Rights of victims

A victim of crime is any person, who, whether individually or collectively, has suffered any harm, whether physical, mental, emotional through acts or omissions of criminal law. A victim of a crime suffers loss which may be to his body, property or reputation or to his fundamental rights. A victim of a crime may also be subjected to subsequent abuse of power by the law enforcement agencies or also threats by the powerful culprits.
The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defined the meaning of the term 'victims' and also laid down various guidelines for providing assistance, guidance and help. The declaration stated that victims should be treated with compassion and provided with necessary guidance and counselling. It also laid down provisions regarding fair access to justice and providing compensation and restitution to the victims.
Rights of victims:
(1) right to fair access to justice
A victim has a right to free access to justice. He has a right to have his complaints registered and proper action be taken on them. He has a right to know the time and place of hearings. He has a right to be a witness. He also has a right to protection from threats and be provided with safeguard to him and his family from potential dangers from powerful antagonists. The safety of his witnesses should also be ensured.
(2) right to compensation
A victim has a right to be compensated for the loss suffered by him and his family. Section 357 CrPC provides for compensation to the victim from the person convicted for the offence that lead to the damage. Section 5 of the Pribation of Offenders Act, 1958, also provides for compensation to the victims of crime. Under Article 300 of the Constitution of India, compensation is also provided to the victims of tortious acts by the employees if the State. Nilabati Behera, Saheli, Chandrima Das, etc are important cases decided by the Supreme Court where compensation was given.
(3) right to restitution
Restitution means to restore back. A victim has a right to get his damaged property restored to its oiginal state or else replaced where restoration or return is not possible.
(4) right to assisance
A victim of crime needs to be treated with compassion. He may be provided with necessary medical, psycological or emotional counselling to restore his self worth. He may be provided with necessary assistance for rehabilitation.
Thus, a victim of crime has been provided with a number of rights both under the national and international laws to help him get justice and also to restore his physical and material condition. He is provided with necessary assistance for rehabilitation and also to restore his dignity.

Theories of crime causation

Since the early times sociologists have tried to find the reason behind certain acts that are revolting to the human sensibilities, acts that are crimes or deviances. Earlier society attributed crimes to evil spirits that come and take over the control of a man's mental faculties. Lead by religious superstitions, the early society sought the help of godmen and rituals to cleanse a person from his evil tendencies. As the civilization progressed slowly sociologists tried to relate crime with the personality of the offender. A number of theories were put forward to define crime as well as criminal liabilities. The various theories of crime causation are as follows.

(1) biological theory
Cesare Lombrosso was the first person who tried to separate crime and its causes from religious superstitions. He believed that criminals are born with criminal tendencies and have certain physical features that are different from normal individuals. He measured the sizes of heads of prisoners and noted that criminals have certain 'abnormal' features that meke them feel inferior and thus are helpful in identifying as to which individuals are likely to commit crimes. However, this theory had the drawback that it did not take into consideration a person's psychology.

(2) psychological theory
The psychological theories rested criminal liability on the mental elements, the presence of motive to commit a crime. They took into consideration the criminal's psychology and mental capacity in placing criminal liability upon him.
Sigmund Freud gave his theory of a man's conscience being comprised of three parts, id, ego and superego, with id being identical to the inherent sub-conscious selfish desires of man. Ego is that part of a person's psychology that develops as a baby grows up and undestands his needs while superego develops from control that he experiences from his contact with his parents and primary caregivers. A person whose id is more pronounced than his superego has greater tendency of committing crime while one whose superego is more dominant turns out to be shy and introvert. A person may have a weak superego if he comes from broken families, is an orphan or whose parents are also criminals. A balance between the id and superego is essential for maintaining a normal, healthy life.
The question of criminal liability of a lunatic person was dealt up in M'Naughten's case and it was observed that a person who is normally lunatic but occassionally normal will be held liable for acts committed during his lucid interval. Whereas a person who is generally normal and occassionally lunatic will be exempted from liability for acts committed at the time when he could not be able to understand the nature of his acts. The criminal liability depends upon the mental condition of a person at the time of commission of the crime. If a person was capable of judging the nature and consequences of his act, then he will be deemed liable for the same.

