Why Can’t We?: A talk on ‘reform’

Every time I fail to understand the whole logic behind everyone’s statement that “In our Country, the law is not strict.” Why should we need a strict law, when the current law is way more than enough to accommodate all the issues in our society?

After all, why should we change the law, when you can’t even follow ‘your liberal laws’ (that’s something which you claim)? Is that law which is to be changed according to the wish of each and every individual?

Why can’t we, the social animals think of a change ourselves? Why can’t we change our mindset? Why can’t we respect each other’s gender, freedom, equality, feelings, priorities, more importantly, life!!

Is law something necessary for you to regulate yourself? Even if we change the law, won’t the same you come up with another argument of ‘human rights violation’?? Won’t the same you tell everyone that the law is not for the welfare of the people, but for the destruction of the people!! When your development dream is the USA and it stands in the third place for Rape Rate, which law you are referring to follow the change? If you are referring to the law of those nations, which has “eye for an eye” law, and fails to understand the feelings of people and restrict women from their fundamental freedom even in this 21st century, again which law you are referring to!!

When you can’t respect the existing law, what more you are longing to? Why can’t you change your mind rather than compelling a Nation to change its law into the law of evil! Why can’t we start the change from our family? If the reason for the crimes against women is the lack of sex education, why can’t the parents provide their children with the same than waiting for someone else to give them the necessary knowledge about these aspects! If the crimes against the state are due to the lack of education, then why can’t the parents provide them basic education, when you are in a Country, which has a government providing free education for the children below the age of 14!!

Still, you are blaming the law! Then I swear it’s not the law to be changed. It’s you, whom should be changed.If you are willing to follow all the laws, when you are in a foreign country, then why can’t you follow the laws of your own Nation?  Or is that you can follow the rules only if you are a secondary citizen! Think and rethink. It’s not the law which can bring a change which you are dreaming of. It’s you and only you who can bring that change.


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.

 

Surrogacy Laws – Are They Enough To Stop Commercialization thereof?

Surrogacy means substitute and here it implies surrogate motherhood. Surrogate motherhood means the practice in which a woman bears a child for a couple who is unable to produce a child in a usual way[1]. According to Black’s Law dictionary surrogacy means the process of carrying and delivering the child of any other person.

In India we have laws concerning surrogacy. And at present, they do not have any legislative support but a bill concerning surrogacy laws named as ‘The Surrogacy (Regulation) Bill, 2016’ has been introduced in the Parliament of India which is pending till date.

Prevalent laws regarding surrogacy till date are that commercial surrogacy is legal in India since 2002. This is the main reason that India has become a hub for the surrogacy. Besides this, the other factors that make India a hub for the commercial surrogacy are-

  • Availability of surrogates.
  • In India, this process is very cheap as compared to other countries.
  • Presence of large number of ART Clinics.
  • Favourable legal environment. International Surrogacy involves bilateral issues, where the laws of both the nations have to be in uniformity else the concerns and interests of parties involved will remain unresolved.

Other than these, a Bill[2] has been introduced. The Bill seeks to restrict commercial surrogacy and imposes certain reasonable restrictions. They are:

  • It only allows altruistic ethical surrogacy surgery to only those couples who are suffering from proven fertility.
  • Such couples should have been married for atleast five years.
  • Age of intending couple must be between 23-50 years for female and 26-55 years for male parent.
  • Such couples must not have their biological child, or adoptive child or any child though surrogacy except when their child is physically or mentally challenged and have life threatening disorder.
  • The surrogate mother should be a close relative of the said couple.
  • Surrogate mother should be ensured an insurance coverage and an adequate amount of reasonable expenses in her favour.
  • Such surrogate mother can so act only once in her lifetime.
  • It should not be for any commercial purposes or for producing the child for sale, prostitution or any other forms of exploitation
  • Any other conditions as may be prescribed.

