The role and power of administration is nowhere defined. Anything that is not covered by either legislature or judiciary, is the job of administration, basically carrying on the general working of the state. There is also a possibility of overlap of these functions as long as the essential functions of concerned department are not taken away. Thus administration has very extensive powers. According to Sundarjas Kanyalal Bhatija And Otherrs v. Collector, Thane , the Supreme Court of India has declared various acts of Executive as legitimate thus giving them huge powers also by not attracting principles of natural justice towards the administration. But along with applying certain limitations on its power.

DECISION MAKING POWER
In the case of Aeltemesh Rein, Advocate v. Union Of India And Otherrs , an interesting question came in front of the Supreme Court. The problem is that the executive are an organ of the state, thus is not directly elected by the people, now the question is whether they should be allowed to use discretion while doing their job. Justice Venkataramiah, while discussing the executive’s use of discretion, stated his views that there is certainly a need and a demand of discretionary power when it comes to executive doing their job, but it is also very important that this power should be exercised in a just, fair and reasonable manner. Thus we can say that on one hand this judgment tries to give huge powers to the executive, on the other hand it is also increasing the scope of judicial scrutiny of the acts of administration, as it is the judiciary which is going to decide what is just, fair and reasonable.
The other view to this can be that the Supreme Court is not limiting the power of executive as much it is limiting the power of individual citizens to reach out to the court as the court allows the administrative decision to be challenged only when the act concerns the public at large and not just a mere person. As a matter of fact, the Supreme Court in Saraswati Devi And Others v. State of U.P. And Others, tries to even limit the types of objections that can be raised against acts of administration and have laid down guidelines regarding the same.

LEGISLATIVE POWERS
It is evident that executive caries a lot of legislative functions. The question of amount of legislative power that the executive should enjoy has come to the Supreme Court many times. In this regard the supreme court has had different views and have tried to make the two ideologies to a consensus, one being that extensive legislative powers should be vested with the administration for its smooth functioning, other being that they should have only limited power and should only do its essential job of implementing laws.
Before the formation of constitution, the view of law according to Queen v. Burrah was that any substantial delegation of legislative authority by the legislature of the country is void. But this was overturned in In Re The Delhi Laws Act, 1912 v. The Part C States (Laws) Act, 1950 , in which the court affirmed the validity of delegated legislation in India. Also in this case certain guidelines were given for the delegation. Justice Kania gave the majority opinion stating that delegated legislation can be allowed as long as it does not affect the essential legislative function of the legislature.
The court in these cases has nowhere explicitly stated that what would be essential legislative function. Thus what amounts to essential legislative function would depend on the court. And also delegation should only be allowed if it does not affect the essential legislative function. Thus the court by not defining essential legislative function has ensured judicial scrutiny in complicated matters.
Apart from this there is also a concept of abdication test. In minority opinion of the court in Gwalior Rayon Silk Mfg. (Wvg.) Co. v. The Asstt. Commissioner of Sales was that the delegation of legislative power should be allowed as long as in lies with the legislature to repeal the enabling act of delegation. Though, due to being given by only a minority, this view is not prevalent but still it provides us with a different perspective and argument against the judicial scrutiny, also in favor of giving extensive legislative powers to judiciary. This is because we can say that legislature is consenting to the delegation of its power by not repealing the enabling act and thus delegated legislation should be allowed.

ANCILLIARY LEGISLATIVE POWERS
Apart from legislative powers the executive also has ancillary legislative powers which include modification, extension etc. of certain laws. There have been number of cases regarding this also.

The Supreme Court of India has said that the extent of powers of executive includes modification, but again the court has not given unlimited power and has given a sort of guideline regarding the same. In Lachmi Narain v. Union of India And Others , the court held that only those modifications should be allowed that are necessary. Also earlier in Rajnarain Singh v. The Chairman, Patna Administration , the court was of the view that modifications are allowed but the limitation is that essential features of the legislation cannot be modified. In this case the court held that the policy is an essential feature of legislation and change in policy by modification is not allowed. Still, nowhere has the court given out a specific list of what these essential features are, thus retaining with itself the scrutiny of acts of administration.
The other problem is retrospective effect of the laws applied by the executive. These laws can have negative impact as the people must face punishments or consequences for the acts did not use to be unlawful, but have become now, thus putting a huge burden on them. Thus in B. S. Yadav And Ors. v. State Of Haryana And Ors, the court opined that the executive can be allowed to make laws with retrospective application provided that it has some reasonable nexus with provisions of the act. It means that it can only be allowed if it can be proved that without the retrospective application the provisions of the act could not be complete. Thus again giving a limited power to the executive. A good thing is that it can be seen in cases like Union Of India And Otherrs v. V.D. Dubey and Miss Raj Soni v. Air Officer Incharge , that the court has been very progressive in this regard and always give decisions against retrospective application if it looks like the retrospective application can lead to harm of someone.
Other thing that the court has seen fit to intervene with is the publication of rules made by the executive. In Harla v. The State Of Rajasthan , the court has explicitly specified that it is mandatory to publish the rules made by the legislation. In Narendra Kumar And Ors. v. The UOI , the court even said that publication should be done in the manner in which it is specified in the legislation, otherwise the rule would not be applicable. If no mention of any specific method of publication, then the publication can be made in the official gazette.

CONCLUSION
Thus it is very difficult to make a binary of the role which is played by the Supreme Court of India on governing the actions of the executive. The problem here is that the Supreme court cannot-not give a good amount of the power to the executive as it would be very difficult for it to do its work of implementation of laws. On the other hand it has also limited its power so as it is not misused. Factors like public policy and individual justice also play an important role thus I think the drawing of a binary would be unhelpful in understanding the role the Court plays here.

Author- Himanshu Nandal

Class – BBALLB

College- Geeta institute of law, panipat

It is a territorial conflict between India and Pakistan over the Kashmir region. This conflict starts after the partition of India in 1947 as a dispute over the former state of Jammu and Kashmir under this dispute 3 wars escalated between India and Pakistan and several armed incidents. Before we explain the next issues it’s very necessary to access the history of Kashmir. In 1846 under the terms of treaty of Amritsar the British sold the beautiful valley of Kashmir to the Hindu dobra ruler Gulab Singh as maharaja of Jammu and Kashmir he was a last able to include Kashmir as the Jewel among his other territorial possessions which includes Jammu Ladakh, Baluchistan and numerous hill states but the majority of population living in this sector were Muslims, Hindu Sikhs and Buddhists were in minority. After a century, later the Indian continent was partitioned in the Independence in the 1947. Maharaja Hari Singh the grandson of Gulab Singh could not decide to join the Pakistan or India for over two months his state remained independent. In October 1947, a large number of tribe’s man from Pakistan north west frontier attacked on the state at that time Hari Singh agreed to join India. His decision was immediately and in a quick action Indian army reached in Kashmir valley and a war between India and Pakistan started. The war was finally halted in 1949 Pakistan immediately contested on the basis of the state’s majority muslim population a ceasefire between the both countries supervised by recently founded united nations. Over 60 years India and Pakistan have fought over Jammu and Kashmir both on battlefield and at the negotiating table. Both countries wanted to absorb it within their borders. Neither of them has succeeded in doing so entirely. The Part occupied by the Pakistan known as azad Kashmir and Jammu & Kashmir known as the state of India this area includes the region of Ladakh Jammu and the valley of Kashmir since 1949. The ceasefire has been monitored by a small force of the united states military observer group in India and Pakistan. But suddenly in 1965 when Indian Prime minister Lal Bahadur Shashtri face a war with Pakistan following the 1971 war when east Pakistan succeed to become Independent Bangladesh. After ceasefire of 1971 war an agreement was made in 1972 non-Shimla agreement and both the head of the states Mr Zulfikar Ali Bhutto from Pakistan and Smt. Indira Gandhi from Indian sides signed an agreement and renamed the line of control. From 1971 to 1992 the situation in Kashmir was very peaceful the tourist from India and Abroad visit the beautiful valley and enjoy freely without any fear but after 1992 Pakistan again starts interrupting in Kashmir valley because the pain of Bangladesh disturbed the rulers of the Pakistanis heart, first they tried to create disturbance in Punjab the state of India and the terrorist attacks on buses and trains started through militants. Many civilians were killed by the Pakistani sponsored Sikh militants but in this conspiracy Pakistan failed after that it just concentrated on Kashmir. Hindu and Sikh’s were directly attacked by the Kashmiris in Kashmir valley more than five lakh hindus and sikh forced to leave the valley. These Kashmiris pandits are stralling for their livelihood in the different parts of the India in recent situation. The militancy increased and the young boys of the region attacks on Indian Army through stone pelting and these Pakistani sponsored mlitants attacked on Indian base camps Time to time i.e. URI, Pathankot and Phulwama attack. In my views, it’s just like a great International business and we shouldn’t just let it roll like now as a lot of time, money and lives are wasted in it. We should find out the real tycoon of this game who letting this conflict to happen and continue for their own benefit, then eliminate them.