(3) sociological theory
By his theory of Differential Association, Sutherland pointed out that criminal behaviour is not inherent but learnt from contact with criminals. He pointed out the impact depends upon the duration and intensity of such contact, who is the person influencing the psychology. According to this theory, a person can acquire criminal tendencies from contact with wrong individuals in the same manner as a person can learn good habits from living with virtuous individuals. 

(4) economic theory
William Bonger and Karl Marx were of the opinion that crime rate is directly proportional to the poverty levels in the society. They were of the opinion that crimes are committed by the poor because if the economic disparity in the society. They blamed the capitalistic society for increasing the economic gap as well as crimes. However, this theory failed to explain the rising crimes in socialistic countries and also economic offences like white collar crimes.

(5) multiple causation theory
According to the multiple causation theory, no one reason can be given for criminal tendencies. It stated that a medley of a variety of factors such as motility, economic, biological, psychological, social contact, conditions of living, family background, politics, religion, geographical conditions, together lead to criminal behaviour.

Recent controversies in patent law

Intellectual property law deals with providing safeguard from pilferage of a man’s creations. It is divided into patents, copyrights, trademarks, and copyright in design and so on. The protection of one’s intellectual property not only ensures that only the creator shall get the rewards of his labour but it also encourages further development of the product.

Patents are awarded either for a product or a process, i.e., either for an entirely new physical object or for a novel way of creating something. Thus, there can be a patent for a machine or on a medicine or on a particular method of its preparation.

Medicines- Supreme Court of India

The Supreme Court of India rejected the Novartis drug patent and upheld the view that under Indian Patent Act for grant of pharmaceutical patents apart from proving the traditional tests of novelty, inventive step and application, there is a new test of enhanced therapeutic efficacy.

Human genome-Supreme Court of United States

The US Supreme Court held that human genome cannot be patented because it is found naturally in the human body and just because it has been extracted does not make it patentable item. The court observed that DNA is a product of nature and not subject to patent.

Established sexual relationship equals to marriage

While there might be a debate on whether marriage is a civil contract or a sacrament or something in between, under the present legal scenario, marriage is a form of legalised sexual relationship that establishes paternity and inheritance. In certain tribes, living together constitutes a valid marriage and for every region there is a different set of formalities constituting marriage, some may have pheras while for others just exchanging rings or garlands is sufficient. In short, the ceremony of marriage is just the recognition by society of the beginning of a relationship and it may or may not constitute of ceremonies. While the Supreme Court has laid down what constitutes a valid Hindu marriage, Muslim marriage is offer and acceptance and Christian marriage, a public declaration along with exchange of rings. A civil marriage is also a consensual acceptance of the relationship in a court of law. The importance of sex in marriage has already been pointed out in 2012 by the Supreme Court while stating that it is the primary condition. However, the recent judgement of Madras High Court stating that consensual sex between competent parties (parties who have come of legal age for sex) is equivalent to marriage and either party can get it registered is not altogether a solution. While on one hand it raises a doubtful condition regarding adultery, bigamy, incest and prostitution, on the other, it will incite moral police. Further, it is not sure what documentary evidence can be provided for such relationship. The judgement cannot be said to be compatible with the social realities. Still, it raises an important issue especially at the time when brides were subjected to virginity and pregnancy tests in the state of Madhya Pradesh, even though premarital sex is not taboo in certain tribes of that region.

Child labour

A child is any person who has not yet attained the age of majority. Child labour is defined as the employment of children in such a work that deprives them of their childhood and affects their overall development. Child labour is mentally, physically, morally dangerous. A child labour may be subject to physical and emotional harassment. He may be a part of bonded labour or slavery. A child labour may be employed in any industrial, commercial or domestic establishment. Child labour is rampant in developing and under-developed nations where it provides cheap labour as compared to adult labours. A child maybe employed to work for 12 hour shift that seriously endangers his health and future.