But this also have certain loopholes[3] like –

  • Clause 4(iii) (b) (II) of the said Bill lay that no person other than the close relative of the intending couple can undergo the process of surrogacy. But the Bill has nowhere defined the term close relative and no criteria have been laid to determine the close relative. This will provide an easy leeway to the intending couples to arrange a surrogate if the term ‘Close Relative’ remains undefined.
  • The Bill does not provide any specified time period for obtaining the certificates of eligibility and essentiality from the appropriate authorities.
  • Not only this, the Bill also does not lay any review or appeal procedure in case an application for the certificates is rejected.

Rationale behind such legislation

Some of the reasons behind such a legislation are-

  • An urgent need to have the legislative backing for surrogacy laws was realised in the case of Baby Manji Yamada vs. Union of India & anr[4]. In this case a Japanese couple commissioned a surrogate mother in India but they ended in a divorce. The single male parent wasn’t granted custody of the child and the mother refused to accept it. Japan gave the child humanitarian visa and allowed the grandmother to take the child on behalf of her son, given his genetic relation with the baby. During the case, however, the Supreme Court recognised that the parent of a surrogate child may be a male and recognised surrogacy as a positive practice
  • Rich people, celebrities opts this path in order to escape the labour pain
  • Due to the commercialization of surrogacy women are being exploited either by their own express will due to poor economic conditions or due to their family pressures. Also, it might lead to be a reason to raise the statistics of human trafficking.
  • In some cases parents refuse to take the custody of the child and escape from their responsibilities.

[1] New Encyclopaedia Britannica

[2] The Surrogacy (Regulation) Bill, 2016

[3] http://www.prsindia.org

[4] 2008(13)SCALE76   2008(11  )JT150; WRIT PETITION (C) NO. 369 OF 2008


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.

 

Legal Education in India: From ‘what is’ to ‘what could be’

Right from the beginning, when a student frames his mind to take up the legal profession, then and there, he is made aware of the tedious route. From entrance test battle to decoding the ambiguity over placements, this route of legal profession never stops to offer surprises. Five-year academic or three-year academic, as the case may be, is considered to be the most crucial phase of this legal journey.

Indeed! Many novice law students consider B.A.LLB (5year) or LLB (3year) programme as a surety to mould them into legal luminaries. Well, their illusions disappear as soon as they encounter the over-academic syllabi of Bar Council of India. It comprises of twenty-eight subjects in total including eighteen compulsory, four clinical and six optional subjects.

No doubt, students celebrate its completion after receiving their degrees in the grand event of convocation. Though, end results of this academic journey do not seem to be satisfactory.  The time they enter the real world of the legal profession, things become clearer to them. In order to learn the fundamentals of their respective trade, they are commanded to unlearn some of their irrelevant academic learning. Someone has rightly said that we learn to unlearn and the system of legal education in India has beautifully applied the said adage.

To cover these loopholes, students are inclining themselves towards internships more than ever. Some get landed to right destination and get a little taste of trade while others who don’t hit their target in first go also learn some precious trade rules directly or indirectly. The idea is simple. During thirty hour mandatory lectures per week as prescribed by BCI, students are indeed motivated to learn more and more. In these enclosed classrooms, they just learn but it is only outside the classroom where they can apply their learning before it gets swept away.

Hence, classroom learning and outside training shall go hand in hand for an effective legal education system. Research papers, seminars, moot courts are also the effective tools of learning and boost the confidence of students. In the present context, ‘law’ has become a popular area of study. More and more students are being attracted towards it due to several reasons. It goes without any doubt that law is a unique area with tremendous potential and has so much to offer to the society.

With each passing year, we witness the establishment of new law colleges and encounter an army of law graduates with a degree in hands and high hope of future. Does it suffice?  The answer is an absolute NO. In order to guarantee a flourishing career, one’s legal background still matters in India, placements advantages are primarily offered to those from top notch law institutes. After facing the battle of law entrance and going through the academic training, only twenty to thirty percent of law graduates are found to be fit for the trade. This clearly proves that in the era of globalisation and specialisation, our very own system of legal education is failing us. In order to serve the real purpose, with up gradation of infrastructure, all we require is up gradation of legal education.


