Tag Archives: legalknowledge

Right to Conduct a Religious Procession

Leave a comment

by Sidhanta Sarkar

Constitutionally, India is a secular country and has no State religion. India’s concept of secularism had been fully established through judicial decisions and state practice – the preamble to the Constitution was amended by the Constitution (Forty-second Amendment) Act 1976 to include the word ‘secular‘ along with ‘socialist‘, to declare India to be a ‘Sovereign Socialist Secular Democratic Republic‘. The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-based discrimination between them. Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons‘ in Article 25(1), Article 27 and Article 28. Thus, the Right to Freedom of religion forms a very important Fundamental right of our country and aims at maintaining the principle of secularism in India.

Indian constitution firmly states that all religions are equal before the law and no religion shall be favored over the other. The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are limitations within which these rights can be exercised, as also lawful restrictions which can be imposed by the State.

The Jatindra Narain Commission’s Report, published recently, on the Jamshedpur riots which erupted on April 11, 1979, on the occasion of the Ram Navami festival, raises questions about the citizen’s right to go in a procession over a public road. These questions were also raised in Justice D.P. Madon’s Report on the Bhiwandi riots which broke out in May 1970 during the Shiv Jayanti festival. The central issue in both cases was conflict between the two groups. The Constitution – Art 19(1) (b) – protects the citizen’s fundamental right ‘to assemble peaceably and with- out arm‘. The right is subject to ‘reasonable restrictions‘ being imposed by the State ‘in the interests; of the sovereignty and integrity of India or, public order‘. Under S 144 of the Criminal Procedure Code, processions can be banned if the District Magistrate feels that “immediate prevention or speedy remedy is desirable” and it is necessary to impose the ban to prevent “a disturbance of the public tranquility, or a riot, or an affray”.

The Supreme Court upheld the constitutional validity of Section 144 in Babulal Parate vs State of Maharashtra  in 1960 and in Madhu Limaye’s case in 1970. That was a case where two rival trade unions clashed. In Mohammad Siddiqui vs State Of U.P. And Anr, Qazi Mohammad Siddiq had filed an application against the State of Uttar Pradesh and the District Magistrate of Lucknow, under Article 226 of the Constitution that the applicant applied for the taking out of a religious procession, Madhe Saheba. The magistrate dismissed the application because of fear of breach of peace and conflict based on religion. Lord Justice Scarman, who inquired into the Red Lion Square disorders of June 15, 1974, stated the law in the most explicit terms: “There is a conflict of interest between those who seek to use the streets for the purpose of passage and those who seek to use them for the purpose of demonstration. English law recognizes as paramount the right of passage; a demonstration which obstructs passage along the highway is unlawful. The paramount right of passage is, however, subject to the reasonable use of the highway by others. A procession, therefore, which allows room for others to go on their way, is lawful; but it is open to question whether a public meeting held on a highway could be lawful, for it is not in any way incidental to the exercise of the right of passage. India today faces many crucial problems. On the one hand, the executive is not sensitive about the citizen’s rights. On the other, riots have broken out because of certain kinds of processions“. He referred to Article 19(1) (b) and said “The people must have a right to voice their dissatisfaction or publicly demonstrate their grievances, particularly when it appears that at times even reasonable demands have not been granted unless there were public demonstrations”.

SHOULD DEATH PENALTY BE ABOLISHED IN INDIA?

Leave a comment

by Sidhanta Sarkar

The death penalty which is also known as “Capital punishment.” In criminal law though, in ancient times a number of ways were present to punish an accused with reference to the nature of his crime against the society. Such punishment was considered based on the nature of criminality presence in an act of the accused. In ancient Indian epics like; the Mahabharata and the Ramayana have also considered the death penalty which was known as “vadhadand” which meant ‘amputation by bits’ which classified into fourteen modes. While in furtherance of retention of the death penalty, King Dyumatsena observed that “if the offenders were leniently let off, crimes were bound to multiply.” In his statement, he explained that the execution of unwanted criminals was perfectly justified in the existing society. As in the same manner the great eminent law-giver Manu also stated: “that in order to refrain the people to indulge in any criminal activity fear as an essential mode for which death penalty was necessary in the society”. He further stated that in the absence of this mode of punishment the weaker would not be able to survive in the society. The concept of the death penalty was only effective in an ancient period but also has the same status in the reign of Mughals rule in India where the death penalty was not executed in a simple manner. Each and every accused person was bound to suffer and also to bear the pain until his death. Mode of the death penalty by way of nailing the body of the accused on walls was common which was abolished later in the British system of criminal justice. Thereinafter, only the mode of the death penalty by way of hanging has remained and which is yet, continuously followed by the Indian criminal justice administration. Being a way to deter offenders, it also enshrined in Section 54 of the Indian Penal Code (45 of 1860) which mentioned the death penalty as a way of punishment to refrain criminals.

