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Road to Independence: Major events that lead India to Independence

Road to Independence: Major events that lead India to Independence

Road to Independence: Major events that lead India to Independence

"Long years ago, we made a tryst with destiny; and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom."

From Jawaharlal Nehru's speech "Tryst with Destiny"

On 15 August 2020 India will celebrate its 74th Independence Day. On 15 August 1947, India got Independence from the forever long British Rule. The ‘Tryst of Destiny’ was recited to declare the birthright of every Indian. This Journey was not so easy, it took lots of sweat and blood and lives to give us what we have. In this article, we will follow a timeline and travel through the journey of Independence via major events of the Indian Freedom Struggle.

The spark of Indian Independence was first ignited in 1857 with an unsuccessful rebellion movement, Sepoy Mutiny/ Indian Mutiny. On 10 May 1857 a military rebellion erupted in Meerut, Sepoys of East India Company Army revolted against the use of animal fat greased cartridges for guns. It is found in recent research that the cartridges were not the only reason for it but also multiple causes like social-religious-political- economic worked together to produce the rebellion. Soon the rebellion starched to Delhi and Mughal ruler Bahadur Shah Zafar declared himself as Emperor of Hindustan. The rebellion spread fast and reached to major provinces of Lucknow, Kanpur, Jhansi, Bengal, Punjab, Gwalior, etc. The rebellion didn’t last long and the British successfully suppressed the revolt.

Indian National Congress was founded with its founding member as Allan Octavian Hume, William Wedderburn, W. C. Bonnerjee, Surendranath Banerjee, Monomohun Ghose, Lalmohan Ghosh, Badruddin Tyabji, M. G. Ranade, Dadabhai Naoroji, Dinshaw Wacha and Pherozeshah Mehta on 28 December 1885. The establishment of INC was a major step towards the freedom struggle as it resulted in an organised revolt against the monopoly of British Govt. Dadabhai Naoroji formed the East India Association in 1867 and Surendranath Banerjee founded the Indian National Association in 1876. Inspired by a suggestion made by A.O. Hume, a retired Scottish civil servant, seventy-two Indian delegates met in Bombay in 1885 and founded the Indian National Congress. Indian National Congress proved to be an important role in the fight of Independence and the future of India after that. The demand for representation by INC from the British completed a journey until Swaraj and attained Independence.  

MK Gandhi’s Arrival in India was proved as a blessing for the Indian Independence Struggle as Gandhi became the face of the revolution with his unusual approach of Non-Violence. Champaran movement, Kheda movement and Non-Cooperation Movement marked as some early blow to the British crown as these movements drew a lot of people in it and propagated the narrative of Swaraj in a restricted sense. Though Non-Cooperation movement was withdrawn because of the Chauri Chaura incident it directed a faith of general masses towards Gandhi. MK Gandhi Later on successfully led the Civil Disobedience Movement (Dandi March) and Quit India Movement. He led India to the sun of freedom. He is respected as Father of Nation and popularly called Mahatma Gandhi. He is not alone responsible for the independence but he was certainly the binding force which kept alive the revolution after several setbacks.

The date of 13th April 1919 marked itself as one of the black days in Indian History, Jallianwala Bagh Massacre. General Dyer ordered an open fire to the peaceful protestors in Jallianwala Bagh, several lives lost. The incident imparted necessary anger in the Indians. It gave birth to revolutionaries like Bhagat Singh. This incident was widely criticised and proved to be a setback for British Rule, but still, the road to independence was yet far. This incident convinced Gandhi and several other leaders for self-governance i.e. Swaraj.

Hanging of Bhagat Singh and his allies in an appropriate manner was something which no book of human right will appreciate but the incident sparked a wave of youngsters joining the revolution. The sacrifices were not gone to waste but Bhagat Singh gave a new dimension to the revolution. He is a hero and inspiration to a billion Indians who worship him and his idea of Inquilab.

Dandi March or Salt Satyagrah was an act of nonviolent civil disobedience in colonial India led by Mohandas Karamchand Gandhi. The 24-day march lasted from 12 March 1930 to 6 April 1930 as a direct action campaign of tax resistance and nonviolent protest against the British salt monopoly. The purpose of the movement was to draw back the people in the struggle of Non Violent fight against the crown rule.