Article 24 of the Constitution of India states that: No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause ( 7 ); or such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause ( 7 )

In the case of People’s Union for Democratic Rights v Union of India[1], it was observed by the Apex Court that “So far as Article 24 of the Constitution is concerned, it embodies a fundamental right which is plainly and indubitably enforceable against everyone and by reason of its compulsive mandate, no one can employ a child below the age of 14 years in a hazardous employment and since, as pointed out above, construction work is a hazardous employment, no child below the age of 14 years can be employed in construction work and therefore, not only are the contractors under a constitutional mandate not to employ any child below the age of 14 years, but it is also the duty of the Union of India, the Delhi Administration and the Delhi Development Authority to ensure that this constitutional obligation is obeyed by the contractors to whom they have entrusted the construction the construction work of the various Asiad projects.”

Other legislations:

1.The Factories Act, 1948 prohibits the employment of a child in any factory who has not completed 14 years of age. (Section 67)

Section 67: Prohibition of employment of young children. No child who has not completed his fourteenth year shall be required or allowed to work in any factory.

2. The Child Labour (Prohibition and Regulation) Act, 1986, lays down the provisions regarding prevention of instances of child labour in India in order to prevent economic exploitation of children as well as to safeguard their health and safety. Child Labour (Prohibition and Regulation) Act, 1986 deals with child labour in the following manner:

(i) bans the employment of children under 14 years of age in specified occupations and processes

(ii) regulates the conditions of work of children in employment where they are not prohibited from working

(iii) lays down enhanced penalties for employment of children in violation of the provisions of this Act.

In the case of M.C. Mehta v State of Tamil Nadu[2], the Supreme Court has laid down elaborate guidelines to curb child labour. In this case, the employment of children in match stick and cracker factories was considered to be employment in hazardous factories.

3. The Mines Act, 1952 provides that no child shall be employed in any mine. Further, it provides that no child shall be allowed to be present in any part of the mine which is below the ground or in any cast working in which a mining operation is being carried out.

Section 45: Prohibition of the presence of persons below eighteen years of age in a mine. Subject to the, Provisions of sub- section (2) of section 40, after such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, no person below eighteen years of age shall be allowed to be present in any part of a mine above ground where any operation connected with or incidental to any mining operation is being carried on.

4. Section 14 of The Beedi and cigar workers (Conditions of Employment) Act, 1966, prohibits the employment of children below 14 years of age in any industrial premises manufacturing beedis or cigars.

5. The Juvenile Justice (Care and Protection) of Children Act of 2000 makes it a crime, punishable with a prison term, for anyone to procure or employ a child in any hazardous employment or in bondage.

On 9th of April 2013, the Punjab and Haryana High Court[3] gave landmark order on the writ-petition (PIL CWP 2693 of 2010) moved by Hemant Goswami. The court, accepted all the contentions and suggestions put forward by Hemant Goswam and directed that;

 There shall be total ban on the employment of children up to the age of 14 years, be it hazardous or non-hazardous industries.

 There shall be no forced labour even for children between the ages of 14 years to 18 years; and whenever a child above the age of 14 years is forced to work, it has to be treated as an offence under Section 374 IPC and it is to be dealt with sternly.

 When any matter is brought to the notice of the State Commission (or for that matter suo motu cognizance taken by the State Commission) involving violation of child rights even where a child above the age of 14 year is employed, the State Commission under the CPCR Act will have the jurisdiction to deal with the same and pass necessary directions.

 The violators have to be dealt with effectively and in a speedy manner. Therefore, wherever violations are found, cases under the provisions of Part-IV of the Child Labour Prohibition Act have to be registered without delay in each and every case.

 Wherever the officers fail or neglect to take effective action immediately, apart from taking necessary disciplinary action, action can also be taken, in appropriate cases, under Section 166 IPC against such officers.