Israeli Palestine Issue-
The Israeli and Palestinian conflict is the ongoing struggle between Israelis and Palestinians that begin in the mid 20th century. The origins to the conflict can be traced back to Jews immigration and Palestinians struggle from a long time. The conflict is one of the world’s longest running and most controversial conflict we can say that it is a conflict between two self-determination movements one the jews Zionist project and the Palestinians nationalist project that lay claim to the same territory but it is so much more complicated than that anyone don’t want to back off because both the societies try to survive their livelihood. There are many defender countries from the both sides but America is the strongest defender towards Israeli side.
Israeli jews and Palestinians Arabs both want the same land and a compromise has proven difficult to find. Israeli is world’s only jews state locate just on the east side of Mediterranean Sea. Palestinians the Arab population that hails from the land Israeli now controls refer to the territory as Palestine want to establish a state by that name on all or part of the same land, the main conflict between the two societies is who gets what land and how it is controlled.
The both Jewish and Arab Muslims date their claims to the land back. The current political conflict began in early 20th century. Jews fleeing prosecution in Europe wanted to establish a national home land. Arab and muslim majority territory in the automan and later british empire. The Arab resisted seeing the land rightfully there and early united nations plan to give each group. The early united nations plan to give each group part of the land failed. The Israeli and the surrounding nations fought several wars over the territory. The true wars mainly named one 1948 and another in 1967.
The 1967 war is particularly important for today’s conflict as it left Israel in control of west bank and Gaza strip, these two territories home to large Palestinian population.
Today the west bank is nominally controlled by the Palestinian authority and is under Israeli occupation. This comes in the form of Israeli troops who enforce Israeli security restrictions on Palestinian movement and activities. Gaza is controlled by Hamas a Islamic fundamental party is under Israeli blockade but not ground troop occupation.

Suggested Solution-
The primary approach to solving the conflict today is a so called two state solution that would establish Palestine as an independent state in Gaza and most of the west bank living the rest of the land to Israel. Though the two-state plan is clear in theory. The two sides are still deeply divided over how to make it work in practice. The alternative of two states solution is a one state solution most observer think this would cause more problems that it would solve but this outcome is becoming more likely over time for political and demographic regions.

Similarities between both-
Those comparing Kashmir with Palestine either ignorant or doing with it as there is no similarity. Kashmiris in India have a full political right as a Indian citizen and in fact they have extra privileges let’s see how they are not similar but in fact almost apposite against Palestine’s.
Kashmiris can buy land in other states of India and set up their business in all over India while people from other Indian states can’t even buy land in Kashmir.
They are eligible for government jobs in any part of India while people from other states can’t apply for state government jobs in Kashmir.
Students from J&K gets special scholarship for studying in India tuition fee hostel fee maintenance charges everything covered under the special scheme i.e. UDDAN and etc.

There is no restriction on their religious faith even Govt. of India gives subsidies for performing haj yatris.
After all type of facilities given by the Indian Govt. to Kashmiris the most people of the Kashmir region is anti-India and they create different type of violence’s against the police and armies. Recently a Big event happened in Phulwna wher 44 CRPF Jawans were killed in a terrorist attack on convoy by a Suicide bomber militant.

Palestine’s- Palestinians in Gaza patti don’ even have access to basic human rights no constitutional and political rights. Palestinians want a demolished in west bank for further jews settlement while in Kashmir it was the Hindus who lost their homes and land due to violence of Pakistan sponsored Jihadi dogs.

Even medical and food aids from foreign countries are denied and trans in Gaza while in Kashmir Indian army remains on the forefront to rescue Kashmiris in time of natural disaster and Indian Govt. provide full aid in many times.
Jews from other countries can settle in Israel on philistine lands while in Kashmir even Indian citizens can’t do that.

But there is a single similarity between Kashmir and Palestine conflict. In Kashmir, the Kashmiris pundits’ have been convicted from their land and the Palestinians are forced to evicted their land by Israiles and force to leave in tents or under the open sky. In other sight, Palestinian fighting for their homeland and Kashmir is a religious war they want to be separated from India. In Kashmir people who are crying for AZADI have being given all sorts of political independence except defense, communication and International Relations. They can elect their own leader and run their own administration. They have their own flag people from outside can’t buy land in Kashmir.

