose of the Act or fundamental right

SOCIAL CHANGE AND LAW

The abstract idea of ” social change” evinces dimension of some of the characteristics of a group of people. If any action which affects a group of people who shared values or characteristics can also be said as ”social change.”

Generally, the change in existing pattern of social life is known as ” Social Change”. Society and social conditions never remain static. Generally, social change is to be understood as change in social structure. According to Gainsberg, social change is change in social structure e.g the size of a society, the composition or balance or its part or the type of its organisation. According to Jones, ”social change devotes variation in, or modification of , any aspect of social process,social patterns, social interaction or social organisation.” Davis observed that social change is large number of persons are engaging in activities that differ from those which their immediate fore-fathers engaged in some time before. According to Anderson and Parker, social change involved alteration and structure or functioning of forms or processes themselves.

Social change means there is must change in social structure. Social structure which can be understood as nature, social behavior, social relations, social organizations, community of people. Social change is change in the social order. According to Charles L. Harper, ””significant alteration of social structure and cultural patterns through time.”

In this context, I deem it is apt to remember, the observation of Dennis R. Fox:
”Well-meaning efforts by liberal psychologists to reform the law in keeping with values such as dignity, privacy, justice, and equality are often misguided because law exists to serve the status quo. Law inhibits the systemic, radical social change necessary for psychological and societal well-being. It does so through coercive power, substantive assumptions about human nature, the ideology of law’s legitimacy, a preoccupation with procedure rather than substance, a focus on rational technicality rather than equity, and encouragement for limited, self-defeating legal solutions. Psycho legal scholars should arouse public dissatisfaction with law and assist social movements seeking to overcome legal impediments to social change.”

The theories of Social Change:
1. Linear theory of social change
2. Cyclic theory of social change.

Elements of Social Change:
The word ”social change” is used in history,politics, economics,and sociology. Social change is also an issue in social work, political science, history,sociology, anthropology, and in many social sciences. Social change is being created by revolution, protest,politics, communities, and by direct action. Elements of social change can be separated as follows.
1. Physical or geographical
2. Biological
3. Economic
4. Cultural
5. Psychological
Anthony Giddens observed social change as infra:
Sociology was born of the transformations that wrenched the industrializing social order of the West away from the ways of life characteristic of preceding societies. The world that was created by these changes is the primary object of concern of sociological analysis. The pace of social change has continued to accelerate, and it is possible that we stand on the threshold of transitions as significant as those that occurred in the late eighteenth and nineteenth centuries.

Shackman, Liu, and Wang, observed two sources of social change. One is ” systematic” and another is ”non-systematic”. Technological innovation, climate change and changes forced by other countries which come under purview of non-systematic source of social change. Generally, changes to society occur through combination of systematic as well as non-systematic processes. Eisenstadt (1973) argued that modernization required a basic level of free resources and the development of standardized and predictable institutions, such as a stable but flexible market system and political process. An additional requirement was that governing institutions be flexible enough to adapt to the changes that come up.

· The classic Hegelian dialectic model of change is based on the interaction of opposing forces. Starting from a point of momentary stasis, Thesis countered by Antithesis first yields conflict but subsequently results in a new Synthesis.

· Thomas Kuhn in The Structure of Scientific Revolutions argued with respect to the Copernican Revolution that people are unlikely to jettison an unworkable paradigm, despite many indications that the paradigm is not functioning properly, until a better paradigm can be presented.

· The Greek philosopher Heraclitus used the metaphor of a river to speak of change thus, “On those stepping into rivers staying the same other and other waters flow” . What Heraclitus seems to be suggesting here, later interpretations notwithstanding, is that, in order for the river to remain the river, change must constantly be taking place. Thus one may think of the Heraclitan model as parallel to that of a living organism, which, in order to remain alive, must constantly be changing.

· Daoist: The Chinese philosophical work Dao De Jing, I.8 and II.78 uses the metaphor of water as the ideal agent of change. Water, although soft and yielding, will eventually wear away stone. Change in this model is to be natural, harmonious and steady, albeit imperceptible.

Law as a means of social control:
Two fold objectives of law to serve is, firstly, to keep up stability and afford orderly life in the society. Secondly, to persuade social change by changing itself according to the needs of the changing society. Thus , law is an important agency of social control. The society supervenes the law for better most socialization. Rule of law in any constitution is the bedrock for democracy. By putting fear in the minds of public, the law is a helpful agency for social control. Law regulates the behavior of the people in society. Law, by using force, makes the people conscious about their duties and obligations. Law saves precious and good concepts of the society. The exploitation of the people is curbed through law. The constitution of India, criminal , civil laws and other statutes are designed to surmount this goal.

