Easier said than done: The problem of non-compliance of the law

“There is no more serious pathology in law than a law that can’t achieve its goal”

A. Andaluz

Have you ever heard that “the laws are dead letters”? Most probably yes and more than once… and probably many examples are moving back-and-forth in your mind, but in order to illustrate what I mean with it let me share a little anecdote:

During a lecture in the law school, the Professor asked the students to raise their hands if they went to classes by motorcycle. More than three-quarters of the class did it, then the Professor said: “Keep your hands up if you use a helmet” Almost no hands were visible.

Wearing a helmet when riding a motorcycle is a transit rule, and there are pecuniary fines to punish non-compliance of this specific law. Many questions arise of this example and the most important is a childish one “Why?” short, plane, and many times complex. The analysis will start by answering the following: Why are laws created for?

Well, laws have to do with human behavior. Laws delimit the free will of people within society. Every law that is created has a certain purpose. Traffic laws for example, were created to avoid accidents, to set the order in a city or country, among other things.

The laws are also created to consolidate a social change. One example is when after the fall of the dictatorship of Stroessner in Paraguay, a new constitution was promulgated. It consolidated the change of dictatorship to democracy.

Likewise, laws are created in pursuit of social change. They serve as an instrument of social change and they can be successful or not. A clear example is the Dry Law in the USA, in which, due to strong social and religious mobilization, it was possible to pass a law that tried to abolish the habit of drinking alcoholic beverages. The prohibition banned the production and sale of alcohol, but failed to eliminate the desire of the inhabitants to drink it. The demand for alcoholic beverages was there, whether prohibited or not.

Governments and legislators can decide to abolish, limit, prohibit or regulate broad areas of human behavior, economic activity or public morality and decency even in liberal democracies with strong protections for individual rights. They can decide what behaviors, products or practices are illegal, and they can do that with all the power that the sanctioning apparatus of the State has. They can even do it with the best intentions, and all that, can be absolutely useless, if no one has incentives to obey the law.[1]

Now you may ask: “Why are not the laws obeyed?”.A single answer obviously doesn’t exist. It can vary individually or according to the different social groups.

An annual survey of the World Justice Project says that law enforcement varies widely across the world and appears to be related to per capita income. Western Europe was the region with the best position in the list.[2]

For example, the problem in Mexico of the lack of compliance of the laws lies in how badly they were made. They are that ambiguousthat promote acts of corruption.[3] In Colombia, the sanction of the new Traffic Code typified nearly 100 behaviors that can be fined, many of them not even known by citizens.[4]

Road safety laws are very poorly enforced in the Dominican Republic, a country in which there are not even reliable records of deaths due to traffic accidents and in which, moreover, it has regressed in that area.[5] So, per capita income, corruption, lack of knowledge, lack of social awareness, among other issues, make citizens disobey the laws.

“What can be done about it?”Well, when it comes to answering this question, we can talk about changing laws, hardening sanctions, pursuing offenders more energetically, increasing vigilance, informing citizens about their rights and obligations, fighting corruption, and so on. These Issues have been applied on several occasions but usually they are not sufficient. Because in the end it depends on the social conscience of each one.

The Dry Law and many other laws are reminders about the limits of state power and laws to change the behavior of its citizens. It depends on each one of us. It depends on you, on me, on everyone. Yes, we can do a lot of things as carry out scientific research to contribute to an effective solution, spread legal awareness as this blog seeks, but the most important action is to be the change we want to see in the world.[6]

[1]Roger Senserrich. “When are obeyed tha laws?”.Avaiable in: http://www.jotdown.es/2015/05/cuando-se-cumplen-las-leyes/

[2] Available in:  http://www.voanoticias.com/a/paises-cumplen-leyes-123738644/100380.html

[3] ALFREDO MENDEZ, Laws are not enforced because they are poorly done: specialist. Link: http://www.jornada.unam.mx/2006/06/21/index.php?section=politica&article=023n2pol

[4] Available in: http://www.eltiempo.com/archivo/documento/MAM-965873

[5] MARIEN ARISTY CAPITÁN, Traffic laws are little obeyed in the Dominican Republic. Link: http://hoy.com.do/leyestransito-se-cumplen-poco-en-la-republica-dominicana/

[6]Mahatma Gandhi quote.