Quit India Movement was the final cannon which was fired by the Indian revolutionaries. Quit India Movement or August Movement was launched on 8th August 1942 with an aim to put the final nail in the coffin of British Raj. The movement saw all kind of colours from peaceful protests to the violent agitations. The collective and huge participation gave a clear signal to the British that now it is not possible anymore to operate India.

The famous Cabinet Mission with a historic announcement of self-determination and framing of a constitution for India was sent to India with three representatives from the British cabinet on 15 March 1946.

On 15th August 1947 India awake to freedom.

This Article is a very brief account of the major incidents in the Indian Freedom Struggle which defined or gave a new dimension to the revolution. The article does not intend to disrespect the feelings and sentiments of any.

 

Should there be limitations on Artistic Freedom?

Should there be limitations on Artistic Freedom?

There may be no limitation on the imagination of an Artist,

but in executing the imagination,  limitations are highly solicited.

Introduction

 

           By giving a liberal interpretation to the Article 19 (1) (a) of The Constitution of India, i.e. from the term " Freedom of  Expression " one can easily deduce the interpretation which includes 'Freedom of Art' which is otherwise known as " Artistic Freedom".

          Article 19 (1) (a) states that "All citizens shall have the right to freedom of speech and expression."

          However, as we know that no Fundamental right in the Constitution of India is absolute. So every fundamental right is subjected to some restrictions, which are known as the 'Reasonable Restrictions.'           

 The Indian Constitution clearly enshrines the reasonable restrictions pertaining to the freedom of speech and expression that it should not hamper the followings; namely;

  • The sovereignty of the State
  • The integrity of the Nation
  • The Security of the state 
  • friendly relations between own state and foreign States
  • Public order
  • Decency or morality
  • In relation to contempt of court, and
  • Defamation or incitement to an offence. 

 

Restriction to Artistic Freedom in India

            There should be freedom on the imagination of artists but a limitation on their execution. Artists should not make art which tends to bother people, hurting their sentiments, stirring up nuisance and likewise. Hence, it will be no wrong to say that freedom of expression is only valid when you are not hurting anybody's feelings.

            Apparently the mentioned Reasonable Restrictions, to the freedom of Speech and Expression, is quite inclusive and exhaustive in nature. So no artist can take shelter Under Article 19(1)(a) by violating the Reasonable Restrictions imposed on it under Article 19(2) of the Constitution.

          However, there have a lot of negative contentions been raised, which are completely against imposing any kind of limitations on such "Artistic Freedom." Some argue that Art is the medium of Expression by which one can express his thought regarding a particular issue which is the base of the development of a country and no restriction should be imposed on such freedom. However, there are the opposite contentions too, that there should be limitation and restriction to the "Artistic Freedom" and there are also some instances where it has already been witnessed a number of disastrous happenings in various countries. Which I am going to discuss below.

Freedom of speech and expression under the American Constitution

           By virtue of the 1st amendment to the US Constitution freedom of speech and expression is immensely protected from the restrictions of the state and state's federal laws. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech.

     However, laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary with co-workers or attempting to organize a labour union.

         The First Amendment's freedom of speech right not only prescribes most government restrictions on the content of speech and ability to speak but also protects

  • The right to receive information, 
  • Prohibits most government restrictions or burdens that discriminate between speakers,
  • Restricts the tort liability of individuals for certain speech, and
  • Prevents the government from requiring individuals and corporations to speak or finance certain types of speech with which they don't agree.

 

Practical Instances

       There are some of the practical instances wherein various countries have witnessed a number of the catastrophic situation for not having any kind of restrictions to such 'Artistic Freedom.' Such as

  • Danish Cartoon Controversy case, wherein a huge Religious Controversy was witnessed by virtue of an Art.  
  • Then again in the Author Salman Rushdie’s controversy after the publication of his novel,
  • Again in the Painter MF Hussain controversy.

All the above cases are the practical instances of damaging human emotions, culture and putting bad examples of artistic freedom. They are discussed below

 

Danish Cartoon Controversy

            The Jyllands-Posten Muhammad cartoons controversy began after the Danish newspaper Jyllands-Posten published 12 editorial cartoons on 30th September 2005, most of which depicted Muhammad, the principal figure of the religion of Islam. The newspaper announced that this was an attempt to contribute to the debate about criticism of Islam and self-censorship. Muslim groups in Denmark complained, and the issue eventually led to protests around the world, including violent demonstrations and riots in some Muslim countries.