Author- Shifa

Class – BBALLB 1st sem

College- Geeta institute of law,panipat

To begin with a quote:
Scruttons Ltd. v Midland Silicones Ltd. [1962] AC 446 by Lord Reid:
“I find it impossible to deny the existence of the general rule that a stranger to a contract cannot in a question with either of the contracting parties take advantage of provisions of the contract, even where it is clear from the contract that some provision in it was intended to benefit him. That rule appears to have been crystallised a century ago in Tweddle v Atkinson [1861] EWHC QB J57; (1861) 121 ER 762 and finally established in this House in Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] AC 847.”
The credit for development of the doctrine of Privity of Contract is credited to the common law courts, yet now it is used in numerous nations like India, England, Canada, Australia and New Zealand with certain statutory and legal exceptions. This doctrine guarantees that an outsider to a contract can neither sue nor be sued by the parties to the contract. Notwithstanding, in course of time, it was understood that the doctrine is so inflexible it couldn’t possibly adapt to the social requests, for a contract influences the parties to it as well as society everywhere too. Therefore, certain impediments (or exemptions) were advanced and perceived to the doctrine/tenet by both the judiciary and legislature.
In spite of the fact that the doctrine of Privity of Contracts has no solid base for its standing however there are a few avocations which still backing its survival :
Firstly, as a contract is based on a mutual agreement, it would not be fair to force commitments on any party who might not have given his consent to be bound. Furthermore, empowering third parties to enforce contracts would influence or limit the rights of contracting parties to differ or end the contract. Next, a third party might not have provided the consideration, and consequently should not have the capacity to authorize the agreement. What’s more, finally, the promisor is liable to face two activities, from the promisor and the third party.
As we are aware there is no separate/independent enactment of the principle of Privity of Contract in India however luckily, unlike England, the law of Contract in India is classified. It is to be, notwithstanding, noticed that the Indian Contract Act 1872 does not expressly contain a solitary procurement/provision connected with the doctrine of Privity of Contract. Hence, the position of the tenet may be pictured in the light of different procurements/provisions of the Contract Act. Those provisions are: Sections 2(a), 2(b), 2(c), 2(e), 2(h), 73, 74, and 75 of the Indian Contract Act, 1872.
It can, accordingly, be induced from the above procurements of the Contract Act that the promisor is liable to the promise and the promisee is answerable to the promisor. It recommends that only the parties to any specific contract are the proper persons who can authorize/compel the contractual rights and shoulder the contractual commitments. Further, it is evident from section 73 of the Indian Contract Act, 1872 that the party who endures by breach of a contract is entitled to be awarded damages from the other party to the contract. In perspective of section 74 of the Act, it can be said that if an amount is named in the contract as the sum to be paid if there should arise a breach of a contract, the party claiming the breach of contract is qualified for get a reasonable compensation not surpassing the sum so named, or may be, the penalty/fine stipulated for.
In India there has been an incredible difference of opinion in the courts in the matter of how far a third party to a contract can uphold/enforce it. There are numerous chosen old cases which proclaim that a contract can’t be implemented by an individual who is not a party to it and that the doctrine/ tenet in Tweddle v. Atkinson, which is as much pertinent in India as it is in England . The Privy Council extended the principle to India in its choice in Jamna Das v. Ram Autar Pande. According to the opinion of RANKIN CJ, this is by all accounts the impact of the Contract Act itself in the case of Krishna Lal v. Promila Bala. The principle in Tweddle v. Atkinson was maintained by the Supreme Court of India in M.C. Chacko v. State Bank of Travencore . For this situation, SHAH AG CJ supported the proclamation of RANKIN CJ in Krishna Lal Sahu v. Promila Bala Dasi in the wake of alluding to the perception of Lord Haldane in Dunlop v. Selfridge.
Be that as it may, an unbending adherence to the precept of Privity is sure to bring about hardship. The current situation with significant Indian law is not sure and is still developing. Special cases which have been perceived by our legal and assembly don’t cover all instances of hardship and subsequently increase the confusion of layman.
This is where the controversial question arises regarding, “Should the Doctrine of Privity be annulled in Toto or be liable to certain stipulation?”
As per 13th Law Commission Report, 1958, the better course would be to embrace a general exception to cover all instances of contract presenting advantages upon 3rd parties and shed the specific occasions where the standard of Privity must not be valid .
I am in consonance with the suggestion of Law Revision Committee that a different and separate section must be adopted as section 37 A, which is like The Contracts (Rights of Third Parties) Act, 1999. It must read as follows:
Section 37 A – Benefits conferred on third parties:
1. Where a contract expressly confers a benefit directly on a third party, then, unless the contract otherwise provides, which shall be enforceable by the third party in his own name, subject to any defences that would have been valid between the contracting parties.

2. Where a contract expressly conferring a benefit directly upon a third party has been adopted, expressly or impliedly, by a third party, the parties to the contract cannot substitute a new contract for it or rescind or alter it so as to affect the rights of the third party.

There are similarly four conceivable reform choices:
(a) Judicial Development of circumvention of the Privity doctrine/tenet.
(b) Legislative exceptions to the Privity doctrine to be made in particular cases.
(c) Adopting a general authoritative procurement/provision that no third party is prevented from enforcing a contract made for his advantage on the grounds of absence of Privity.
(d) Reform by method of comprehensive legislative plans/schemes.

Every choice has its own particular advantages and disadvantages. We have realised that choices (a) and (b) have the upside of being adaptable and can address the needs of particular circumstances. Their foremost deficiency is that they both don’t manage the Privity doctrine inside a detailed, efficient and lucid plan. Choice (c) may be easy to execute, yet it is not attainable since it leaves an excess of crucial questions unanswered and that would make extensive instability in its operation. Alternative (d) which discusses a complete change of the Privity convention would give sureness, clarity and intelligible assemblage of law, which is not accessible under alternate choices and subsequently quite suited to the issue. This methodology/approach is additionally adopted by Australia, England, New Zealand and Singapore.

After researching, I am drawn to the conclusion that the thought behind the very idea of Doctrine of Privity of agreement is itself dubious and not suited to the current context. Likewise, I imagine that essentially abrogating the principle of Privity or to disregard it would not settle the emergency and rather represent a significant test to the legal framework. In this way, there is an urgent need to reclassify it.

Despite the fact that it has been in presence in numerous common law systems on the planet for a very long, so challenging and transforming it in its aggregate wouldn’t be defended. What is needed is to alter the procurements/provisions by making:
(1) A separate section according to proposal of the 13th Indian Law Commission Report which may be useful to decrease the hardships made by this convention, or
(2) Enacting a completely new legislation offering rights to an outsider (or third party) to the contract in certain qualified circumstances which may be a different option for it.

Hence, according to my opinion, the importance of the Doctrine of Privity can be improved and this doctrine must not be abolished in Toto. Yes, undoubtedly, the Doctrine of Privity may not be that important in the present circumstances, yet I think that if this doctrine is properly evolved and undergoes necessary changes, then this doctrine will someday become relevant in the very near future.

Author – Harkirat Singh

Class – BBALLB 1st sem

College- Geeta institute of law, panipat

Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties. This liability has expanded in recent years following the decision in Lister v Hesley Hall Ltd to better cover intentional torts, such assexual assault and deceit. Historically, it was held that most intentional wrongdoings were not in the course of ordinary employment, but recent case law suggests that where an action is closely connected with an employee’s duties, an employer can be found vicariously liable.The leading case is now the Supreme Court decision in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools, which emphasised the concept of “enterprise risk”.
Justification for such wide recovery has been made in several areas. The first is that, as is common in tort law, policy reasons should allow those injured to have means of compensation. Employers generally have larger assets, and greater means with which to offset any losses (deep pocket compensation) Secondly, it is under the instruction of an employer by which a tort is committed; the employer can be seen to gain from the duties of their employees, and thus must bear the consequences of any wrongdoings committed by them. Lastly, it has been justified as a way to reduce the taking of risks by employers, and to ensure adequate precautions are taken in conducting business.

Developments in establishing liability
An employer is strictly liable for torts committed by those under his command, when they are found to be his employees. To this end, the courts must find a sufficient relationship to this effect, where issues of vicarious liability are raised. It has been stated judicially that no one test can adequately cover all types and instances of employment; thus, generally, the tests used and ultimate determination rest upon the individual aspects of each case, looking at all the factors as a whole.For example, it need not matter that an employer classifies a relationship as one of independent contractor, if all the other factors represent a relationship of employee.
Historical tests centered around finding control between a supposed employer and an employee, in a form of master and servant relationship. The roots for such a test can be found in Yewens v Noakes,where Bramwell LJ stated that:
“…a servant is a person who is subject to the command of his master as to the manner in which he shall do his work.”
The control test effectively imposed liability where an employer dictated both what work was to be done, and how it was to be done. This is aptly suited for situations where precise instructions are given by an employer; it can clearly be seen that the employer is the causal link for any harm which follows.If on the other hand an employer does not determine how an act should be carried out, then the relationship would instead be one of employer and independent contractor. This distinction was explained by Slesser LJ:
“ It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the contract. The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor.
”