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

Sue In the name Of Holy River

Story begins with natures ignorance by men and ends with the victims of natural disaster. Story rebegins with a legal identity being given to nature and poses an unending series of questions predicting the consequences thereto…

Legal world of environmental jurisprudence witnessed an interesting leap when nature got a legal personality. In a Public Interest Litigation, Uttrakhand High Court passed an order on 20th March 2017 granting legal personhood to the rivers Yamuna and Ganga along with their tributaries. This followed an another decision passed on 30th march 2017 in another unconnected PIL declaring glaciers, streams, grasslands, springs and waterfalls as legal person.Constant exploitation of rivers and negligent attitude of the government made it inevitable and thus court came out with the widest remedy possible. Though, India is not the first country which showed a legal sensitive attitude towards nature. Ecuador became the first country to recognise ‘rights of nature’ in its constitution. Recently Whanganui River in New Zealand also got legal personhood.

Indian position is very much differentiated from Ecuador and New Zealand. In Eucador, the issue covers nature as a whole and the equation of river with living entities arises nowhere. In New Zealand, the law came in the form of comprehensive legislation, i.e., Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 whereas Indian law is a result of court order. New Zealand enactment is a result of long fought battlebetween Maori (indigenous community) and the Crown, pressing historical claims over river. Maori culture and its beliefs dominate this legislation and provides extensively for the stewardship. Coming back to the Indian context, Uttrakhand High court in its bold and innovative decision exercised  Parens Patrie jurisdiction. It declared Director NAMAMI Gange, the chief secretary of the state of Uttrakhand and the Advocate General of the state of Uttrakhand as loco parentis, i.e., human face to preserve, conserve and protect Rivers Ganga and Yamuna.

This legal dimension is enveloped with various complications. Ganga being a transboundary river flows through various Indian states and has tributaries coming in via Bangladesh and Nepal. Thus questions pertaining to jurisdiction of a state officer rightly crops up in the mind. Justices Alok Singh and Rajiv Sharma granted legal status to Ganga and Yamuna with all corresponding rights, duties and liabilities of a living person. Now an interesting observation arises in reference to river liability in case of flood or other incidental calamity. Unlike temples and trust where Deity as legal person also has liability that can be discharged by respective trusts, present case is totally devoid of any such scheme. Present High Court ruling will certainly throw the ‘massive river linking project’ in the backyard that proposed the large scale diversion of water from eastern India to water scarce regions of western and central India. In case of its execution govt may be welcomed with multiple suits in the name of Holy River.

This revolutionary judgement backed by Articles 48A and 51A(g) of Indian constitution adds one more evidence supporting Indian judiciary commitment towards Directive Principles of State Policy. Hence, 68 years old republic must prepare itself to direct its policy in efficient and proper way to evade frustration of  judiciary as well as of common masses.


ABOUT THE AUTHOR

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DEEPIKA SANGWAN

Deepika Sangwan is a second-year student at Army Institute of Law, Mohali. She is an Editor at college magazine ‘AILITE 2016-2017’. She believes that writing gives clarity & depth to one’s thoughts. Apart from decorating facts with reasoning, cycling is her favourite pass time.

Cannabis Sativa- Legalisation and impact

Cannabis, indigenous to central and south Asia, conjointly popular as marijuana and is intended for use as a psychoactive drug or medicine. Since 3rd millennium B.C., it is mostly used recreationally or as a medicinal drug. In some parts, it is also used as a part of a sacerdotal or ethereal liturgy. Usage of the drug has increased since 2013. In 2013 between 128 and 232 million people used cannabis i.e. equal to 2.7% to 4.9% of the global population between the ages of 15 to 65. The legality of cannabis for personal and recreational use variegates from country to country. Possession of cannabis is contraband in most countries as a result of the agreement about Indian hemp, avowed as hashish in the International Opium Convention (1925).

Usage of the drug has increased since 2013. In 2013 between 128 and 232 million people used cannabis i.e. equal to 2.7% to 4.9% of the global population between the ages of 15 to 65. The legality of cannabis for personal and recreational use variegates from country to country. Possession of cannabis is contraband in most countries as a result of the agreement about Indian hemp, avowed as hashish in the International Opium Convention (1925).