             Islam has a strong tradition of aniconism, and it is considered highly blasphemous in most Islamic traditions to visually depict Muhammad. This, created with a sense that the cartoons insulted Muhammad and Islam, offended many Muslims. Danish Muslim organisations that objected to the depictions responded by petitioning the embassies of Islamic countries and the Danish government to take action in response and filed a judicial complaint against the newspaper, which was dismissed in January 2006. After the Danish government refused to meet with diplomatic representatives of the Muslim countries and would not intervene in the case, a number of Danish imams visited the Middle East in late 2005 to raise awareness of the issue. They presented a dossier containing the twelve cartoons from the Jyllands-Posten and other information some of which was found to be falsified. As a result, the issue received prominent media attention in some Muslim countries, leading to protests across the world in late January and early February 2006. Some escalated into violence resulting in more than 200 reported deaths, attacks on Danish and other European diplomatic missions, attacks on churches and Christians, and a major international boycott. Some groups responded to the outpouring of protest by endorsing the Danish policies, launching "Buy Danish" campaigns and other displays of support. The cartoons were reprinted in newspapers around the world both in a sense of journalistic solidarity and as an illustration in what became a major news story.[1]

In this way, such an Art triggered massive disaster all over the world.

 Author Salman Rushdie’s controversy

          The Satanic Verses controversy, also known as the Rushdie Affair, was the heated and frequently violent reaction of Muslims to the publication of Salman Rushdie's novel The Satanic Verses, which was first published in the United Kingdom in 1988. Many Muslims accused Rushdie of blasphemy or unbelief and in 1989 the Ayatollah Ruhollah Khomeini of Iran issued a fatwa ordering Muslims to kill Rushdie. Numerous killings attempted killings, and bombings resulted from angry Muslims over the novel.

         The Iranian government-backed the fatwa against Rushdie until 1998 when the succeeding government of Iranian President Mohammad Khatami said it no longer supported the killing of Rushdie. However, the fatwa remains in place. The issue was said to have divided "Muslim from Westerners along the fault line of culture,"  and to have pitted a core Western value of freedom of expression that no one " should be killed, or face a serious threat of being killed, for what they say or write, " against the view of many Muslims, that no one should be free to "insult and malign Muslims" by disparaging the "honour of the Prophet" Muhammad. English writer Hanif Kureishi called the fatwa "one of the most significant events in post-war literary history." [2]

Painter MF Hussain controversy     

              Here Mr MF Hussain published one disputable picture containing the picture of some veteran and renounced leaders of the world. Out of the four leaders, M. Gandhi is decapitated and Hitler is naked.     

             Hussain hates Hitler and has said in an interview 8 years ago that he depicted Hitler naked so as to humiliate him as he deserves it! How come Hitler’s nudity caused humiliation when in Hussain’s own statement nudity in art depicts purity and is, in fact, an honour! This shows Hussain’s hypocrisy and perversion. The picture which was published by the Artist was

                     hitler_big

Some Other instances  

There is some more picture which was published in the form of Art and efforts were made to take shelter under the shade of Fundamental Right of speech and expression but it had led to a lot of disturbances.  Some of such pictures are given below.

           Screenshot (94)

 

 

The above pictures are the clear indication of misusing the Freedom of Expression and intention to disrupt the public order, or defaming a country and annoy the denizens of the same. So, such kind of freedom should not be left without any Reasonable Restrictions.  

Conclusion-

It is a kind of Humanity that, not art to paint toilet seats with pictures of deity, whiskey bottles in the hands of Goddess Durga, nude pictures of deities, deities on shoes, etc. Such acts should be looked upon as a cognizable offence punishable by law. Such artists are only seeking cheap publicity and morally corrupted.   "Self-censorship” should be on artists. Self-censorship is control of what you say or do in order to avoid annoying or offending others, a sudden increase in the number of legal cases being filed against artists, actors and writers for “offending” people has caused great concern in India’s art community.