In recent years, as the duties of employees have grown ever more specialised and far reaching, the control test has seen less primary use in establishing liability.It is difficult to state for example that a hospital administrator controls the method and actions of a professional doctor, despite liability having been clearly established in such cases.Different formulations of the test have been proposed, in an attempt to rectify these problems. One such formulation focuses on the ability of an employer to specify where and when tasks be carried out, and with whose tools and materials.
Other tests of employment have focused on different contractual and external factors. Lord Denning proposed a test based on the integration of an individual to a business or organisation.Tests based on the economic relationship between an employer and employee have found favour in subsequent cases, notably Market Investigations Ltd v Minister of Social Security,in the decision of Lord Cooke. Here, it was argued that where a person was in business on their own account (and at their own risk), they would be under a contract for services, whilst otherwise they would be under a contract of service. This idea have been cited with approval by the Privy Council, with several relevant factors being considered, such as risk of loss, and chance of profit.
As can be noted, liability is generally not extended to the acts of independent contractors.Though such a distinction has been criticised, there are several circumstances in which an employer may be liable for the acts of contractors. If an employer commissions a tort, this will render the employer a joint tortfeasor. Additionally, where an employer is negligent in selecting a competent third party contractor, liability may be imposed. The broadest exception however is where a non-delegable duty is imposed upon an employer, either by statute or through common law, to prevent the harm of others.Where a duty is imposed by statute, either to carry out work in a certain way, or to take due care in carrying out work, then this is non-delegable.Common law duties may arise in several exceptional circumstances. One such is where an activity is being undertaken which is especially hazardous, and involves obvious risks of damage. This duty was recognised in Honeywill and Stein Ltd v Larkin Brothers Ltd, where photographers who negligently photographed the interior of a theatre set alight to the building. Their employers were found vicariously liable, as the dangerous methods of photography created a fire hazard. Additionally, where work is being undertaken on a highway, a non-delegable duty is created not to endanger any road users.Lastly, occupiers are liable in full where an independent contractor, through negligence, allows fire to spread to neighbouring land.

Author- Ashish Kaushik

Class- BBA LL.B 5.1

College- Geeta institute of law, paipat

Defamation (sometimes known as calumny, vilification, or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation, and usually constitutes a tort or a crime. In several countries, including South Korea and Sweden,communicating a true statement can also be considered defamation.
Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed.Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel.
False light laws protect against statements which are not technically false, but which are misleading.
In some jurisdictions, defamation is treated as a crime rather than a civil wrong.The United Nations Human Rights Committee ruled in 2012 that the libel law of one country, the Philippines, was inconsistent with Article 19 of the International Covenant on Civil and Political Rights, as well as urging that “State parties [to the Covenant] should consider the decriminalization of libel”. In Saudi Arabia, defamation of the state, or a past or present ruler, is punishable under terrorism legislation.
A person who defames another may be called a “defamer”, “libeler”, “slanderer”, or rarely a “famacide”.

There are three main essentials of Defamation viz.,

• 1.The statement must be published. …
• 2.The statement must refer to the plaintiff. …
• 3.Defamation must be published. …

Libel and slander are types of defamatory statements. Libel is a written defamatory statement, and slander is a spoken or oral defamatory statement.
Libel vs. Slander: Different Types of Defamation

Learn the differences between slander and libel defamatory statements.
Libel and slander are types of defamatory statements. Libel is a written defamatory statement, and slander is a spoken or oral defamatory statement. In this article, we’ll look at where you might find a defamatory statement, provide some different examples of libel and slander, and more. (For an overview of this area of law, check out Defamation Law Made Simple.)

Author- Jyoti Singla

Class- BBA.LL.B 5.1

College- Geeta institute of law, Panipat

RAYHAAN GAUTAM
B.A. LL.B 3rd SEMESTER
GEETA INSTITUTE OF LAW
E-mail: rayhaangautam2017@gmail.com
Mob. num: +91- 8950004430
An Overview
Criminal Justice in one sense is a complex social institution which regulates potential alleged and actual criminal activity with in procedural limit supposed to protect people from wrongful treatment and wrongful conviction. The purpose of criminal justice system is to deliver justice for all by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent or consider the following, from working together to cut crime and deliver justice. The primary goal of criminal justice is: accurate identification of the person responsible, fair adjudication, retribution, deterrence, rehabilitation and restoration. The institution of criminal justice system are the police, prosecution and defence lawyers, the courts and prisons. Prisons should reduce crime in three principal way: by incapacitating offenders, by punishing and there by detaining others who would commit crimes, and by rehabilitating offender. The central purpose of criminal justice system is to deliver and effective, efficient, accountable and fair justice process for the public. The main challenge was that of making the prison system and the process associated with dealing prisoners more effective and efficient. To have an effective and efficient justice system witness protection is needed in criminal justice system.
Witness are the eye and ear of justice. It is important to be worthy of attention in both civil and criminal proceeding and absolutely necessary part of court. As witnesses is also and significant organ of the court and the part and parcel of the courts daily functioning. Neither the Indian Evidence Act nor any other substantial and procedural law have denoted the word “witness”. But definitely, there is interpretation of the word ‘Evidence’ in the Indian Evidence Act 1872.
I submissively deem to know firstly the definition and meaning of word ‘evidence’ as the intimation and use of the word “witness” itself has been included, incorporated. Thus the section-3 of the Indian Evidence Act 1872 defines the word ‘evidence’.

Evidence means and include:
1. All statement which court permits to be made before it by witness, in relation to matters of facts under inquiry, such statement is called oral evidence,
2. All documents produced for the inspection of the court such documents are called documentary evidence.

The word “Witness” includes various meaning and may be used for different purpose at a same time. The term witness in its strict legal sense, means one who gives evidence in a cause before a court of law, but has also been defined as one who has knowledge of a fact or occurrence sufficient to testify with respect to it, and an eye witness has been defined as one who testifies to what he or she has seen.
Basically, in general sense it is expression that makes it near that a person signing a legal document is signing it as a witness. The initial word of the concluding clause in deal:
“In witness where of the said parties have where into set their hand”, where fore translation of Latin phrase” in rei testimonium” even ought , a witness must meet the requirement set out by your jurisdiction but most often, witness must be of the age of majority in your state or province who is signing the documents.
Witnesses must make an oath or solemnly state that they will tell truth in court. In special cases, that they will tell truth in court. In special cases, witness who are under the age 14 or have an intellectual disability can simply promise to tell the truth. As witness is an import constituent of the administration of justice. They have to assist the court in the administration of Justice, by attending the court when required. The trail court may call as the courts witness person who were personally present at the event, forming the basis of the prosecution and his testimony is material or of eyewitness or any other witness. Therefore, assistance of witness is necessary for the Judge to conclude the case.
Importance of Witness in Criminal Justice System
Witness is an significant part of the administration of justice. They used to give evidence which help to link the charge of the offence, thereof witness perform a sacred duty of assisting the court to discover the truth. So, this is the reason why before giving evidence he/she either takes an oath in the name of god or make a solemn affirmation that he/she will speak truth and nothing but the truth. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused. Although he sacrifices his time and takes the trouble all the way to the court to give evidence. Therefore, they should be treated with great respect and regard as a guest of honour. But unfortunately, all these are seen not be happening in the courts.
There are two aspects to the need for witness protection. Firstly; that the phenomenon of witness turning ‘hostile’ on account of the failure to protect their evidence is one of the problems. The other aspect is the physical and mental vulnerability of the witness and to the taking care of his or her welfare in various respects which call for physical protection of the witness. This can be done by introduction of witness protection programmes. Further, both aspects of anonymity and witness protection will have to be ensured in all criminal cases involving grave crimes not limited to terrorist crimes. Yet, the witnesses help the court to give better justice without fear of their life and property. The court in return should also show its gratification in an appropriate manner.
The Hon’ble Supreme court in state of Gujarat v/s Anirudh Singh , highlight the necessity of people assistance in detection of crime observed that:” It is salutary duty of every witness who has the knowledge of the commission of the crime, to assist the state in giving evidence”. The importance of witness in the criminal justice system. Thus, witness is an important party in a case a part from the complaint and the accused committee on Reform of Criminal Justice System, emphasizing importance of witness.
Whereas the Supreme Court identified the important position of witness with respect to the fair trial.” Fair trail means a trial in which bias or prejudice for a against the accused, the witness or the cause which is being tried is eliminated”. The witness face challenge to their life and their family. Further, other who are associated with the police to help in crime prevention are also exposed to risk. Therefore, witness should be protected under the law.
Reason Behind Witnesses Hostile
As witnesses are the key to the case but what happens when these witnesses turn hostile or retract from their statement. Due to several factors like the witness being not in position for reason beyond control to speak the trust in the court or due to negligence a ignorance or some corruption. The term witness means one who gives evidence in a cause before a court of law, but it has also been defined that one who has knowledge of facts or occurrence sufficient to testify with respect to it .Basically the term,” hostile witness” was first introduced in the common law to provide adequate safeguard against the “contrivance of an artful witness” who wilfully by hostile evidence “ruin the cause” of the party calling such a witness.