 There is also a need for rehabilitation of such children in the society. (Scheme suggested by Hemant Goswami was adopted by the Court, with the following main points; (a) Moving out the child from the exploitative environment (b) Ensuring Education (c) Ensuring Food/Meals/Clothes/ Necessities (D) Penalty/Compensation should be for the benefit of the Child (e) Regular Monitoring)

 The Chairperson of “State Commissions for Protection of Child Rights” should be a person who has been Judge of the High Court and the process of selection of the other six members of the “State Commissions for Protection of Child Rights” should entail issuance of public advertisement for inviting applications, interviewing eligible candidates and recommending a penal of names of suitable persons.

 States of Punjab and Haryana as well as U.T., Chandigarh shall also ensure that the State Commissions become fully functional by appointing Chairpersons and Members.

 Children’s Courts with specialised infrastructure be created.[4]

Child labour is a great menace that robs the majority of the children of their childhood as well as their development and achieving their full potential. It requires a concerted effort from government as well as non-government sectors to finally wipe it off.

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[1] (1982) 3 SCC 235

[2] AIR 1997 SC 699

[3] http://en.wikipedia.org/wiki/Child_labour_in_India

[4] http://en.wikipedia.org/wiki/Child_labour_in_India

Right to privacy

Right to privacy means the right to be let alone. Right to privacy is a fundamental right under the provisions of the Constitution of India. While the right has not been expressly provided, Article 21[1] of the Constitution protects an individual’s privacy. In Kharak Singh v State of Uttar Pradesh[2], the right to privacy was held to be a fundamental right.

In R Rajagopal v State of Tamil Nadu[3], the Apex Court while reconciling the freedom of speech[4] and the right to privacy, observed that the right to privacy has acquired constitutional status. In State of Maharashtra v Madhukar Narayan Mardikar[5], the court upheld the right to privacy of a prostitute. Further in People’s Union for Civil Liberties v Union of India[6], telephone tapping was considered to be a violation of individual’s privacy.

Violation of privacy means an unwanted interference in an individual’s right to the enjoyment of his seclusion, disclosure of his private facts or disclosing information that brings him in negative light.

However, the right to privacy is not absolute but is subject to certain restrictions in public interest[7] especially in respect to national security. The restrictions imposed on the right to privacy are same as those on the freedom of speech and expression[8]. In Mr X v Hospital Z[9], the court observed that the right to privacy can be infringed on the ground of public morality or public interest.

International provisions regarding the right to privacy: Article 12[10] of the Universal Declaration of Human Rights, Article 17[11] of the International Convention on Civil and Political Rights and Article 8 of the European Convention on Human Rights[12] also guarantee an individual’s right to privacy. In Roe v Wade[13], the US Supreme Court upheld the right to privacy subject to certain restrictions on public policy.

Privacy issues in cyber space

Internet is not only a source of information and networking but also a major mode of conducting business. E-commerce and e-governance are slowly forming the backbone of the economy and the community. While online transactions have brought convenience to consumers on the other hand they have also provided platform to companies for gathering information about individual’s preferences.

An individual’s privacy can be infringed by a number of ways:

(1)    Hacking[14]

(2)    Phishing

(3)    E-surveillance[15]

(4)    Emails and websites providing online history

(5)    Voluntarily tendered information

(6)    Loyalty cards and credit cards

(7)    Online shopping

Section 72 of the Information Technology Act, 2000: Penalty for breach of confidentiality and privacy.- Save as otherwise provided in this Act or any other law for the time being in force, any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

The issues of privacy in cyber space are of major concern but at the same time the right to privacy can be curtailed on public or moral issues, for ensuring national security. Maintaining a proper balance between the individual’s interests and national interests is essential in cyber space.

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[1] No person shall be deprived of his life or personal liberty except according to procedure established by law

[2]AIR 1963 SC 1295

[3] AIR 1995 SC 264

[4] Article 19(1)(a)

[5] AIR 1991 SC 207

[6] AIR 1997 SC 568

[7] Govind v State of Madhya Pradesh AIR 1975 SC 1378- the court upheld the order of surveillance stating that the right emanates from the freedom of speech and expression and must be subject to same restrictions.