The functionalist slant:
According to Talcott Parsons, one of the leaders of this school, change stems from other social systems (through, for instance, cultural influence, as in the case of English education in the former colonies of the British Empire) and tensions and strains within the system itself, especially those related to economic activities. Michael Haralambos, holds that the economy is solely responsible for resolving societal problems, with industrialism playing an especially crucial role. Functionalists also trust that cultural norms and values unite society, which is, to a great extent, resistant to change, and thus make certain that change in social structure is likely to be slow if it conflicts with not easily modified cultural, religious or political principles. According to Harper, short-term changes, as in family developmental stages, may be obvious and easy to comprehend, but they may not actually constitute changes at all in the long run .

Law as an instrument of social change:
To understand the social change through law and legal system, it is pertinent to understand that the working of legal system in the light of political,social,economic perspectives which can be seen in the constitution of India. Law is a mirror to know how people relate to one another , their values,what they consider worth preserving in life, and how they define their own security.

Law and Public opinion:

The law , which is molded through public opinion is thus the result of state action in accordance with the public opinion. Here it is necessary to remember that when Rajiv Gandhi government waned to bring defamation bill, because of the opposition to the bill in the public, the government dropped the idea. The public opinion is the reflection of the Peoples will. Public opinion becomes law.

Social change and the constitution of India:
Preamble is a key to open the statute and consists of source and objectives of the statute. Literally preamble means preliminary statement in writing or in speech or an introductory part of the statute. The word ”Pre ” means ”before”. ” Amble” means ”walk”. Thus , it is known the word ” preamble” means ”before walk”.

The preamble declaration provides that we the people of India having solemnly resolved to constitute India into a sovereign,socialist,secular,democratic republic and Justice: Social, economic and political Liberty of thought, expression , belief, faith and worship. Equality of status and of opportunity and to promote among them all. Fraternity assuring the dignity of the individual and the unity and integrity of the nation.

The Supreme Court of India in Beru Bari’s case,1969 observed that preamble is not part of the constitution and hence the parliament has no power to amend the preamble. Later, in Kesavananda Bharati vs State of Kerala,1973 the Court held that there is no wrong in treating preamble as part of constitution.

Conclusion:
A systems perspective must acknowledge that social problems are interconnected rather than isolated. People should be advocates for radical perspectives defensible on both psychological and political grounds, in keeping with values such as dignity, autonomy, equality, and justice.

CAUSES of juvenile crimes

These days there has been considerable increase in the number of the criminal activities in which the juveniles are getting indulged day by day. In legal terminology the juvenile is a person who is generally lies in age group of 16 to 18 years. Earlier, the trend observed in juvenile crimes was inclined to petty crimes to a greater extent. But now a days, the trend has increasingly shifted towards serious and heinous crimes as the juvenile are losing the tenderness of their age and innocence pf their souls. Heinous offences are comparatively graver in nature and have a serious impact on physicality and psychic health of a person, for instance, crimes like rape, murder, homicide, drug abuse, etc.

Now, “Heinous Crimes” include the offences for which the minimum punishment under Indian Penal Code(45 of 1860) or any other law for the time being in force is imprisonment for seven years or more.

The most recent examples are cases of Yamunanagar, where a sixteen year old boy killed a seven year old child or the Haryana Case where a eighteen year old student killed his own principal in the school. The most infamous which is talked about is is the Delhi Gang Rape Case in which a sixteen year old juvenile was involved and another is Shakti Mill Gang Rape Case where two juveniles were involved. Although no one is born criminal and its the circumstances which make any individual an offender.

There are several reasons associated with the heinous crime like nuclear family, family violence, mental health, harmonious change, racism etc. But in India the rate of juvenile crimes is rising because of the poverty and negative impact of social media on teenagers.

Let’s discuss the causes in detail;

  1. FAMILY- The values and ethics of  the juvenile is derived by the guidance and parenthood of the family and parents respectively. Family is the first social group of any child from where they learn the difference between good& bad, right& wrong and values& norms. The behavior of any child is depends upon the way of his upbringing by his family. The family plays a very significant role in a teen’s life. And sometimes it’s the most important reason behind the offensive behavior of a juvenile. The child motivates to act heinous offense because of the violence occurred in his family or because of the abusive nature of parents which lead the juvenile stubborn and rigid and he get involved in criminal activities. Hence, the kind of values the family sow, the same kind of motivation the juvenile ripe. If the family members were engaged in any kind of criminal activity it directly gives a negative impact on the juvenile.
  2. ABUSIVE PARENTING- The pattern of parenting is also an essential cause behind the heinous offense performed by a juvenile. If the parents are abusive or too strict it will always led the child in dark offenses. Example; In Great Noida Case a 17 year old boy killed his mother and sister because they abusively scolded him for studies. Hence, abusive parenting has also brings negative impact on a juvenile life.
  3. PSYCHOLOGICAL PROBLEMS- Psychological problems are also one of the important factor behind the high rate of heinous crimes by the juvenile like depression, anxiety, frustration and mental illness by the pressure of family, society and media which can led them into criminal activities.
  4. HARMONAL CHANGE- Harmonal changes is also a big cause in itself because in the period of adolescence there are various number of hormonal changes occur in the juvenile body, sometime the excessive change in emotion of anger, love and sorrowness can lead them in the direction of destruction and engage them in the trap of heinous offenses.
  5. SOCIAL EVILS-The social evils in India is currently rising. It includes ageism, racism, sexism etc. and it leads the child in violence

