Right to parental love and care

The recent case of baby Falak, where a minor girl brought a two year old battered child to hospital, aroused great interest as far as battered baby syndrome is concerned; other issues involved being child prostitution and trafficking. While neither of the issues is light, battered baby or shaken baby syndrome is even graver in nature as in this the protector has become the destroyer. Battered baby syndrome refers to injuries sustained by a child as a result of physical abuse, usually inflicted by an adult caregiver. It is seen in all sections of society, though studies show that instances may be higher in low income groups or where the caregiver is under some form of stress, economic or otherwise.

The Preamble to the Convention on the Rights of Child recognizes that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.

A child has got a right to develop in an atmosphere of love and care. He is dependent upon his parents, guardians for fulfilling all his needs. The family provides not just food and shelter but also a secure atmosphere and a chance for all round development of talents and personality of the child. A child’s parents are the first people who have rights, duties and responsibilities towards the interests and growth of a child. They are responsible to give him a safe and secure environment, protect him from all forms of abuse and help him in all possible ways. This role of parents has been acknowledged in the Convention and finds its place in its Preamble. Further, Article 9(1) states that “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.” Further, Article 27 provides that (1.) States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

(2.) The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

Thus, a child finds his primary caregiver and closest friend in his parents and family. They are the ones responsible for taking care of him and helping him grow into an independent and capable individual. A child has got a full right to get parental love and care.

Article 37 lays down that: States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

            The case of battered babies is a very grave situation as in this case, the child’s biggest enemy is the person who is entrusted with all powers to protect him. This is a case of closest attendants harming him physically and leaving him scarred for life. This is a grave violation of a child’s right to parental love and care and is in many cases fatal for the child. A child is incapable of safeguarding his own interests and in this case, the ones responsible for him also start playing with it.

Right to health

Right to life no doubt includes the right to health, because life without health has a diminished meaning. Article 21 of the Constitution of India guarantees the right to life and along with the same; it also guarantees the right to health. No doubt, the right to health under Article 21 is not an expressed right but can only be implied, but nevertheless, it cannot be diminished. In the Bandhua Mukti Morcha case, the Apex Court has stated that right to life does not mean a right to a mere vegetable existence but a right to a dignified life.

The Constitution under Article 47 provides that: “Duty of the State to raise the level of nutrition and the standard of living and to improve public health- The State shall regard the raising of he level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health.” Article 47 is a Directive Principle of State Policy and hence cannot be claimed as a right in a court of law. It gives directions to the State and not a right to the citizens.

In the case of Parmanand Katara v Union of India, the Supreme Court gave directions that every injured citizen brought for treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in the event of breach of such direction, apart from any action that may be taken for negligence, appropriate compensation should be admissible.

In Paschim Banga Khet Mazdoor Samiti v State of West Bengal, the Apex Court observed that: The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.

The Law Commission of India in its 201^st report on EMERGENCY MEDICAL CARE TO VICTIMS OF

ACCIDENTS AND DURING EMERGENCY MEDICAL CONDITION AND WOMEN UNDER LABOUR along with a model draft provided for the duties of hospitals and doctors to treat accident victims, screen them, keep records and also laid down penalties for non fulfillment.

In Mr X v Hospital Z, the court again upheld the right to health over the right to privacy.

Thus, the right to life includes the right to health and for that it is essential that the State provides proper healthcare facilities, clean drinking water, pollution free environment, emergency medical care at hospitals to all persons.

There is a need to add right to health as an express right under the Chapter on Fundamental Rights. It is the duty of the State to preserve the life of all persons and one of the basic means of doing the same is through providing proper healthcare facilities.

White collar crimes

E. H. Sutherland, in 1941, pointed out that besides the traditional crimes involving violence, like murder, dacoity, etc. there are certain other anti social activities that an individual belonging to the upper strata of society commits in the course of his occupation or profession. These criminal activities are called as white collar crimes as opposed to the traditional crimes or the blue collar crimes.
A white collar criminal belongs to the upper socio-economic class and violates the criminal law in the course of his professional work. Such a person is educated and holds a position of respectability. Crimes such as misrepresentation, fraud in the conduct of business, infringement of intellectual property, etc come under the purview of white collar crimes. White collar crimes are different from the traditional crimes, not only in the mode of conduct but also because of their impact on the society at large. The impact of certain white collar crimes can be felt at places and times far remote from where they have been committed.
Various factors effecting the instances of white collar crimes are the competition in the business and professional world, changing economic and industrial scenario, developments in the fields of science and technology and business monopolies, etc.
In India, white collar crime can be observed in the form of hoarding, black marketing and adulteration of foodstuffs and drugs, tax evasion, underhand dealings, keeping false records, money laundering, fabricating records and evidences, etc. White collar crimes are a part of various different professions and are observed in business dealings, engineering works, medical profession, legal profession, computer related activities like hacking, stalking, internet security violation, phishing activities, money laundering, etc.
White collar crimes can be combated by creating public awareness regarding the same. Further, it is required to make stricter laws and special tribunals to deal with them. Stricter punishments are also required to deal with such criminals.