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.

 

Visiting a National Park

What a nice day! Let’s go somewhere to relax…”

Somewhere can mean anywhere, but usually by using the word “relax”, people tend to think in nature. Beautiful landscapes, fresh air, cute animals; who would not be attracted to that? There are a lot of options on where people should go to “relax” and have a good time. National Parks are the favourite ones.

A National Park is a category of management of a protected wilderness area whose objective is the conservation, defense and improvement of the environment and the natural resources involved.[1]In addition of being a conservation area, people are allowed to enter, but it isn’t aregular park, or like places called “Balnearios”[2]So there are certain issues to keep in mind when visiting this type of places.

The use of logic is always good. Of course, as it is a conservation area, people are allowed to enjoy these spaces, but without damaging or harming the environment.Who would dare to harm something as beautiful as nature? Well, sometimes because of ignorance people perform acts that are actually forbidden, other times they do it by being aware that it is wrong. This second group of people are really unpleasant. But at least, for the people interested in learning and making this world, a better world, here are some facts that we must know.

While legislations vary around the world, many of them have similarities. Let’s learn some of the rules[3]through situations:

If while you walk appears a snake, usually you think about running or if you are “brave”[4] enough, you think in killing it to defend yourself. Well you’d better have chosen the first option, since it is prohibited to kill, damage or frighten wild animals, or destroy their lairs or nests. It is recommended to walk away from the place, and inform the park ranger o the place manager.

It doesn’t even matter if we you have found something dead because collecting and / or extracting any material, alive or dead, without the corresponding permission of the Authority is prohibited. There is a license for doing that.

“What a beautiful flower! It would look nice for a photo.”Well, yes, you can take amazing photos of the flower, but by extracting them? Please, don’t! It is forbidden to destroy, to remove or to remove plants of the place.

Having a good time for majority is generally synonymous of drinking alcohol, “A beer with friends does not cause any harm, right?” Well, consuming or selling alcoholic beverages, narcotics or other drugs of any type, as well as enter to the area intoxicated it is prohibited.

Besides alcoholic beverages, there is also something almost indispensable to have a good time: music! If you love group meetings with a guitar and people singing, a National Park is not the place for you, as it is prohibited to use sound elements (radios, musical instruments, etc.) that disturb the natural environment or other visitors.

For people who love to take their pets for a walk, they must remember that they need the authorization of the administration to enter or transit domestic animals within the area.

You must not perform recreational activities in places other than those indicated (camps, lunches, bath room, etc.). National parks as they are designed so that people enjoy the contact with nature, they usually have specific areas in which people can carry out the activities mentioned.

There are other things to take in count but this are the principal ones. For last but not least, don’t litter. It talks a lot of what kind of people you are.

On June 21, the National Parks Day is commemorated in Paraguay by Decree No. 21,525 / 93, in order to raise awareness among citizens about the importance of these places for nature care.

The parks and national reserves[5] of Paraguay occupy an area equivalent to almost 3% of the national territory, where almost 40% of the native flora and fauna are found, whose species, for the most part, are in extinction.[6]Why? Most of the time, because of one kind of people. The unpleasant ones.

It is our duty to take care of the wild spaces, and to respect the regulations that have been created for the well-being of all and for the conservation of the protected area.

[1] Art. 4.Paraguayan Law No 352-94 “Protected Wilderness Areas”Available in Spanish: http://www.seam.gov.py/sites/default/files/ley_352_0.pdf

[2] I couldn’t find the perfect translation for this word, but in Paraguay it is used for places with lakes or rivers, where people go to enjoy the nature, and also to drink and dance.

[3] Extracted from the Resolution Nº 781/05 of the Ministry of Environment of Paraguay. Available in Spanish: http://seam.gov.py/sites/default/files/resolucion%20781.pdf

[4]Sarcasm.

[5] Different category of management. Generally stricter than National Parks.

[6] http://www.abc.com.py/edicion-impresa/suplementos/escolar/parques-nacionales-y-areas-protegidas-1021665.html


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.