Some Canadian cities, some territories of Australia (possession of 50 pounds is legalised), Bangladesh, Chile, Jamaica, Czech Republic, Spain, Uruguay, the Netherlands (it is semi-legalised), North Korea and some U.S. states have meanest prohibitive cannabis laws, while countries practicing forbidding cannabis laws are namely, China, Egypt, France, Iran, Indonesia, Japan, Malaysia, Nigeria, the Philippines, Poland, Saudi Arabia, Singapore, South Korea, Thailand, Turkey, Ukraine, the United Arab Emirates and Vietnam.

The drug is most extensively at hand illicit drug and its use, the most rapidly increasing victimless crime. Legalising it would explicitly beget addicts, but the flip side of the coin is that legalising cannabis would be worth hundreds of millions. National income would receive significant boost if cannabis use was regulated in the same way as tobacco. Legalizing would not just generate high tax revenues but would also create many job opportunities. Also, limiting the demand for illicit drug by making a licit supply available from a legally regulated market- would create stability and place in drug producing nations. Cannabis

Cannabis possess rich medicinal value- it can kill cancer cells be it the flower or the oil. Epilepsy, along with pain from AIDS and nausea from chemotherapy as afflictions are also some medical problems that cannabis tend to alleviate. On could also add glaucoma, Crohn’s disease and muscle spasms related to multiple sclerosis, and a host of other conditions to those marijuana has effectively treated. Also, cannabis addiction stands at a lower rate when it comes to coffee addictions. Talking

Talking of its safety it is 114 times safer than alcohol, casual use by adults poses little or no risk for healthy people – its effects are mostly euphoric or mild, whereas alcohol turns some drinkers into barroom brawlers, domestic abusers or maniacs behind the wheel. Also, cannabis has never been directly linked to any serious disease, the way tobacco has with cancer or alcohol with cirrhosis. Even the lungs don’t seem to take much abuse from marijuana. Legalising cannabis would also in no way create a situation of crime epidemic. Further, it is a noticeable point that most people now think that cannabis is bad for health so legalising it would definitely not encourage youngsters to try it out. Legalising cannabis

Further, it is a noticeable point that most people now think that cannabis is bad for health so legalising it would definitely not encourage youngsters to try it out. Legalising cannabis would, in fact, recharge the economy, and if aided with certain limits not such a curse, whatsoever. It is not cannabis but the illegal market, with no standards, regulations or price controls that poses a menace to public health. Most federal

Most federal laws, treat cannabis as equivalent to cocaine and heroin-creating a truly unrealistic picture of the lawmakers on matters of drug policy. Legalisation with adequate regulation would also help combat teen marijuana use. The more one examines the evidence, the less it seems there is any reason at all for cannabis prohibition to remain in place.After all, legal substances can be controlled in ways illegal ones cannot.


ABOUT THE AUTHOR

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AISHWARYA HIMANSHU SINGH

Aishwarya Himanshu Singh is a final year law student. An aspiring researcher who has a deep love for writing. With her first publication at the age of 13, she believes a pen is mightier than the sword. Having authored more than 50 papers she is all set for the ‘writing for a change’ programme.

Adequacy of Punishment in Rape Cases

Rape as defined by the Supreme Court in Bodhisattwa Gautam v. Ms. Shubhra Chakraborty[1] is not only a crime against the body of a woman (victim), it is a crime against the entire society. The Apex Court has further observed, “to many feminists and psychiatrists, rape is less a sexual offence than the act of aggression aimed at degrading and humiliating women”.

It is a crime against the basic human rights and also violates the victim’s most cherished fundamental right, namely the right to life as contained in Article 21[2] of the Indian Constitution.

One of the issues in system is that the rape laws do not, unfortunately, take care of the social aspect of the matter and are inapt in many respects. Furthermore, a large number of the rape cases remain unreported because of the social stigmas and pressures attached to the victim of rape and humiliation and mental torture which she and her family have to suffer during the court trial.

Scenario of Indian Society

In Indian system, it is considered that a crime is committed against the society not only against the victim. And, this is the sole ground for granting punishment to the accused, he is punished on the basis of impact that is formed on the society due to that offence. Felon is not punished on the basis of what consequences does the victim has faced or will face.