1. The main cause for the high acquittal rate in our criminal justice system is the witness turning hostile. In order to get rid of this cross examination as early as possible, either the witness will give facts statement or to make the matter worse.
2. Generally, the reason is the unholy combination of money and muscle power, intimidation and monetary inducement.
3. There are a number of reasons for a witness turning hostile, the major one being absence of police protection during and after the trail.
4. Another reason is the inordinate delay in disposal of cases and intimidation is also one of the causes of witness turning hostile.
There is need to take step to stop harassment of the witness so that he does not feel frustration. There is also urgent need to provide adequate protection to the witness from intimidation by criminals. As the studies have shown, what witnesses are harassed alienated them as well. The length of the trail and the way they are treated in the court. As a witness is not treated with the respect in the court. They have to wait for whole day and then finds the matter adjourned. And when he does appear, he is subjected to un checked examination and finds himself in a helpless situation.

PROPOSED MECHANISM FOR WITNESS PROTECTION PROGRAMME
A number of measures must be taken at the trial stage to ensure that the case is successfully prosecuted and the trial process is not compromised. Some measures, such as video testimonies or the exclusion of the general public from a hearing, are aimed at protecting the witness’s identity, privacy and dignity. Other measures, for example witness concealment or allowing witnesses to remain anonymous, are aimed at protecting their physical security.
Court witness protection measures are generally authorized and regulated under criminal (procedural) law. Such measures are intended to prevent the accused or his accomplices from violating the witness’s physical integrity in the courtroom and, in some cases, from revealing the witness’s identity. Other measures, which include anonymous witness statements or testimony behind screens, are not necessary in cases where the trafficker knows the identity of the witness.
• Testimony via video-link
Video-link testimonies, or teleconferences as they are sometimes called, allow witnesses to testify in a location other than the courtroom. Their statement is transmitted in actual time via video-link to the courtroom, where the judge, the defence counsel and the public prosecutor watch and listen to the transmission and can ask question of the witness. The room where the witness is testifying can be a separate room in the court building or in different location.

This method protects the witness from direct confrontation with and intimidation by the accused. It creates physical distance between the witness and the accused and thus an environment where the witness feels secure enough to testify. It does not, however, prevent the accused from recognizing the witness, as she or he is fully visible to the audience. In cases where it is necessary to guarantee the anonymity of the witness, video-link testimonies can be combined with techniques allowing for the distortion of the image or voice, or both, of the witness.

• Witness Concealment
In some cases, video-link testimonies may not be sufficient to guarantee effective protection for victims testifying against the traffickers. Additional measures may be necessary to avoid the witness being recognized by the trafficker. They could include video-linked testimonies combined with image- and/or voice-altering devices, or testimonies in the courtroom behind an opaque shield.

Some precautions must be taken to prevent such measures from interfering with the rights of the accused to a full defence and a fair trial. If the witnesses are not directly visible, the judge and the defendant may not able to assess the witness’s reactions to questions and consequently may not be able to assess their credibility fully. On the other hand, important evidence may be lost because witnesses may not be willing to testify when their image is visible and their identity revealed to the accused. It is necessary to balance carefully the rights and interests of the endangered witness and those of the accused.

Protection after trial involves many different authorities, including law enforcement, the judiciary, immigration services, labour authorities, civil register authorities and prison services. After the trial, the role of non-governmental organization providing victim support services is often crucial.

• Public trial and cross-examination of witnesses in open court: Indian Laws
Section 327 of Cr.Pc provides for trial in the open court and 327(2) provides for in-camera trials for offences involving rape under sec.376 of IPC and under Sec.376A to 376D of the IPC. In certain provisions of IPC and Evidence Act that requires the evidence to be taken in the presence of the accused. But in certain exceptional circumstances an accused may be denied his right to cross-examine a prosecution witness in open court. Further, under Section 173(6) the police officer can form an opinion that any part of the statement recorded under sec.161 of a person the prosecution proposes to examine as its not essential in the interest of justice or is inexpedient in the public interest. Likewise, some provisions of laws prohibits publication of the name, address, and other particulars which may lead to the identification of juvenile or other accused. In certain exceptional cases, where cross examination is not possible, previous deposition of the witness can be considered that relevant in subsequent proceedings.

• Protection of Identity of Witnesses v. Right of Accused: Principles of law developed by the Supreme Court and the High Courts.
In the pre-Maneka Gandhi phase the Supreme Court, in Gurbachan Singh v. State of Bombay , upheld a provision of the Bombay Police Act, 1951 that denied permission to a detenue to cross-examine the witnesses who has deposed against him. It was held that the law was only to deal with exceptional cases where witnesses, for fear of violence to their person or property, were unwilling to depose publicly against bad character. At this stage, the issue was not examined whether the procedure was ‘fair’. The decision in G.X. Francis v. Banke Bihari Singh and Maneka Sanjay Gandhi v. Rani Jethmalani stressed the need for congenial atmosphere for the conduct of a fair trial and this included the protection of witnesses. In othercases, the Supreme Court upheld that the discretion to the designated court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the court and to withhold the name and addresses of witnesses in its order.

The right of the accused to cross-examined the prosecution witnesses was not absolute but was subject to exceptions. The same reasoning was applied to uphold the validity of sec. 30 of the Prevention of Terrorism Act, 2002 (POTA) in People’s Union of Civil Liberties v. Union of India . In Delhi Domestic Working Women’s Forum v. Union of India , the Supreme Court emphasised the maintenance of the anonymity of the victim of rape who would be the key witnesses in trials involving the offence of rape.

In the context of the collapse of the trial on account of witnesses turning hostile as a result of intimidation, the Supreme Court reiterated that “Legislative measures to emphasize prohibition against tampering with witnesses, victim or informant, have become the imminent and inevitable need of the day.” Although, the guidelines for witness’s protection in the manner in which the identity of the witness can be kept confidential either before or during trial. The Judgment of the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa, which provides for protection of the witness from the media, does not deal with all the aspects of the problem. These Judgments highlights the need for a comprehensive legislation on witnesses protection.