[8] Article 19(2)- Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

[9] AIR 1999 SC 495

[10] No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

[11] 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

 

[12] 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[13] Jane Roe v Henry Wade, 410 US 113, the right to privacy emanates from the first, fourth and fifth amendment.

[14] Section 66(1) Information Technology Act, 2000: Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

[15] Section 69 of the Information Technology Act, 2000 provides that: If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, riendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.

Vicarious liability

Vicarious liability is the liability of the master for the torts of his servant or agent. The principle "Qui facit per alium, facit per se" means one who acts through another acts himself or that the act of an agent is the act of the principal.

The liability of the employer arises in the following circumstances:

:- if the employer authorises an illegal act, he can be made liable

:- employer is liable for the acts of an independent contractor in cases of strict liability

:- employer is lisble in cases of nuisance

The employer is liable for torts committed in the course of employment and not private wrongs. An act is deemed to be done in the course of employment, if it is either:

(1) a wrongful act authorised by the master, or

(2) a wrongful or unauthorised mode of doing some act authorised by the master.

It arises in the relations of principal and agent, master and servant and partners in a partnership firm.

Doctrine of common employment

A master was not liable for the negligent harm done by one servant to another fellow servant acting in the course of their common employment.

Essentials:

(a) the wrongdoer and the person injured must be fellow servants, and

(b) at the time of the accident, they must have been engaged in common employment.

It was abolished in India in 1951 by an amendment in Employer's Liability Act, 1954.

Vicarious liability of the State

Article 300 of the Constitution of India lays down the tortious liability of the State for the torts commited by its employees. Article 300(1) states that: The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

Under the provisions of this Article, the State has been held liable in cases of accidents(Rooplal v. Union of India,Union of India v. Sugrabai,Baxi Amrik Singh v. Union of India, etc), illegal arrests(Bhim Singh v. State of Jammu and Kashmir), custodial violence and deaths(Peoples Union for Democratic Rights v. Police Commissioner, Delhi PoliceHeadquarters, Saheli v Commissioner of Police, Nilabati Behera v State of Orissa).

Defamation

Defamation is an act whereby injury is caused to the reputation of a person. It is both a tort and a crime and hence recourse can be taken both under the civil and the criminal laws.

Defamation under the law of crimes

Section 499 of the Indian Penal Code, 1860, states that: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the fellings of his family or other near relatives.

Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.- No imputation is said to harm a person' s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful. Illustrations

(a)  A says-" Z is an honest man; he never stole B' s watch", intending to cause it to be believed that Z did steal B' s watch. This is defamation, unless it fall within one of the exceptions.

(b)  A is asked who stole B' s watch. A points to Z, intending to cause it to be believed that Z stole B' s watch. This is defamation, unless it fall within one of the exceptions.

(c)  A draws a picture of Z running away with B' s watch, intending it to be believed that Z stole B' s watch. This is defamation, unless it fall within one of the exceptions.

First Exception.- Imputation of truth which public good requires to be made or published.- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.- Public conduct of public servants.- It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception.- Conduct of any person touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Illustration: It is not defamation in A to express in good faith any opinion whatever resepting Z' s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.

Fourth Exception.- Publication of reports of proceedings of courts- It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.- A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.- Merits of case decided in Court or conduct of witnesses and others concerned. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Illustrations

(a)  A says-" I think Z' s evidence on that trial is so contradictory that he must be stupid or dishonest." A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z' s character as it appears in Z' s conduct as a witness, and no farther.

(b)  But if A says-" I do not believe what Z asserted at that trial because I know him to be a man without veracity"; A is not within this exception, inasmuch as the opinion which expresses of Z' s character, is an opinion not founded on Z' s conduct as a witness.

Sixth Exception.- Merits of public performance.- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no farther.