Capital Punishment

Death sentence has been used as a weapon of retributive justice for centuries by societies. It is a mode of public vengeance as compared to the private vengeance. Death sentence helps in quenching the feeling of revenge underlying in the hearts of private individuals and hence, preventing further acts of crime.
Death sentence is also a mode of deterrent punishment as it serves in instilling a fear in the minds of others harboring a desire to commit any similar offence.
In India, capital punishment is used only in the rarest cases, where the crime is so heinous that it cannot be expected that the wrongdoer can ever be reformed and the act in itself draws the most frightful feelings in the minds of the public at large.
Offences punishable with death sentence under the Indian Penal Code:
(1) Waging war against the Government- Section 121
(2) Abetment of mutiny- Section 132
(3) Giving or fabricating false evidence leading to procure one's conviction for capital punishment- Section 194
(4) Murder- Section 302
(5) Murder by a person undergoing a term of life imprisonment- Section 303
(6) Abetment of suicide by a child or insane person- Section 305
(7) Attempt to muder by a life convict- Section 307
(8) Dacoity with murder- Section 396
Further, death sentence is also awarded under special laws like Narcotic Drugs and Psychotropic Substances Act.
The Law Commission in its 42nd Report suggested that:
(1) Children below the age of 18 years should notbe sentenced to death.
(2) It is not necessary to exempt women from death penalty.
(3) It is unnecessary to insert a statutory provision relating to diminished responsibility in the statute book.
(4) An attempt to commit suicide should cease to be an offence.
The courts while awarding the death sentence take into consideration the gravity of the offence committed and also various other factors affecting the crime and the criminal. However, it has been a common feeling that if the murder has been delibrate, premeditated, cold blooded and gruesome and there are no extenuating circumstances, the offender must be sentenced to death as a measure of social defence.

Theories of punishment

Crime is an act against the social order and the society has from time immemorial inflicted punishment upon the wrongdoer. Punishment is any form of unpleasant action that is inflicted upon any person who by his own intention commits any act that is against the social and moral order. In order to explain the concept of punishment, various theories have been proposed and they are as follows:-
(1) deterrent theory
In the earlier society, punishments were by and large deterrent in nature, aimed at preventing the likeminded persons from committing the same offence. The functional aspect of this theory was that it instills fear in the mind of people and they avoid committing the same or similar offence.
(2) retributive theory
The retributive theory treats punishment as an end in its own. It is based on the concept of an eye for an eye. It is aimed at satisfying the public vengeance. This theory is now obsolete in the modern democratic setup of States.
(3) preventive theory
The purpose of punishment according to this theory is to safeguard the society from future instances of crime. It seeks to prevent the recurrence of crime by incapacitating the criminal. It found support from the likes of Bentham.
(4) reformative theory
The modern theory of punishment is reformative in nature. It treats the offender as a sick person and crime as an ailment and aims to cure the same. The reformative theory aims at reforming the offender as well as the society. It found amongst its supporters Mahatma Gandhi and Vinoba Bhave.

Corporate personality

Section 3(1) of the Companies Act, 1956 defines a company as: (i) a "company" means a company formed and registered under this Act or an existing company as defined in clause (ii).

Name of a company:

One of the important aspects of corporate personality is that the body incorporate has a name of its own that it uses for carrying on its business and day to day affairs. Further, it can sue and be sued under its name.  A company has a right to protect the goodwill associated with its name.

Section 20 provides that: (1) No company shall be registered by a name which, in the opinion of the Central Government, is undesirable.

(2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearly resembles,-

(i) The name by which a company in existence has been previously registered, or

(ii) a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999, may be deemed to be undesirable by the Central Government within the meaning of sub-section (1).

(3) The Central Government may, before deeming a name as undesirable under clause (ii) of sub-section (2), consult the Registrar of Trade Marks.