Conclusion
The core objective of the study was to focus upon the problems faced by the witnesses in their interaction with criminal justice system. Besides, a comprehensive view has also been taken in this exercise to examine the issue of witness hostility. The present study attempted to take a comprehensive view concerning the issue and problems of witnesses. The focus of this research has been on the following four areas:
1. Problems of witnesses at various levels.
2. Hostility of witnesses.
3. Protection of witnesses.
4. Assistance of witnesses.
Witness is one of the most important constituents of justice. He is one of the most important sources of information in discovering the truth about the case, but the pain and troubles he has to undergo to help the court is a lot as well. By giving evidence the witness helps the courts to give correct judgment and justice. The witnesses have the danger of their lives as well as that of their families. They have the danger of their properties as well. They have to undergo lot of discomfort when they come to give evidence. Even after doing all this they do not get anything in return. Therefore, it can be clearly seen that the courts are negligent in the way they treat the witnesses.
Witness protection should take place and already various steps have been taken toward it. Many countries like, Canada, New Zealand, Australia etc. have a well-developed mechanism for witness protection. These mechanisms may encourage even more witnesses to come forward to give their evidence for the greater good. Witnesses therefore should be shown the respect and gratitude which they actually worth of. The problem of perjury also prevails and it depends upon the witness himself to stop it. Otherwise it can contribute to the wrong person being convicted while the true criminal and a perjurer walk on the streets in freedom.

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Introduction
India is the World’s largest democracy. But unfortunately, over the period of the time its glow is decreasing because of defective criminal justice system. Therefore, we are in that period of time, there is need to again reconstruct and reformulate the justice system to address the challenges of the present day. Because of strong spur in demand of justice. There are some loop holes which makes the development of various techniques & strategies that can be effectively incorporate into the policy framework. Therefore, to study the criminal system better it is worth examine the object of the criminal justice system.
MOTO OF THE CRIMINAL JUSTICE SYSTEM
The object of the criminal justice system is to provide public justice, to punish the criminal and to see that the trial is concluded speedy before the memory of the witness fades out. The criminal trial is not just only doing the justice with the accused but also with the victim and society. So,from it law and order is maintained. A judge does not preside over a criminal trial is to see that no innocent man is punished, but also to see that the guilty man does not escape. Both are the duties of judge is that to provide equal justice.
Hence, the courts perform his duty to try to maintain the public faith of the people in administration of the justice by making the concept of the human rights in administration of the justice.
BASIC NEED TO REFORM IN CRIMINAL JUSTICE SYSTEM
In today’s era, Change is constant but even in that changing phase of the society “criminal justice system” of India is yet to improve and to slow also. These all are the reason of the lack of
accountability, ineffective enforcement of the law, and delay in disposal of the cases, lack of
trained police, an overburdened court system and Poor prison conditions. The main are the
significant problems in the criminal justice system. In India, the administration of criminal
justice system follows the Anglo Saxon- adversarial pattern it has three vital units, commanly
a) Police
b) Judiciary
c) Prison

COMPONENTS OF THE CRIMINAL JUSTICE SYSTEM: PRESENT SCENARIO

I. POLICE

Police, being a first segment of the criminal justice system, have a very
Important role in administration of the justice. Therefore, for understanding the criminal justice
system is to begining of understanding the police. Under Article 246 The Constitution of India
places the police, public order, courts, prisons, reformatories, and other allied institutions in the
State List.3. Now the next visible question towards is, that how to make answerable to police?
Which is essential part of the Indian Criminal Justice system? Is following section of this article we
Will conclude this problem.
Accountability of police

Indian police Act of 1861, is outdated law which, made in regime of the
colonial system with the aim is to detain the people. Unluckily, instead of the
regular demand of The National Police Commission, Indian government is not ready to do any change in this colonial law. Further, in the Police Act, 1861 there is not any such provision of the accountability of the police distinct in the UK, in which the Independent Police Complaints Commission (IPCC) having a duty to supervises and investigates public complaints against the police and can take over the supervision or investigation of any complaints case4. Whereas in Indian Police Act, is lacking in this aspect. It can be clearly evident from the issues involving the ferocity of the police which come before the court some are as follow:
Central Bureau of investigation v. Kishore singh and others5
In instant case Hon’ble Justice Markandey Katju stated that, what should be done to
policemen who “Bobbitt” a person in police station and think that they can get away it? That is
the question decided in the case. Court held that in our opinion, policeman who commit
criminal act deserve harsher punishment that other person who commit such act, because it is
duty of the policemen to protect the people, and not break the law themselves. If the protector
becomes the predator civilized society will cease to exist. As the Bible says, “If the salt has
lost its flavor, wherewith shall it be salted?”Or as the ancient Roman used to say “who will
guard the praetorian guards?”
Hence, the police are supposed to protect the people and uphold the law, but if they themselves
become criminals, then it’s a difficult task to ensure the protection of the human rights.
Mehboob Batcha and others v. state represented by superintendent of police Judges
Markandey Katju and Gyan Sudha Mishra .
In instant case Supreme Court held that, as murder by policemen in police custody is rarest of
rare case. They deserve for death penalty and we give a warning to all country that this will not
be tolerated. Further, court upheld that custodial violence in police custody is in violation of
this court’s directive issued in D. K. Basu v. State of WB,
A.S. Mohammed Rafi v. state of the Tamilnadu 7
In instant case court granted 1.5 lakhs compensation to the victim for police custodial death.
However, apart from the above cases, one of the most engrossing and passionately debate is the
illegal and arbitrary arrest by police person. Therefore, it is, important to document, study and
analyse some case laws in this regard.

Judiciary view on Arbitrary arrest and illegal detention
The power of the police to arrest is also often very badly abused. This can be further studied by
following cases.
There are lots of the cases where Apex Court directed various guide lines regarding the
arrest for example in D.K Basu v. State of West Bengal8 in instant case court smoothen the
procedure relating to the arrest. Court reiterated in this case that, protection from arbitrary
arrest is flow from Article 21 and 22 (1) of the constitution and are to be enforced in a strict manner .
The Supreme Court in Joginder Kumar v. State of the U.P.9 has put clear cut restrictions on the powers of police to make arbitrary arrests. The above cases are really, a paltform of breaking judgments. Therefore, it is high time to look into the power of the President provided in Art. 372 (2)10 of the India Constitution. Which provides the President to amend the law in compliance with the Constitution?

II JUDICIARY

The judiciary has a very important role in implementation of rule of law. The primary
Duty of judiciary is to protect as well as to enforce them also and provide the relief to the victim. Such duty and obligation is mandatory for a democratic Country. The present criminal justice system in Indians courts is basically to give more attention to the accused and try to protect all his/her rights i.e boldness of the innocence, legal right against arrest, and double Jeopardy etc. no doubt accused are entitled of all these rights but now in changing situation, it is also expected from the courts focus upon the Victim as well as witness.
Role of the court during the criminal proceeding: Ensuring the kind condition of the
investigation
Here the relevant question is that, what should be the role of court in recreation of the
criminal justice system? Because we already discussed that, it is the Judiciary which has a important role in implementation of rule of law. Further, it is notable that, there are some legal provisions in legislation itself, the proper discern of which can bring the rememberable change in the area of the criminal Justice system. The analysis of such provisions dealt in the following section of the article.

1. Restrictions on the power of the arrest
The criminal Procedure Code, 1908 confers very fairly excluded powers of the arrest mainly to the
police in various Sections i.e Sec. 41, 42, and 151 of the code. There are a lot of the
instances, which reflects how the police officers are misusing this power? Therefore, the
concept of the arrest procedure must be followed from Art. 21 and 22 of the Constitution of India.
Hence, it is the duty of the magistrate to make satisfy himself in all the requirements of the arrest has been fulfilled. A new Section 436-A of the Cr.P.C. which deals with the “Maximum period for
which an under trial prisoner can be detained”. The purpose of this Section is to make sure the
human rights of the arrested person. Now it is up to on judiciary for full discern of this
right. Moreover, the court should consider the Section 310 of the Cr.P.C. this runs as
follow:
“Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after
due notice to the parties, visit and inspect any place in which an offence is alleged to have
been committed,………. Inspection”
Therefore, it is clearly evident from the above Section that magistrate has an limited amount of
power for proper realization of human rights at any stage of any inquiry.