The real problem is that the Indian Government hasn’t done its job in raising the standard of living and education for all Indians. While the middle-class artists long for artistic freedoms and Western-styled excess, the majority is mired in poverty and ignorance and “freedom” seems to bring out only their worst characteristics. Raising the standard of living and making the entire population literate and aware of what a democracy is the only true solution. When artistic freedom is not balanced with an awareness of artistic responsibility which entails social, economic, cultural, and religious contextual sensitivity, one paves the way for licentiousness and artistic perversion masquerading as artistic freedom.      

Hence there may be no limitation in the imagination of an Artist but when the thing comes to the execution of the same, some limitation is highly solicited.

 

[1] https://en.wikipedia.org/wiki/Jyllands-Posten_Muhammad_cartoons_controversy

[2] https://en.wikipedia.org/wiki/The_Satanic_Verses_controversy  , Visited at 8.10 am on 9th April 2017

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LEGAL NEWS

Prasant Bhushan Found guilty in Contempt of Court case for his tweet against Chief Justice of India and Supreme Court of India
The Supreme Court Senior Lawyer Prashant Bhushan has been held guilty of contempt for his two tweets on Chief Justice of India SA Bobde and the Supreme Court Sentencing is on August 20. A three-judge bench of Justices Arun Mishra, BR Gavai, and Krishna Murari delivered the verdict, which is likely to be seen as setting a precedent to act against unsubstantiated posts on social media. Mr Bhushan in an affidavit on August 3 had said he regretted only a "part of" what he tweeted and asserted that criticism of the top judge "does not scandalize" the court or lower its authority. The Supreme Court had initiated suo motu criminal contempt proceedings against advocate Prashant Bhushan and social media platform Twitter India on July 21. The next day, the top court issued notices to Bhushan and Attorney General KK Venugopal for the lawyer’s alleged derogatory tweets against the judiciary. The first tweet commented about “undeclared emergency” in India and the role of the Supreme Court and the last four chief justices of India. The second tweet was about Chief Justice SA Bobde trying out a Harley Davidson superbike in his hometown Nagpur.
Date - Fri, 14 Aug 2020 12:47 PM


National Testing agency filed a counter-affidavit before the Supreme court and intimating it's not possible to conduct examination centers for NEET 2020 in COVID19 pandemic situation
The National Testing Agency has filed a counter-affidavit before the Supreme Court, intimating that it is not possible to have overseas examination centres for NEET 2020 because the examination is conducted in a "paper book format". In an affidavit filed in the Supreme Court, NTA pointed out that NEET (UG) has to be conducted in a single shift at the same time, on the same day to maintain uniformity and, further, the questions papers and other exam materials are to be transported from NTA headquarters to a large number of examination centres in various cities, which would require meticulous planning for safe and secured delivery of the same at the examination centres on time.” This year’s NEET was scheduled in May but due to the pandemic, it was rescheduled to July 26 and then to September 13. It will be conducted by National Testing Agency (NTA) in pen and paper-based mode.
Date - Fri, 14 Aug 2020 12:47 PM


CBI has filed written submissions before Top Court in Rhea Chakraborty's plea seeking transfer of FIR registered against her by Sushant Singh Rajput's father from Patna to Mumbai
Central Bureau of Investigation (CBI) today filed its submissions before the Supreme Court and said that the top court should let CBI and ED continue their investigation in connection with late actor Sushant Singh Rajput's death. The CBI states in the supreme court: 1) No two cases pending in two different states; 2) Maharashtra Police has not registered FIR; 3) It is Maharashtra Polices' admitted position that they are at the stage of section 174 read with 175 of the CrPC; 4) The recorded 56 statements have no backing in law in view of the absence of initiation of investigation as under scheme of section 154/155/156/157 of CrPC. The Central Bureau of investigation also told the Supreme court that the main plea taken in the petition and argued is that most of the transactions took place in Mumbai and accordingly Patna Police has no jurisdiction to investigate the matter. The petition misconceived and fit to be dismissed for many reasons, Mumbai Police was "not investigating the matter properly.
Date - Fri, 14 Aug 2020 12:47 PM