Nature of corporate form:

A company incorporated has a legal personality. The various advantages and disadvantages associate with its personality are as follows:

A company has the following advantages:

(1)    Independent corporate existence (Section 34)- a company has a distinct legal persona capable of existing independent of its members. Section 34(2) states: From the date of incorporation mentioned in the certificate of incorporation, such of the subscribers of the memorandum and other persons, as may from time to time be members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.

In Solomon v Solomon & Co., the House of Lords observed that a company is at law a different person altogether from the subscribers of the memorandum and is not their agent or trustee.

(2)    Limited liability- where the subscribers exercise the choice of registering the company with limited liability, the member’s liability becomes limited or restricted to the nominal value of the shares taken by them or the amount guaranteed them. No member is bound to contribute anything more than the nominal value of the shares held by him.

(3)    Perpetual succession- it means that the membership of a company may keep changing from time to time, but that does not affect the company’s continuity.

(4)    Separate property- a company, being a legal person, is capable of owning, enjoying and disposing of property in its own name.

(5)    Transferable shares- Section 82 states: The shares or debentures or other interest of any member in a company shall be movable property, transferable in the manner provided by the articles of the company.

(6)    Right to sue and be sued- criminal complaint can be filed by a company but the same must be represented by a natural person. A company has a right to protect its fair name.

(7)    Professional management- a company can get the professional management of its resources and business.

(8)    Finances- the facility of borrowing and giving security by way of a floating charge is an exclusive privilege of a company. It also has the privilege of raising capital by public subscription either by way of shares or debentures. Further, public financial institutions also lend their resources more willingly to companies.

Disadvantages of corporate personality:

(1)    Lifting of corporate veil- while a company is a legal person, it acts through its members. The members act in the name of the company and the company is responsible for the acts done in its name. The corporate veil is said to be lifted when the court ignores the company and concerns itself directly with the members or managers. Grounds for lifting the veil are:-

(a)    Determination of character(enemy character)

(b)   For benefit of revenue

(c)    Fraud or improper conduct

(d)   Government companies(agents of State)

(2)    Formality and expense- the administration of a company has to be carried on strictly in accordance with the provisions of the Act.

(3)    Company is not citizen- a company is not a natural person and hence it cannot get citizenship. In State Trading Corporation of India v CTO (1964)4 SCR 99, the Supreme Court observed that a company is not a citizen.

Rights of child

The Convention on the Rights of Child defines a child as any individual below 18 years of age. The Convention, further, lays down the duty of the State parties to ensure that the ‘child’ gets the minimum necessary rights essential for his development.

The basic rights important for the growth and development of a child are as follows:-

(1)   Name and parental love and care

It is the duty of the State to register each and every birth and the child has a right to get a name upon birth itself. The name should not be derogatory in nature and it becomes the identity of the child. Every child has a right to parental love and care and no child shall be separated from his parents against his will.

(2)   Freedom from discrimination

No child shall be discriminated on the basis of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Every child has an equal right towards the enjoyment of various public facilities.

(3)   Education

Every child has got a right to get adequate education so as to make his life worthwhile and be able to get employment. Further, every child is entitled to get vocational training as well as training to further develop his talents.

(4)   Development

Every child has a right of developing in physical, psychological, social, mental and emotional spheres.

(5)   Health and safety

Every child shall be provided with adequate measures for safeguarding his/her health and will be given necessary treatment and precautionary medication. The States shall also take measures to reduce infant and child mortality. The safety of children is also of paramount importance.

(6)   Privacy

Every child has a right to privacy that shall not be infringed by any person. They have a right of not to be disturbed at night and be allowed necessary privacy.

(7)   Protection from social, economic and sexual exploitation

Every child shall be protected from all forms of social exploitation, economic exploitation, including child labor and beggar and sexual exploitation. The State shall take necessary steps to prevent the exploitation of small children in all forms.

Position in India

The Indian Constitution under Part III lays down the fundamental rights whereby the rights of child are also protected. Article 23 expressly lays down the provisions against child labor and beggar. Further, under the chapter of Directive Principles of State Policy, the Constitution directs the State to provide for compulsory education to children.

The Child Labor (Prohibition and Regulation) Act, 1986, lays down the provisions regarding prevention of instances of child labor in India in order to prevent economic exploitation of children as well as to safeguard their health and safety.

Juvenile Justice Act, 2000, further lays down the provisions regarding the protection of children.

Right to Education Act, 2009 makes education a legal right of children

Though various legislative provisions for safeguarding the rights of children are available both at the national as well as international level, what is more important is the dissemination of knowledge about the same and strict implementation thereof.