2. Limitation on the adjournment of the cases
This is also one of the major factors of having delay in disposal of the cases. However, there is express prohibition on adjournment more than three times (Order XVII, Rule1 of the Civil procedure code, 1908), but still in practice there is no serious concern about it. Therefore, all the Courts should keep in mind all this provision to ensure the early disposal of the cases.
3. Judge should be sensitize:
There is need that Judges should take a more active role in the administration of the justice.
They can use their discretion in the process where they found necessary in interest of the
justice. There are some judges who disqualify themselves from advancing the criminal justice
system because they have old fashioned attitude. The old fashioned judge looked to the letter
of the statute and their believe is that, justice can only be done according to strict interpretation
of the law. That is why judges should look out through the window in order to see the effects of
their judgment on the ordinary men and women. Therefore, justice does not reside in the
judge’s intellect only. It also resides in his heart. It is the combination of the heart and the brain
that result in justice.11 Therefore now a day’s criminal justice reform is a matter of the serious
concern, and for effective enforcement of it activeness of judges is very much required.
4. Due care and causation in case of the bail application and remand order
At the outset there is not any hard and fast rules regarding the grating and rejecting the bail. Each case should be decided in the light of their own facts. But it should be decide for judicious exercise of the discretion of the courts. In Cr.P.C Section 436 provides the law relating to bailable offences. Similarly, Sec. 437 dealing with non-bailable offences. Now it is the duty of
the courts and a total discretion to take care of due caution and care while granting and denying the bail.
5. Power to grant the Remand
Under Section 167 of the Cr.P.C. Magistrate is empower to grant the remand either in police or
Judicial custody, for a period not exceeding fifteen days at a time (in case of police custody,
only for initial fifteen days). Judicial authorization of restraint amounts to decrease of
personal liberty and, therefore, due caution should be exercised while authorizing detention of
an accused in police or judicial custody on production of the accused. Therefore, it is mandatory for the magistrate to examine the case diary as well as all the material fact before granting the
order.
Case Study:
 Joginder Kumar v State of the UP12
There are some guidelines laid down by the courts:
• An arrested person being held in custody is entitled, if he so requests to have one
friend relative or other person who is known to him or likely to take an interest in his
welfare , told as far as is practicable that he has been arrested and where is being
detained.
• The police officer shall inform the arrested person when he is brought to the police
station.
• The entry should be requiring to be made in the diary as to who was informed of the
arrest. This protection from power must be held to flow from Art 21 and 22 of the Indian Constitution.
 Nahar Sing Yadav and another v. Union of India and others. In instant case court
held that “a true and fair trial is sine qua non of Article 21 of the constitution.
Therefore, it can be clearly documented from this case, that court should take care and
caution at every step of the administration of the justice.
III. PRISON
Violation of the right’s of the prisoners:
The condition of the prisoners remained disgraceful in the India. The law enforcement staff were responsible for widespread violation of the human rights in including the arbitrary need of the life in alleged encounters, deaths in custody and indiscriminate use of the firearms. According to the national crime records Bureau of the Government of the India, eight persons died in the custody and 42 civilian died in police firing during 2005. Besides, at least 87 persons were killed in alleged encounters between January and March 2005 alone, while the figure stood at 238 in 2004 and 214 in 2003.14 Therefore, it is said to be the duty of all Courts to make regular visit as well as the surprise visit of the prison to ensure the human condition of the prisoners.
SUGGESTIONS:
There are some suggestions which are very essential to ensure the criminal Justice Reform i.e.
1. There is need of periodically visit and inspection of Courts.
2. At present there are a lot of cases pending in the courts and unfortunately, there is no proper data in this regard and moreover, Supreme Court and High Courts do not publish any annual administration report in reference to the pendency of the cases and all such details regarding the cases.
3. Now the another missing part is sanction of the government (Sec.197) before prosecuting the public servant in Section 166 of the I.P.C. it creates a great impendiment in exercise of the power under section 166 of the Indian penal code. Therefore, its need to be withdrawn. Even National police Commission 1979-1981 in its 8th Report recommend the withdrawal of Sec. 132, 197 of the Cr.P.C.
4. It is the parody that most of the law existing today are outdated, it is seen that the punishment prescribed under the laws are as nominal and paltry as not to have any impact on the crime situation. The Police Act, 1861is example of this.
5. The cases must be assigned according to the specialization of person. It also recommended by the Malimath Committee (24th November 2000) that allotting cases without considering specialization result in delay in decision of the cases.
6. There is need to worse the political influence because, the Police Act, 1861 bestow the superintendence of the police directly in the hands of the political executive i.e the state government. At the present time, the Head of Police (Director General/ Inspector General) enjoys her/his tenure at the pleasure of the Chief Minister. he/she may be removed from the post at any time without assigning any reasons. Such a state of affairs has resulted in wide-spread politicization of the police and if this happens then we cannot say this is proper democracy.
So last but not least in the light of human Rights jurisprudence some innovative revision
and amendment is needed and some provisons also be brought to make it better and makes our country better.

– Author -Mukul

– Co Author -Chanchal

-College -Geeta Institute of Law, Panipat

– Class – BA.LL.B (5.3)

INTRODUCTION

Section 498(a) is part of Indian Penal Code (IPC) which prevents cruelty against women by her husband, in-laws or by any relative of her husband. Cruelty to women under this section is done to obtain dowry from her family which leads to any of these-:
• Sexual harassment
• Physical Harm
• Depression leading to suicide
Under this law if woman files suit against her in-laws including husband then, without any investigation or evidence police can arrest them.
But in recent cases it’s been noticed that women file many false suits in order to get false compensation or to take vengeance from in-laws.
That’s why court amended that after full investigation and evidence only husband will be arrested instead of whole in-law family.

Amendments in 498(A) By Supreme Court of India

Section 498(a) of Indian constitution provides shield to women from cruelty because of dowry. It protects women from their husband’s, in-laws’ and husband’s relatives’ cruelty to obtain dowry from women and their family .But in recent yrs. it’s observed by Hon’ble Supreme Court of India that women are misusing this section as weapon to obtain false compensation rather than using it as a shield.
In recent case of Rajesh Sharma and others V/S State of UP -:a three judges bench of supreme court of India including Hon’ble retd.CJI DIPAK MISRA gave judgement that in these type of cases there should be first investigation of society welfare committees and there report should be submitted to dist. Court and until then till report is submitted offence is boilable not permanent and against whom suit is filed only that person will be arrested instead of whole family of in-laws wither it’s only husband or a particular individual in-law.

Sexual harassment
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature when either:
• The conduct is made as a term or condition of an individual’s employment, education, living environment or participation in a University community.
• The acceptance or refusal of such conduct is used as the basis or a factor in decisions affecting an individual’s employment, education, living environment, or participation in a University community.
• The conduct unreasonably impacts an individual’s employment or academic performance or creates an intimidating, hostile or offensive environment for that individual’s employment, education, living environment, or participation in a University community.
Sexual harassment is defined by law and includes requests for sexual favours, sexual advances or other sexual conduct when (1) submission is either explicitly or implicitly a condition affecting academic or employment decisions; (2) the behaviour is sufficiently severe or pervasive as to create an intimidating, hostile or repugnant environment; or (3) the behaviour persists despite objection by the person to whom the conduct is directed. The University considers such behaviour, whether physical or verbal, to be a breach of its standards of conduct and will seek to prevent such incidents and take corrective action when sexual harassment occurs.