Orissa High Court directs the government and private hospitals to ensure doctors write prescriptions in capital letters
A bench of Justice SK Panigrahi while hearing of a bail application, whereby the Applicant sought interim relief to take care of his ailing wife. He had produced the medical records of his wife, which the Court found to be of "pathetically poor legibility", far beyond the comprehension of any common man. Orissa High Court has opined that the Chief Secretary is needed to examine the feasibility of issuing appropriate circulars in consultation with Medical Council of India (MCI) and Union Government regarding the writing of prescriptions by Doctors in capital letters in the larger public interest. It is imperative that the entire physician community need to go an extra mile and make conscious efforts to write prescriptions in good handwriting preferably in capital letters. The digital era could also throw open several options to make prescriptions and the diagnosis more patient-friendly, feels Orissa High Court. Looking at the magnitude of the issue, the MCI issued a specific notification under section 33 of the Medical Council Act and another regulation. In the said notification it is clearly directed that every physician should prescribe drugs with generic names and preferably in capital letters and he/she shall ensure that there are a rational prescription and use of drugs.
Date - Fri, 14 Aug 2020 12:47 PM


Pinjra Tod member and JNU Student Natasha Narwal moves to Delhi HC for bail
The Delhi High Court has sought the police response on a plea by a member of Pinjra Tod, a women’s collective, seeking bail in a case related to the communal violence in northeast Delhi during protests against the Citizenship Amendment Act (CAA) in February. The Delhi High Court has issued a notice in a bail plea moved by Pinjra Tod member Natasha Narwal who is accused of instigating the riots that took place in the northeast districts of Delhi, They have also been booked under the stringent anti-terror law – Unlawful Activities (Prevention) Act in a separate case related to the communal violence, for allegedly being part of a “premeditated conspiracy” in the riots. The Single Bench of Justice Vibhu Bakhru has issued notice to the Delhi Government and granted 10 days to file the status report. Narwal is currently lodged in Tihar prison as an accused under three FIRs that have been registered against her for allegedly fuelling the riots.
Date - Fri, 14 Aug 2020 12:47 PM


Supreme Court asked the Allahabad High Court to decide on habeas corpus plea for release of Dr. Kafeel Khan, within a period of 15 days
The Supreme Court has directed Allahabad High Court to expeditiously dispose of the habeas corpus plea filed by Dr Kafeel Ahmad Khan who has been in detention at Mathura Jail since 29th January 2020. Dr Kafeel is under preventive detention in Uttar Pradesh’s Mathura jail since February 13 under the National Security Act, 1980 (NSA) for allegedly being a threat to public order. A Bench headed by Chief Justice of India SA Bobde heard an Application filed by the Petitioner seeking directions in the habeas corpus plea and directed the High Court to dispose of the matter expeditiously, preferably within a period of 15 days. Senior Advocate Indira Jaising, appearing on behalf of the Petitioner, submitted to the Court that the detention of Khan was a counter-blast to the bail that had been granted to him. He was granted bail by a reasoned bail order that was not challenged and as a counter-blast measure, NSA has been imposed. Since the Supreme Court order in March this year, the HC has not heard the matter on merits, CJI accordingly directed that as a question of personal liberty was involved, the High Court was to dispose of the matter from the date the parties appeared before it.
Date - Fri, 14 Aug 2020 12:47 PM


Central tells to Supreme Court Committee that its considering restoring 4G internet in 1 district each of Jammu and Kashmir on a trial basis after 15 August
The Centre told the Supreme Court that a special committee looking into the issue of internet restoration in Jammu and Kashmir has decided to provide 4G internet access on a trial basis in limited areas of the union territory after August 15. A bench headed by Justice N V Ramana was told by Attorney General KK Venugopal, appearing for the Centre, that the committee has decided that trial will be done in one district each in Jammu and Kashmir division. He said that the Committee has decided that access to 4G internet in J&K will be given in a calibrated manner and the outcome of the trial will be reviewed after two months. The bench also comprising Justices R Subhash Reddy and B R Gavai said this is a fairly good stand on the part of the respondents (Centre and J-K administration).
Date - Fri, 14 Aug 2020 12:47 PM


LEGAL NOTES

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. International Law has developed in a form which is different from that of Municipal Law. The relation has been categorized traditionally been characterized from monist or dualist perspective.

 

International Law

According to the Black’s Law Dictionary

“International Law” is defined as: “The legal system governing the relationship between nations; more modernly the Law of International relations  embracing  not only nations but also such participants as  International organizations and individuals (such as those who invoke their human rights or commit war crimes)”

International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.