Due this concept society may get the justice but the victim often does not. If see towards the case of NIRBHAYA[3], the convicts got the death penalty and majority of the India is happy that finally the justice has been done to the victim. But, what kind of justice this is to the brave NIRBHAYA? She only suffered the pain and torturous acts of those culprits but she did not see them facing all such pains, tortures and humiliation which she faced on that BLACK day. Atleast the culprits must face and feel all that pain and humiliations which they made her to face.

Unfortunately, NIRBHAYA is just one of the numerous rape cases that fortunately got the media attention and due to this media attention got disposed off within 6 years (which is although a long time period but acceptable and fine if we see the Indian Judicial and political system with reference to other pending cases for example BILKISBANO[4] case). There are ‘n’ numbers of rape cases in which even FIR is not filed or even if it is filed then the mouth of the victim and her family shuts up or is made to shut up due to the fear of loss of reputation. Awarding of death penalty is fine in doing justice to the society but in my opinion the culprit must also get to face all those consequences and loss of reputation.

Mr. Justice S. Ratnavel Pandian of the Supreme Court in Madan Gopal Kakkad v. Naval Dubey & anr.[5] observed that, “offenders of the sexual assault who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms”.

This crime destroys the entire psychology of a woman and pushes her into deep emotional crises.[6] If nature of the crime is such, then why don’t we apply the principle of hedonism (i.e., utilitarian theory of pain and pleasure propounded by eminent Jurist Jermy Bentham) .Not only the principle of hedonism must be applied the culprit should be punished through the retributive methods of punishment so that he must feel and come across the similar pain and realise what he did to an innocent person (woman).

Role of Politics

Still, despite of making such legislation, Indian politicians often start their dirty politics and talk about the human rights, basic fundamental rights, needs of the family of culprits. And, try to fill their vote bank behind the curtain of sympathy for the victim and condemnation of the rapist (most often accused because in most cases they are left free) and offering a helping hand to the culprit and his family in the name of humanity and fundamental rights of felons!

[1] AIR 1996 SC 922

[2] ARTICLE 21- Protection of life & personal liberty- No person shall be deprived of his life and personal liberty except according to the procedure established by law

[3] Mukesh & Anr. v. State for NCT of Delhi & Ors. [CRIMINAL APPEAL NOS. 607-608 OF 2017]

[4] cr.appeal.1020­to­1023.09, 487.10, 194.11, 271.11

[5] 1992(3) SCC (204)

[6] Supra, at 1


ABOUT THE AUTHOR

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TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.

Entry of Whatsapp into the legal world

Gone are the days when judicial proceedings will wait for you to be at home so that service of summons can be completed. In the world of connectivity if you are found evasive or absent from your available address then the judicial team can serve you summons on your virtual address ie. your whatsapp no. or email id. Hearing the case of TATA SONS LTD & ORS V. JOHN DOE(S) & ORS , Delhi High Court allowed the petitioners to serve summons via whatsapp and  Bombay High court also accepted served intimation via whatsapp as service of notice.

Riding the liberal route, Justice Gautam Patel observed , “It cannot be that our rules and procedure are either so ancient or so rigid that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been properly served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion.”

Along with 200 million whatsapp users in India, legal world has also become techno-friendly. Apart from expecting some best wishes and funny jokes from dear ones, one can also expect court notice on whatsapp. That reminds me of one more whatsapp connection with legal world ie. admissibility of whatsapp messages as a legal evidence under section 65(B) of Indian Evidence Act. So, while defending or establishing your case in court of law, you can submit a whatsapp message as evidence provided it conforms following requirements:

  • The message is not hearsay and it was received by you.
  • The phone or system has not been tampered with and has been in regular use.
  • The message was sent by the person alleged to have sent it.
  • The sender intended to send it.

Thereby, your whatsapp message will be subject to all the tests as documents otherwise admissible are subjected to. It goes without any doubt that whatsapp has emerged out to be a king of all other social networking platforms. So, one shall not underestimate its power. It can either make the case or break it. Whatsapp controversy also covered group administrator in its range. As technology is making rapid strides and increasing its bandwidth per second, law in this field is still vague and require some time to cover the grey area. That’s why circulation of offensive content in a whatsapp group can make admin liable in absence of immediate actions.

Indeed 21st century is an era of whatsapp and it has marked its entry in the legal world. With its increasing involvement in day to day life, its legal connection is irrevocable. One cannot guess about the future surprises that technology has reserved for us. So, time has come that this technology be utilised by people of land in proper way in order to evade the slap of law of land.