 

5 Interesting Law Case Studies: A takeaway of knowledge for students

For Indians, it is a common phenomenon to undermine the judicial system and mock the professionals by saying they don’t do any work. But is it really true?

In the year 2014, the Delhi high court granted a divorce to an 85-year old man after a waiting period of 32 years. This, in turn, shattered all hopes of resuming his married life.  There are almost 27 million cases that are pending in the Indian courts while they remain short of around 5000 judges.

The story that I mentioned in the beginning is something that the High Court and Supreme Court judges are facing every day. It’s almost like a bubble breaker for a common man. As a child, there have been innumerable instances where I overheard ‘men in my family’ talk about the legal scenarios and judiciary system of India. Most of the times, it started and ended with the same thing ‘the judges in our country don’t do any work’. It’s easy to say so, but how would we know the reality behind the harsh truth?

Judges, lawyers and the entire judiciary system is working extremely hard to ensure they clear the backlog. They are unable to do so, not because they don’t want to, but because there is a shortage of resources.

In fact, there are a number of law case studies which are extremely long and have a lot of knowledge about law. For example, the Nirbhaya judgement sheet is around 429 pages long which explains the reason it takes a particular case so long.

Here are 5 Interesting Law Case Studies which is a great knowledge takeaway for the students of today:

  1. Tarakeswar Case (1874)

The popularity of the case is understandable from the fact that authorities had to sell tickets at the entry. The case revolves around Nobin Chandra and his wife Elokeshi. Nobin slit his wife’s throat for allegedly having an affair with the chief priest of Tarakeshwar Temple. Nobin confessed his crime to the police, but the locals were mostly on his side. Due to this, Nobin was released after two years while serving life imprisonment. However, the priest was put behind the bars for three years. In fact, there were rumours doing rounds that the priest had raped Elokeshi by promising to help her with “fertility issues”. This case was even more important due to the ‘British Raj’ prevalent during that time.

  1. Bhawal Case (1921-1946)

One of the most peculiar identity cases of that time, it revolves around a possible pretender who affirmed to be the prince of Bhawal Estate, largest zamindari estate of Bengal.

Ramendra, a kumar of Bhawal estate died in early 1900, but there was tittle-tattle among people that he was not really dead. In 1921, a religious man who looked like Ramendra was spotted in Dhaka. The former tenants and farmers of Ramendra supported his claim to the title. The entire village trusted him except Ramendra’s widow, Bibhabati. After a long legal procedure of 25 years, the court ruled in his favor after which he passed away due to a stroke.

The interesting thing is that during the case, the look-alike (or whatever) also moved to Calcutta and even collected 1/3rd of the estate revenue.

  1. Kiranjit Ahluwalia’s Case

Kiranjit Ahluwalia’s case came a year after marital rape was declared as ‘rape’ in 1991. She was convicted of murder by burning her husband alive during his sleep. The lady in question had been a victim of domestic violence for over a decade and had been in severe depression when she took the step. The case set a benchmark for improving public awareness on domestic abuse. As a final verdict, she was convicted to life imprisonment. However, she was later freed as her conviction of murder was reduced to manslaughter.

  1. Roe V Wade

If you want to understand the implications of judicial decisions on the political and the social environment, no case is as good as this one. The decision in 1973 supported a woman’s right to abortion and is celebrated by women each year today. The popularity of this decision is such that thousands of people march in the support every year.

  1. Mathura Rape Case (1972)

One of the most prominent cases in the history of India, mainly due to the protests following the final verdict which saw a major overhaul in the rape laws of the country. In the city of Mathura, a tribal woman was raped by two constables within the premises of a police station. During the trial, the judge found the accused not guilty. Can you guess the reason given behind this unfair judgement? As per the judge, a sexual act within the premises of a police station was permitted and consensual. However, this law had to be amended due to the massive protests all over the country, with everyone saying- Submission does not mean consent.