Retributive Effect:

 Death penalty since ancient time considered as an effective weapon of refraining the people to indulge in any heinous criminal activities which may affect their life or through them in the well of death. Since that period this mode of punishment is also considered as an effective measure of retributive justice. In furtherance of the justification of the death penalty, it is to be said that this is a lawful measure to punish an offender who already takes away the life of another person. It is to be said by a scholar that “a person who kills another must be eliminated from the society and therefore his execution is justified.”

 Deterrent Effect: 

The death penalty though one hand has a retributive effect but on the other hand, it also has a deterrent effect which mainly deters the offenders to indulge in most heinous crimes. Its deterrent effect can be the best way by which perhaps, offenders keep themselves away from the criminality. If they are made aware of this and make such fear in their mind than in a positive way there can be a reduction of the incidences of homicide in the existing society. But in present, the method of public hanging in the early days is prohibited in respect of present laws in our country because of the extension of the human rights regime.

Conclusion:

In our country, there shall be retention of the death penalty because in the present era there is no substitute for the death penalty which may play a similar role towards punishing the criminals convicted in heinous criminal activities. In India, there are several people as well as some communities raising their voice to abolish the death penalty but there is no substitution or alternate of death sentence which may prevent the criminals to commit those offenses which may be punished with a death penalty as a mode of punishment. If in India, the death penalty would be abolished than in those cases the amount of criminality or criminals or rate of the offenses would increase as the time passes. Therefore, it is not quite possible to abolish death sentence as a mode of punishment mentioned in the Indian Penal Code, 1860. Because if someone wants to harvest crops from the fields, then he has to decide before what substitute he will plant. Similar is in case of the death penalty if there is a need to change the mode of punishment which already exists in the present society or also enshrined in the codified laws than a further step should be there for deterrence of the criminal minds and their behaviors towards the particular community or society at large. Though, as per the opinions of some of the people belonging to the society support the idea that in more than hundred countries death penalty has been abolished, then they should be remember that we cannot change anything with only seeing particular actions instead of this we should rely upon the circumstances of those countries where it has been abolished. The judicial actions taken and policies revised are not only based on present circumstances but also on past events which lead to historic commitments in a country hence, it is rightly said that: ‘future may be based on past’. If we want to cut the tree then we are required to analyze its roots to cut out them, similar is the case if we want to abolish the death penalty. Therefore, death penalty should be retained in India and those laws which are existing in present society shall be enforced. For the prevention of criminal activities or the rise of criminals or heinous crimes, we can say that such laws need to have some enforcement among the people as well as society at large in India.

ERAS OF POLITICAL DRIFT

Leave a comment

By Sidhanta & Aditi

Recently, the global world has started experiencing some revolutionary political changes. As during the twentieth century, realism and idealism both collided as conceptual rivals for understanding international relations, but the situation kept worsening in this scenario. Throughout history, the maps of nations have changed on account of the existence of various political influentials whether it is through democracy or a fascist dictatorship or a Parliament or a Communist dictatorship. The collision has been considered as a loophole in international relations. In a society with a high plurality, people may have all kinds of belief which can vary from person to person.
Changes in the society have led to the variation over time in patterns of political roles. Today, democracy has changed the mindset of society and the growth in competition in politics has become the major problem.
Therein media has emerged as the essential part of the subject as it plays the game of manipulating the society as we have seen in Spanish-American War and Nigeria propaganda War. The Nazis and Americans
portrayed the best of propagandist war. Nazi Germany introduced the term, “Blitzkrieg” and the American version of a blitzkrieg attack was “shock and awe”. Both actions aimed at achieving mass destruction within enemy’s territory. Such annihilation resulted in the violence of inequality and injustice, that is structural violence which as stated by Winter and Leighton, “embedded in ubiquitous social structures [and]
normalized by stable institutions and regular experience”.
Activists agree that the society needs to reconcile, per say, the three paradox of democracy are the parameters for society and its newly flourishing regulations to be kept within the boundaries of democratic
freedom.