Explanation.- A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Illustrations

(a)  A person who publishes a book, submits that book to the judgment of the public.

(b)  A person who makes a speech in public, submits that speech to the judgment of the public.

(c)  An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.

(d)  A says of a book published by Z-" Z' s book is foolish; Z must be a weak man. Z' s book is indecent; Z must be a man of impure mind." A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z' s character only so far as it appears in Z' s book, and no further.

(e)  But if A says-" I am not surprised that Z' s book is foolish and indecent, for he is a weak man and a libertine." A is not within this exception, inasmuch as the opinion which he expresses of Z' s character is an opinion not founded on Z' s book.

Seventh Exception.- Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Illustration: A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier- are within this exception.

Eighth Exception.- Accusation preferred in good faith to authorised person.- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject- matter of accusation.

Illustration: If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z' s master; if A in good faith complains of the conduct of Z, a child, to Z' s father- A is within this exception.

Ninth Exception.- Imputation made in good faith by person for protection of his or other' s interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

Illustrations

(a)  A, a shopkeeper, says to B, who manages his business-" Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty." A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

(b)  A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

Tenth Exception.- Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

 

Defamation under the law of tort

Defamation can be slander or libel. Slander is the publication of a defamatory statement in a transient form eg, spoken words or gestures. Libel is representation made in some permanent form, eg, writing, printing, pictures, effigy or statue.

Libel is actionable per se but in case of slander, except in certain cases, proof of special damage is required.

Essentials of demation:

(a) the statement must be defamatory

(b) the said statement must refer to the plaintiff

(c) the statement must be published

When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or the secondary meaning, ie, innuendo, which makes the statement defamatory. When the innuendo is proved, the words which are not defamatory in the ordinary sense may become defamatory.

When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation, even though the person making the statement believed it to be innocent. Publication means making the defamatory matter is made known to some person other than the person defamed, and unless that is done, no civil action for defamation lies.

In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to him.

The liability of the person who repeats a defamatory matter arises in the same way as that of the originator, because every repetition is a fresh publication, giving rise to a fresh cause of action.

Defences:

(a) justification or truth

(b) fair comment

(c) privilege, which maybe either absolute or qualified.

Nuisance

Nuisance is an act that causes injury, danger or annoyance to people. It is divided into public nuisance and private nuisance. It is both a tort as well as a crime. The Indian Penal Code, 1860, makes public nuisance a crime. Section 268 of the Code defines public nuisance as: A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.

Under the law of tort, both public and private nuisance is punishable. Nuisance, as a tort, means an unlawful interference with a person's use or enjoyment of land, or some right over it, or in connection with it.

Public nuisance is interference with the right of public in general and is punishable as an offence.

Essentials of private nuisance:

:- unreasonable intereference

:- interference is with the use or enjoyment of land

:- damage

An act which is otherwise reasonable does not become unreasonable and actionable when the damage, even though substantial, is caused solely due to the sensitiveness of the plaintiff or the use to which he puts his property.

Effectual defences:

(1) Prescriptive right to commit nuisance

(2) Statutory authority

Ineffective defences:

(1) Nuisance due to acts of others

(2) Public good

(3) Reasonable care

(4) Volenti non fit injuria

Sexual offences against children

There is a growing concern about the rising incidents of children being sexually abused and raped. While the number of reported cases is alarming, the fact remains that even a larger number of cases might have been unreported, especially where the perpetrators of the crime are members of the family.

The issue requires to be dealt with a socio-legal frame of mind. While we have laws making child abuse a punishable offence, the law does not seem to be deterrent enough. One of the reasons behind it might be the fact that the implementation is not as desired. There are flaws both at the investigation level as well as at the trial stage. And these should be properly dealt with. Further, the issue of the non-reporting of incidents also poses a problem in the area of implementation and investigation. A strict implementation of laws protecting the rights of children is a need of the hour.