Types of Sexual Harassment
Generally speaking, there are two types of sexual harassment, “quid pro quo” and hostile environment.
Quid pro quo (meaning “this for that”) sexual harassment occurs when it is stated or implied that an academic or employment decision about a student or employee depends upon whether the student or employee submits to conduct of a sexual nature. Quid pro quo sexual harassment also occurs when it is stated or implied that an individual must submit to conduct of a sexual nature in order to participate in a University program or activity. So, for example, if an employee is made to believe that a promotion is likely if the employee goes on a date with the employee’s supervisor, the employee is possibly being subjected to “quid pro quo” sexual harassment.
Hostile environment sexual harassment occurs when unwelcome conduct of a sexual nature creates an intimidating, threatening or abusive working or learning environment or is so severe, persistent or pervasive that it affects a person’s ability to participate in or benefit from a University program or activity. While a person engaging in harassing behaviour most often has some form of power or authority over the person being harassed, that is not always the case. The harasser can be a peer of the person being harassed. Sometimes the harasser is harassing a person who has power over them. For example, a supervisee can sexually harass a supervisor or a student can sexually harass a faculty member.

Physical Harm
‘Physical harm’ means any no accidental trauma, injury, or condition, including inadequate nourishment that, if left unattended, could result in death, disfigurement, illness, or temporary or permanent disability of any part or function of the body, including inadequate nourishment. The trauma, injury, or condition may also be the result of a single episode or several episodes.
According to 6 CFR 25.2 (Title 6 – Homeland Security; Chapter I – Department Of Homeland Security, Office Of The Secretary; Part 25 – Regulations To Support Anti-Terrorism By Fostering Effective Technologies), The term “physical harm” as used in the Act and this part means any physical injury to the body, including an injury that caused, either temporarily or permanently, partial or total physical disability, incapacity or disfigurement. In no event shall physical harm include mental pain, anguish, or suffering, or fear of injury.

Depression leading to suicide
Everyone feels down at times. The breakup of a relationship or a bad grade can lead to low mood. Sometimes sadness comes on for no apparent reason. Is there any difference between these shifting moods and what is called depression? Anyone who has experienced an episode of depression would probably answer yes. Depression, versus ordinary unhappiness, is characterized by longer and deeper feelings of despondency and the presence of certain characteristic symptoms (see below). This distinction is important, because in severe cases, depression can be life threatening, with suicide as a possible outcome. Depressed people may also fail to live up to their potential, doing poorly in school and staying on the social margins. Depression is frequently ignored or untreated; the condition often prevents people from taking steps to help themselves. This is unfortunate, as effective help is available.
There is growing evidence that depression is in part an illness with a biological basis. It is more common in individuals with close relatives who have been depressed. Research on the physiology of the nervous system suggests that the level of activity of neurotransmitters, such as norepinephrine and serotonin, changes in longstanding depression: Antidepressant medicines probably work by correcting a “chemical imbalance” of this kind. One type of imbalance is associated with bipolar disorder (previously called manic depression), characterized by dramatic mood swings from depression to irritability or euphoria and other symptoms. A number of physical illnesses can also lead to depression: An examination by a medical clinician may be helpful to rule out medical causes of depressive symptoms.
While depression does appear to have biological components, it is certain that psychological and social factors also play a vital role. The loss of a loved one or a disappointment may trigger a depression; past losses, perhaps not fully acknowledged, often make someone more vulnerable to depression. For complex reasons, some individuals find themselves enmeshed in negative ways of thinking, which can contribute to depression. Other environmental components are a lack of social support and the absence of avenues for fulfilment.

Meaning of Cruelty
It was held in ‘Kaliyaperumal vs. State of Tamil Nadu’, that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. The two sections are not mutually inclusive but both are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC. The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well. Under section 498-A of IPC cruelty by itself amounts to an offence whereas under section 304-B the offence is of dowry death and the death must have occurred during the course of seven years of marriage. But no such period is mentioned in section 498-A.
In the case of ‘Inder Raj Malik vs. Sunita Malik’ , it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.
Kinds of cruelty covered under this section includes following:
(a) Cruelty by vexatious litigation
(b) Cruelty by deprivation and wasteful habits
(c) Cruelty by persistent demand
(d) Cruelty by extra-marital relations
(e) Harassment for non-dowry demand
(f) Cruelty by non-acceptance of baby girl
(g) Cruelty by false attacks on chastity
(h) Taking away children
The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A.

Sec 498A and the Allegation of Misuse
In the last 20 years of criminal law reform a common argument made against laws relating to violence against women in India has been that women misuse these laws. The police, civil society, politicians and even judges of the High Courts and Supreme Court have offered these arguments of the “misuse’ of laws vehemently. The allegation of misuse is made particularly against Sec 498A of the IPC and against the offence of dowry death in Sec 304B. One such view was expressed by former Justice K T Thomas in his article titled ‘Women and the Law’, which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a “general complaint” that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused. It is important therefore that such “arguments” are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women.
Domestic violence and abuse by spouses and family members are complex behaviours and the social organisation of courts, the police and legal cultures systematically tend to devalue domestic violence cases. Sec 498A was introduced in the IPC in 1983 and the reforms of the past 20 years have not been adequately evaluated at all by the government with respect to their deterrence goals, despite the institutionalization of law and policy to criminalise domestic violence. A program of research and development is urgently required to advance the current state of knowledge on the effects of legal sanctions on domestic violence. The narrow or perhaps almost negligible study done by law enforcement agencies about the deterrent effects of legal sanctions for domestic violence stands in high contrast with the extensive efforts of activists, victim advocates and criminal justice practitioners in mobilising law and shaping policy to stop domestic violence. It is important to do these studies to correct the general misconceptions that women are misusing the law by filing false cases against their husbands and in-laws in order to harass them and get them convicted. The perspective of the state and its agencies needs to change from that of protecting the husbands and in-laws against potential “misuse” of the laws of domestic violence to that of implementing their purpose.

Misuse of Section 498 (A) in Modern World

A violation of this section, its goals and its aims is on the rise with the woman
frivolously making false allegations against their husbands with the purpose of getting rid of them or simply hurting the family.
The abuse of this section is rapidly increasing and the women often well- educated know that this
section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.
Like in the case of Savitri Devi v Ramesh Chand & Ors, the court held clearly that there was a
misuse and exploitation of the provisions to such an extent that it was hitting at the foundation of
marriage itself and proved to be not so good for health of society at large. The court believed that
authorities and lawmakers had to review the situation and legal provisions to prevent such from
taking place.
This section was made keeping in mind protection of the married woman from unscrupulous
husbands but is clearly misused by few women and again this is strictly condemned in Saritha v R. Ramachandran where the court did notice that the reverse trend and asked the law Commission and Parliament to make the offence a non-cognizable and bailable one. It is been a duty of the court to condemn wrongdoings and protect the victim but what happens when the victim turns into the abuser? What remedy does the husband have here?
On this ground, the woman gets to divorce her husband and re-marry or even gain money in the
form of compensation.
Many women rights’ groups go against the idea of making the offence a non-cognizable and
bailable one thinking that this gives the accused a chance to escape conviction. But what this would do is that it would give a fair chance to the man and above all help.

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