These were some of the cases which are extremely interesting if you go through the entire judgement. Some cases would have surely made you go “Like what! Are you serious this ever happened?” This proves one thing- The lives of lawyers and judges aren’t as easy as it seems and you must be prepared before taking up the L.L.B. course. They may seem right to some and wrong to others. However, as history has it, wherever they have been wrong, they have acknowledged their mistakes, and the judgement has been changed as well. So, let them do their work while we do ours.


ABOUT THE AUTHOR

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SANYA SAJJANHAR

Ms Sanya Sajjanhar is the academic writer at Sharda University. She has keen interest in writing articles pertaining to Law Courses.

 

Homosexuals Too Have Rights – They are not demanding something ADDITIONAL!

We often say that there is gender inequality amongst men and women and that’s true. But what about the third gender that has been given a due recognition by Supreme Court of India[1]. This so called third gender is not even accepted by majority of the people in the society, talking about its dignity, rights and so called ‘equality’ is like a fairytale!

Even after getting a legal status conferred by the Apex Court they haven’t been given their due right in many states. Although we come to read and know about some of the transgender like Zara Sheikh[2], Rudrani Chettri[3], Kalki Subramanyam[4], Madhu Kinnar[5], Manabi Bandyopadhyay[6] , Padmini Prakash[7] and 23 other transgender who have been given jobs at Kochi metro who have achieved something but what about rest of such population.

In the case of Suresh Kumar Koushal v. Naz Foundation[8] the Hon’ble Supreme Court reversed the High Court’s judgment that held Section 377 of Indian Penal Code unconstitutional. In this case the Hon’ble Supreme Court quoted the case of R.M.D. Chamarbaugwalla v. The Union of India (UOI)[9] and asserted that the instead of declaring a legislative provision illegal, doctrine of Severability must be applied and valid portion must be separated from the invalid portion. So from the Supreme Court’s judgment on the rights of homosexuals and constitutionality of Section 377 it can be construed that there is a reasonable classification made on intelligible differentia that homosexuals are an exception to it (Section 377 IPC).

Despite having been given rights by Supreme Court, they aren’t getting what they too deserve. Till date it is very normal and regular to see these people begging at traffic lights, at religious places like temples, mosques, etc. Not only this they’ve to face ill-treatment by police authorities and public. This Eunush culture is present in our culture since the ancient times of Lord Rama. And, it was in that era that homosexuals were considered as the agents of GOD and gave blessing to people on pious occasions. But at present times they have to face hatred, abusive treatment, cruelty and sexual harassment[10]. Till November, 2014 thirty seven attacks have were reported against eunuchs in Hyderabad since March. Shockingly there were around 10 deaths, three gang rapes and five acid attacks[11].

The Hon’ble Court has left it on the competent legislature to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General[12].

But this does not end here only!

Despite the verdicts of Supreme Court this community is being harassed, blackmailed and tortured because of their genetic disorder and make them feel ashamed and embarrassed about their identities. This clearly implies that States are not able to comply with the orders of Supreme Court by not being able to providing its citizens their precious fundamental rights.

[1] National legal services authority v. UOI [WRIT PETITIONS (CIVIL) NO.400 OF 2012 & 604 OF 2013]

[2] India’s first transgender HR Professional in a MNC

[3] Delhi-based transgender activist and head of Mitr Trust, opened a modelling agency to help transgender models get work and recognition

[4] activist and author, established Sahodari Foundation that works for the empowerment of transgender persons in India

[5]  she fought mayoral elections in Raigarh, Chhattisgarh as an independent candidate and won

[6]  India’s first transgender principal a year ago

[7]  India’s first transgender TV anchor with a prime time show on a South Indian TV channel

[8] CIVIL APPEAL NO.10972 OF 2013

[9] AIR 1957 SC 628

[10] Jayalakshmi v. State, (2007) 4 MLJ 849

[11] http://www.deccanchronicle.com/141121/nation-current-affairs/article/eunuchs-face-assaults-rapes

[12] Suresh Kumar Koushal Case, supra


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.