-Like in society people generally do racism by defining white / fair color as beautiful & black / dark skin color as ugly. This kind of statement or stereotype brought negativity in child’s mind & create a hazard violence in him.

–  Also in India, boys are consider as pride and daughters are consider a burden which create anger in girls and they led on a wrong path. These kind of social evils leads the juvenile in criminal offence.

6. MORAL ISSUES – Morality is an important concern for teens in these days. They should know their values ethics but due to lack of respect towards their elders & family members. Their valueless attitude tend them into hatred and violence towards the society.

7.  SEX INDLGENCE – The teenagers who experience sexual assault in their childhood may develop some kind of repulsiveness in their mind and personality. So, in their adolescent they want to have sex and too much of sex variance can lead them in kidnapping, rape cases and sexual child assault to another kid as they have been treated earlier.

8. ECONOMICS ISSUES – In India, the youth have high financial aspiration which they can not afford and for the fulfillment of their particular ambition and status they choose the criminal offense such as robbery etc.

9. POVERTY – It is one of the most important and crucial factor in juvenile crime in India. The teen attracts to do illegal activities as they are poor so they could not get proper education which lead them unemployment and engagement of school. So for their basic needs they involve in criminal activities like robbery; due to their poor status they could not get proper food and can not remove their hunger and involve themselves in cheap smoking and consumption of alcohol which help them to sleep properly without having the full meal. Even due to lack of money they sale drugs involve themselves in prostitution and other heinous crimes.

Poverty is the cause in India by which juvenile have nothing to do and only to think in the direction of destruction and so they do only damages to the public property lead in curfew for attention and term themselves as adults and show hatred in other forms of social evils.

10- ROLE OF SOCIAL MEDIA – The role of social media is one of the most crucial and critical causes behind the heinous offenses of juvenile crime in India because they influence by the thing shown on it.

Hence, it is quite evident that juvenile delinquents do not have any inbuilt proclivity for getting indulged in criminal activities but certain adverse conditions force them to enter the gloomy world of crimes. So, its our responsibility as a society with the help of government and legal system to ensure that the children of tender age get the right education and environment. For this there are many areas which need to be worked up like improved living conditions, counselling, better psychological treatments, accessible opportunities of educations, etc. Also some necessary provisions need to be made to make the future of juveniles “better and brighter”.

law related to mental health in india

INTRODUCTION

In the current time of COVID-19 pandemic, mental health is an issue that has hugely and drastically affected the individuals all over the world. People are facing stress, anxiety and depression because of the disruption in their daily routine.

DIFFERENCE BETWEEN MENTAL HEALTH AND MENTAL ILLNESS

Now “Mental Health” and “Mental Illness” are two different psychological terms but often used as they represent the same meaning, but they do not stand for the same thing. Mental health is about mental wellness-we all have mental health whereas Mental illness is when someone is diagnosed with mental disorder.

DEFINITION

According to WHO, “Mental health is a state of well-being in which an individual realizes his or her own abilities can cope with normal stress of life, can work productively, and is able to make a contribution to his or her community.”

In other words mental health refers to cognitive, behavioral and emotional well being. It defines about how an individual think, feel and behave.

MENTAL HEALTH AND LAWS IN INDIA

Mental health workforce in India (per 100,000 of population) includes psychiatrists (0.3), nurses (0.12), psychologists (0.07) and social workers is very low. For laws related to mental health the Mental Health Care Bill 2013 was introduced to Rajya Sabha in August 2013 and after 134 official amendments, was passed in August 2016. Properly implemented, mental health legislation plays a significant role in protecting the rights to mentally ill, ensuring access to care and promoting social justice foe the mentally ill, their families and carers.

Mental Health Care Act 2017 was passed on 7 April 2017 and came into forces from 7 July 2018. It states that mental illness is determined “in accordance with nationally and internationally accepted medical standards (including the latest edition of the International Classification of Diseases of the World Health Organisation) as maybe notified by the Central Government.” This Act superseded the previously existing Mental Health Act, 1987 that was passed on 22 May 1987.

CONCLUSION

To conclude, I would like to say that mental illness is a serious problem but on an individual level, we can help our friends, family and near ones by talking to them and initiating to help them to open up about their situations and let us help them to understand the root cause which can lead them to better solutions.