Another issue is the lack of education at the lower section of the society. Further, the fact the children can be subjected to sexual assault is not something that even parents take seriously and that makes children an easy target. There is a need for developing social awareness about the rights of children at all sections of the society. And this should be addressed from various platforms including gram panchayats and other elected bodies, street plays, through mass media and schools and hospitals. Both parents and children should be educated about the right of children to be protected from abuse. A child should be aware that his body is not be touched and such acts should be immediately reported to his parents and guardians. Further, parents and other primary caregivers must be taught to take such complaints seriously. Special attention must be paid to children at foster homes, orphanages and those with special needs. There must be a monitoring system at place to ensure the safety of children.

Developing strong public awareness and public opinion against such offences will also help curb the same.

Marriage (nikah) under Muslim Law

Essentials of marriage

(1)    Proposal and acceptance- marriage becomes complete only when the other party accepts the offer. Essentials- the words conveying proposal and acceptance must be uttered in each other’s presence or in the presence of their agents who are called vakils. The transaction should be completed at one meeting. There must be reciprocity between offer and acceptance. Acceptance must be unconditional. Sunni law requires presence of two male witnesses[1] while there is no such requirement under shia law. There should be free will and consent.

(2)    Competent parties- muslim who is of sound marriage and has attained puberty can enter into marriage. Puberty is the age at which a person can perform sexual intercourse and have children. Guardian’s consent is required in case of marriage of minors, however, the person on attaining puberty has option to repudiate or confirm marriage (khayar-ul-bulugh[2]).

Option of puberty can be exercised by the male by express declaration, payment of dower or cohabitation.

If the option of repudiation is taken, marriage ceases to be marriage. The option can be exercised before attaining the age of 18 years, provided that the marriage has not been consummated.

Age and marriage:

Saghir: age less than 7 years, marriage void

Sariri: between 7 and 15 years, guardian can give consent in marriage. His own free consent is not valid.

Bulugh: over 15 years of age, can give consent in marriage.

(3)    No legal disability-

(a)    Absolute incapacity or prohibition

(i)                  Consanguinity (qurabat)- blood relations- mother, grandmother, daughter, grand daughter, sister(full, consanguine, uterine), niece, grand niece, aunt or grand aunt.

(ii)                Affinity (mushaarat)- wife’s mother or grandmother, daughter or granddaughter, father’s wife, grandfather’s wife, wife of son or grandson.

(iii)               Fosterage (riza)-foster mother or her daughter or foster sister. However, under sunni law, a man can marry his sister’s foster mother, foster sister’s mother, foster son’s sister or foster brother’s sister.

(b)   Relative incapacity

(i)                  Unlawful conjunction- marrying two women so closely related that they could not have intermarried had they been of opposite sexes[3].

(ii)                Polygamy or marrying a fifth wife

(iii)               Absence of proper witnesses (only in sunni law)

(iv)              Difference of religion- sunni male can marry any kitabia

(v)                Woman undergoing iddat

(c)    Prohibitory incapacity

(i)                  Polyandry

(ii)                Muslim woman marrying a non Muslim

(d)   Directory incapacity

(i)                  Marrying a pregnant woman

(ii)                Prohibition of divorce

(iii)               Marriage during pilgrimage

(iv)              Marriage with a sick man

 

Void, invalid and valid marriages

Valid marriage-essential conditions:

(i)                  Proposal and acceptance

(ii)                Free consent

(iii)               Proposal and acceptance must take place at single meeting in front of proper witnesses.

(iv)              Soundness of mind, majority and capacity to give consent

(v)                There should be no impediment to marriage

Void (batil) marriage- there are no legal effects of such marriages and the children born are illegitimate. Void marriages under shia law:-

(i)                  Marriage in violation of absolute incapacity

(ii)                Marriage with wife of another person during that marriage

(iii)               Marriage with one’s own divorced wife during legal bar

(iv)              Marriage prohibited by unlawful conjunction

(v)                Marriage with fifth wife

(vi)              Marriage during pilgrimage

(vii)             Marriage with non muslim

(viii)           Marriage with a woman undergoing iddat

Irregular or invalid (fasid) marriage- (only under sunni law)

(i)                  Marriage contracted without witnesses

(ii)                Marriage with fifth wife

(iii)               Marriage with woman undergoing iddat

(iv)              Marriage with non scriptural woman

(v)                Marriage by an unauthorized person

(vi)              Marriage contrary to the rules of unlawful conjunction

Effect of irregular marriage

Before consummation- there is no legal effect and wife is not entitled to dower

After consummation- wife has to observe iddat, she is entitled to prompt dower and maintenance during her iddat.