ABOUT THE AUTHOR

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DEEPIKA SANGWAN

Deepika Sangwan is a second-year student at Army Institute of Law, Mohali. She is an Editor at college magazine ‘AILITE 2016-2017’. She believes that writing gives clarity & depth to one’s thoughts. Apart from decorating facts with reasoning, cycling is her favourite pass time.

Freedom of Expression vs. Honour: Your rights end where mine begin

Let’s share the story of a friend of mine:

She was born in a small and humble home of a little town, but she wanted to be somebody, to succeed in life, so she worked really hard for her dreams. That’s how she was able to go to school, but this wasn´t enough for her. She wanted to go to high school, but in her little town there were none.

Determinate to overcome her limits, she moved to a large city in order to continue with her studies and by the end of her final year she made up her mind: she wanted to be a teacher. This looked almost impossible, considering her economic background. Nevertheless, during those same years she did put in lots of efforts to improve herself and her community.

All those years of hard work were rewarded: her excellence awarded her with a scholarship so she was able to study her dreamed carrier. Years passed and she contributed a lot to the educational community. She even became the Principal of one of the biggest educational institutions of the city. Her humble beginnings were not an excuse for her.

Really inspirational right? But the story does not end here. Many people desired her position[1], and they were capable of doing anything following the famous phrase “end justifies means”. By using their connections, they were able to spread all kinds of infamies and lies about her, which by the magic of the sensationalist press, it was extended like wildfire which damaged her reputation and honour… Really unfair and sad, isn’t it?

There are a lot of rights involved in this story. The problem is how to balance them. On one hand, the Right to Honour and Reputation was damaged. Journalists claim that they have the right to freedom of the press and the one was who actually said something that wasn’t true to damage the good name of the woman, claims the right to freedom of expression. Yes! We all have rights. But there is a principle by which your right ends when other’s rights begin.

The art. 12 of the Universal Declaration of Human Rights, says that “No one shall be subjected… to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. And the article 19 establishes “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”[2].  As you can see, there is a thin line between those rights.

If you read the websites of international organizations, you will find that they tend to protect more the right to freedom of expression, and they even recommend that “calumny and defamation”[3] should be removed from criminal law. Criminal Law penalties, besides punishing the wrongdoers, have a preventive purpose[4]: to avoid the repetition of the crimes through warning or intimidation[5]. “The object of civil sanction is the redress of wrongs by compelling compensation or restitution, the wrongdoer is not punished”[6]. That’s why there are people against protecting this right only with civil sanctions.

The Declaration of Principles on Freedom of Expression states that: “Protection of reputation should be guaranteed only through civil sanctions, in cases where the offended person is a public official or a public or private person who has engaged voluntarily in matters of public interest…” So if you want to contribute to your country by working in public function or you are involved in matters of public interest, just get ready. People will be able to damage your reputation easily, because civil sanctions are not as intimidating as criminal law penalties.People will tell you to be ready for the attacks and lies others are going to say about you. “It’s always like that”, “that’s how it works” and “you just have to ignore them”; with this phrases people tell you “DO NOT DEFEND YOUR RIGHTS”.

It’s true that a lot of politicians use this juridical figure to persecute journalists who publish acts of corruption that they have carried out[7]. But it must be with accurate information, because Freedom of Expression has its limits. And those limit should be clearly defined.

Freedom of Expression and the right to Honour and Reputation are human rights. They are confronted on many occasions, so mechanisms should be sought both to balance and protect these rights.

[1] Referred to the position of “principal of an educational institution”

[2] United Nations website. Link: http://www.un.org/en/universal-declaration-human-rights/

[3] These two juridical figures are mentioned according to the Paraguayan system, it may be some differences in the denomination or specific characteristics in other countries.

[4]Quoted in: Rivacova y Rivacova, Manual of Function and Application of Penalty, Ed. Depalma 1993, Pág. 18, of the book: Problems of the Penalty, Recife, 1958, Pag. 342

[5]Feuerbach.German jurist of the early nineteenth century. For him, the purpose of imposing a penalty lies in the foundation of the effectiveness of the criminal threat, since without this threat would be ineffective. Quoted in: en http://www.bahaid/lapluma/derecho/revista002/pena.htmream.com

[6] Link: http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law

[7]Referred to politicians.


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.