The term "international law" can refer to three distinct legal disciplines:

  1. which jurisdiction may hear a case, and
  2. the law concerning which jurisdiction applies to the issues in the case.
  • Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

  • Jus gentium  : is the body of treaties, U.N. conventions, and other international agreements [law of nations] – Law is common to all nations
  • Jus inter gentes: agreements between nations

Municipal Law

According to the Black’s Law Dictionary

“Municipal Law” is defined as: “The ordinances and other laws applicable within a city, town or other local government entity”.

Basically, Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. While, as far as the law of the state is concerned, these may be distinct categories of law, international law is largely uninterested in this distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law.

 

Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state's municipal law (including the state's constitution), the state is still obliged to meet its obligations under the treaty. The only exception to this rule is provided by Article 46 of the Vienna Convention, where a state's expression of consent to be bound by a treaty was a manifest violation of a "rule of its internal law of fundamental importance.”

 

Relationship between International and Municipal Law

It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. The theories of monism and dualism are the two main theories that explain the relationship between international and municipal law.

 

  • Monism

In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international sphere is that the consequences are generally attributed to the State. Since all law is part of the same legal order, international law is automatically incorporated into the domestic legal order. Some monist theorists consider that international law prevails over domestic law if they are in conflict; others, that conflicting domestic law has some operation within the domestic legal system.

 

  • Dualism

This theory holds that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations.

The main differences between international and domestic law are thought to be the sources of law, its subjects, and subject matter. International law derives from the collective will of States, its subjects are the States themselves, and its subject matter is the relations between States. Domestic law derives from the will of the sovereign or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government.

 

  • Harmonisation

Neither monism nor dualism can adequately explain the relationship between international and domestic law, and alternative theories have developed which regard international law as having a harmonisation role. If there is a conflict, domestic law is applied within the domestic legal system, leaving the State responsible at the international level for any breach of its international law obligations.

 

Position of International Law with the Constitution framework of India

The drafters of the Indian Constitution have been extremely vague in defining the status of international law in the municipal sphere. Our Constitution provides little guidance as to the relationship between international law and municipal law. This ambiguity looms large in the absence of any debate in the Constitutional Assembly on the subject and the studied silence of Constitutional pundits.

The primary issue is whether our Constitution makes a mere textual disposition of the relationship of International Law and Municipal Law. Apart from the express provisions of the Constitution, we also need to rely on actual State practice. Article 51(C)[1] (which falls within the realm of the Directive Principles that are non-justifiable in character) of the Constitution specifically mentions International Law and imposes a duty on the state to respect it. But the jurisdiction of the court to enforce them in the domestic arena has been limited by virtue of Article 37. In this backdrop, it is interesting to take note of 'The Regulating Act of 1873', which directed all Courts in India to act in accordance with "equity, justice and good conscience". On the basis of this principle, Common Law rules were transplanted into the Indian Municipal Law. It seems that India has barely deviated from its preconstitutional position in the matters of basic canons governing the principles of International law and Municipal Law.

It is a well-established principle that constitutional conventions may also breathe through legislative or constitutional enactments;[2] So, the common law rules automatically became unwritten Constitutional law of a supplementary character. It is an important principle of Constitutional interpretation that every provision of the Constitution must be given effect to. Therefore, these rules continue to be in force in the Indian legal setting by virtue of Article 225 and 37 of the Constitution of India. These provisions are based on the universally recognised principle that law once established, continues until changed by some competent legislative power. The Indian Independence Act, 1947 also incorporated the same principles under section 18(3). Therefore, such practices will be of binding nature in International Law as well as in the Municipal sphere. Hence under Article 372 of the Constitution such practices will have the force of law and India will be bound to observe the same. A composite reading of the Articles 51(c),253 and 372 suggest that India has not deviated from the common law position. Therefore, India will have the same legal practice of treating customary International Law as part of the law of the land provided that it is not inconsistent with the existing statutory provisions and the national charter.

Regarding treaties they have to be transformed into enabling legislation. In the Indian context, the ratification of a treaty doesn't ipso facto transform it into domestic law. The nonobstante clause under Article 253 of the Constitution bestows on the Parliament exclusive competence to legislate upon the treaties entered into by the Government of India.