Rights and duties of husband and wife under valid marriage

(a)    Mutual rights and duties

(i)                  Inheritance right

(ii)                Sexual intercourse

(iii)               Prohibited degrees of relationship created

(iv)              Lawful conditions between them become binding on them

(b)   Rights of wife and duties of husband

(i)                  Maintenance

(ii)                Equal treatment and separate sleeping apartment in case there are more than one wives

(iii)               Dower

(iv)              Entitled to visit and be visited by her blood relations

(v)                Refuse to live with husband if he keeps an idol worshipping concubine in same house and claim maintenance

(vi)              Entitled to use an apartment from which she may exclude all persons except her husband

(c)    Rights of husband and duties of wife

(i)                  She is bound to observe strict conjugal fidelity

(ii)                She is bound to allow her husband conjugal union

(iii)               She is bound to obey his legal commands

(iv)              She is bound to reside in his house and observe purdah if necessary

(v)                She is bound to observe iddat on divorce or husband’s death

Presumption of marriage

(1)    Presumption of prolonged and continuous cohabitation

(2)    Recognition of the relation by family, friends and neighbours

(3)    Acknowledgement by the husband of wife

(4)    Acknowledgement by man that the children are legitimate

Restitution of conjugal rights

When a man brings a suit of restitution of conjugal rights, the wife can challenge it on the following grounds:

(1)    Validity of marriage

(2)    Cruelty

(3)    False charge of adultery

(4)    Non-payment of prompt dower

(5)    Ex communication

(6)    Agreements

(7)    Lian and zihar

(8)    Apostacy

(9)    Repudiation of marriage

(10)Impotency of husband

(11)Non-Payment of dower money

Muta marriage (only under shia school)- Muta marriage is a temporary marriage contracted for a fixed period of time.

Essential conditions:

(1)    Period is fixed

(2)    Mahr must be fixed

(3)    Rule of four wives does not operate

(4)    There must be a proper contract, declaration and acceptance

Legal incidents:

(1)    No mutual rights and inheritance

(2)    Children legitimate

(3)    Marriage dissolved on expiry of term

(4)    Divorce not recognized

(5)    If marriage is consummated, wife entitled to full dower, otherwise half dower

(6)    Wife not entitled to maintenance

(7)    There is no minimum duration

(8)    There is no limit to number of wives

(9)    Husband not bound to provide private residence

(10)Iddat of death 4 months 10 days, extended in case of pregnancy. If no cohabitation, iddat is not necessary.

Difference between shia and sunni marriage

(1)    Under sunni law, proposal and acceptance need not be in any particular form, specific terms in shia law

(2)    Marriage under compulsion valid under sunni law, void under shia

(3)    Witnesses essential under sunni law, not in shia law

(4)    Muslim male can marry kitabia under sunni law, not in shia law

(5)    Marriage during pilgrimage valid under sunni law, void under shia law

(6)    Muta not permissible under sunni law, allowed in shia law

(7)    Valid retirement[4] recognized in sunni law, not in shia law

 

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[1] 2 male witnesses or 1 male and 2 female witnesses

[2] Khyar-ul-bulugh is known as option of puberty. In cases of consent in marriage given by guardian, the minor on attaining puberty has the option to either repudiate or acknowledge the marriage.

[3] Eg marrying two full sisters, mother and daughter, etc

[4] Valid retirement means that the husband and wife are in such circumstances that there is no reason why they cannot have intercourse.