However, Dr. P.C. Rao aptly cautions that by virtue of Article 73, "The executive power extends to all transactions which bring the Union into the relation with any foreign country or other international person". Accordingly, when there is a controlling executive; recourse cannot be had to principles of Customary International Law. Nor can such principles override the case law.

Supreme Court has held in several cases such as Vishakha vs. State of Rajasthan, Randhir vs. Union of India, Unnikrishnan vs. State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

The above inspection of the Constitutional provisions amply clarifies the status of international law in the domestic field.

Conclusion

There are mainly two theories- monistic and dualistic which are used to study the relationship between the internal and international law. Monistic theory is based on natural law which suggests that internal law as well as international law is a part of the same law and there is no need for separation between them. But the dualistic theory which is based on positive law says that domestic law and international law are separate entities. The nation state need not obey international law unless it accepts to do so. Though both theories has its own place in international law, few countries in this world follow pure dualism or monism. The countries follow international law when it is in their favour and do not follow when it is not. This is what we can see in the international scenario.

 

[1] Article 51 of the Constitution corresponds to (I) Article 29 of the Constitution of Eire, 1937; (II) Article 28,29,30 of the USSR, 1977 and (III) Article VI Cl. (2) of the Constitution of the United States. Apart from this it has close similarity to some of the International Charters and Covenants such as (a) Article 28, 29 of the Universal Declaration of the human Rights, 1948; (II) Articles 1 and 2 of the International Covenant on Economic, Economic, Social and Cultural Rights 1966; And (III) Articles 1, 4 and 22 of the International Covenant Civil and Political Rights, 1966.

[2] Supreme Court on Record Advocate Association v. Union of India, (1993) 4 SCC 441 1993 Indlaw SC 494.

Defamation: Types and Legality

Defamation: Types and Legality

IS DEFAMATION TORT OR CRIME?

Defamation is a process of lowering the reputation of any person. It can be done either in oral or in writing in the form. When it is done in written form then it is called libel and when it is done oral form then it is termed as slander. The defamation is basically publication of false statements against the claimant without his consent with the intention to lower his reputation. It is considered as an offense because it causes damages to the claimant in the form of lowering social or political reputation. Which results in financial and economical loss to the claimant.

The basic elements of defamation are-

-The statement should be published.

- The statement should be false.

-The statement should refer to the claimant.

Categories of defamation in India-

  1. Criminal defamation
  2. Civil defamation

 

a)Criminal defamation is dealt with under section 499- 500 of Indian Penal Code (IPC) Any person who is charged for defamation under criminal law should be charged for punishment along with damages. The punishment for defamation under criminal law is imprisonment for 2 years or more with or without fine

According to IPC crime defamation will take place when any person publishes any statement with the intention to lower the reputation of the claimant and the statement published is false. The statement should refer to the claimant only during this situation the plaintiff can institute a case of defamation against the defendant.

R Naik Vs Union of India[1]

In this case section, 499 and 500 of IPC were challenged by the plaintiff for criminal defamation. The validity of section 499 and 500 became academic in this case.

 

b) Civil defamation is dealt under tort law as a general rule it only focuses on libel that is the written defamation statement and does not focus on slander that is the oral defamation statement. In order to prove that the statement libelous. The claimant has to prove that-

-The statements are false.

-The statements are written.

-The statements are defamatory.

-The statements are published.

Ram Jethlalmana vs Subramyam Swami[2]

In this case, the court held that the statement made by the defendant was irrelevant. The aim was to destroy the image of the person. The defendant made the statement with the intention to lose the reputation by linking his name with the corrupt company. The statement ruins the social and political republican of the plaintiff. The plaintiff was awarded 5 Lakhs by the defendant.

 

Conclusions

From the above two cases, we can say in India defamation is both tort and crime. In the case of tort civil laws are applied. Where punishment is not given only damages are given. And in the case of Crime criminal laws are applied and along with damages, punishment is also given. In criminal law, defamation is considered as a bailable offense.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]R.Naik Vs Union of India 1994 AIR1558

[2]Ram Jethmalani Vs Subramyam Swami AIR 2006,Delhi 300,126 DLT 535

 

 

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