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Doctrine of Res Gestae

Doctrine of Res Gestae

The Latin term res gestae means:-

a transaction

an event

thing done

the subject matter

In general hearsay evidence is not admissible but res gestae is an exception to the hearsay rule, which is accepted by the courts. So res gestae as an expression includes everything that may be aptly considered and incidental to the event, which is under consideration or a matter of discussion. So in general res gestae may be defined as matters incidental to the main fact and explanatory of it including acts and words which very closely connected therewith as to constitute as a part of the transaction and in absence of which the main fact would be difficult to be understood.[1]

                                           They are events speaking for themselves and acts of participants, the circumstances, facts and declarations which are the creation of the main fact, are coeval with it and serve to exemplify its role. It may also be defined as those circumstances which are the reflex and undersigned incidents and which are admissible when illustrative of such fact. These acts may be separated from the main act by lapse of time. A transaction may even lapse for weeks. Things left undone as well as things did i.e. the incidents may consist of both saying and doing.

                                           They are acts talking for themselves and not what people say when talking about the acts. The acid test for admissibility of evidence as a part of res gestae is whether the act, declaration or exclamation is so intermittently interwoven or connected with the principal facts or even which is characteristics as to be regarded part of the transaction itself and so also whether it negatives any premeditation or purpose to manufacture testimony.

 

 

The term res gestae has been used in two senses:-

  • Firstly, in restricted sense words happening out of which the liability or right in question arises. So in a restricted sense, facts constituting res gestae must be so as to be connected with the particular transaction or with the fact which is under investigation so as to constitute a part of the same.
  • In its broader sense res gestae covers all probable facts vide which res gestae are reproduced to the tribunal wherein direct evidence of the witness or perception by the court is unattainable.

To exemplify as to what can be construed under this doctrine, an illustration is contained herein below:

A and B are brothers, one day A was running behind B with a gun in his hand shouting that "today I shall Kill you (his brother B)". Both of them i.e. A running with a gun behind B, they both entered inside the park and jumped the boundary of the park. The people in the park witnessed this and also heard A saying to kill B and chasing B pointing a gun towards him. But after a while when both(A and B) jumped the boundary and were outside the sight of the people in the park a sound of the gunshot was heard and when sought for B's blood ridden dead body was lying near the opposite side of the park boundary. These series of circumstances are so interlinked that even if the people did not directly witness as to what happened on the backside of the boundary and merely heard everything, is admissible as forming a part of the same transaction, which negates the happening of any other circumstance, other than  A killed B through the gunshot. 

Courts in England have been very rigid and cautious in using this doctrine. In R v Bedingfield[2], a woman suddenly came out of her room with a cut-throat and stated to her aunt, “O dear aunt, see what Bedingfield has done to me". But this statement was denied by the courts to be construed as a part of the doctrine of resgestae, and was considered to be bad in law. But this case became an eye-opener and widened the scope of the doctrine and its arena as well.

                 Further, in the case of Teper v R[3], a husband set fire to a shop of his wife. A police constable heard a woman shouting "your place burning and you going away from fire". The constable in his evidence stated that he saw a car in which there was a man resembling the accused. Hearing of those words by him, from a burning shop and nearly half an hour after the fire started. It was held that words to be admissible as words explaining an act to form part of res gestae, the utterance must, if not absolutely contemporaneous with action, be at least so closely associated with it in time, place and circumstances, that they are part of the thing being done.

                So also in the case of R v Christie[4] assault was made on a young boy. Soon after such assault, the boy made certain statements to his mother narrating of the offence and the man who assaulted him. herein Lord Atkinson has opined that the statement made by the boy was so separated by time and circumstances from the actual commission of the crime.

The doctrine of res gestae in India

This doctrine has been encompassed in the Indian legislative regime vide section 6 of the Indian Evidence Act, 1872 (IEA). Section 6 of the contemplates as to the relevancy of facts forming the part of the same transaction, encompassing:-

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

The most important words in the above-mentioned section is that of "same transaction" reason being in requires connotations for understanding. So same transaction means a transaction in a group of facts, linked to be construed by a single name as an offence, a contract, a wrong, or any other subject which will be under inquiry.

                              A transaction encompasses both the physical acts and the psychological acts or words which accompany the physical acts.  When a fact is said to relevant vide application of the doctrine of res gestae it refers to the complete transaction from the starting point to the act of the accused until it has reached its end. So when the transaction is an amalgamation of several physical acts, resulting in a chain of such acts forming part of the same transaction they are considered to be linked together by:-

  • the proximity of place
  • continuity of action and
  • community of transaction

Psychological acts forming part of the transaction, involves words spoken by the person doing the act, or by the persons to whom they were done or even by the bystanders are relevant as they are a part of the same transaction.

Conditions that can be encapsulated for admissibility of the statement under section 6 of IEA are envisaged below:-

  1. The incident or occurrence must be explained, elucidated, or characterised by the statement in some way or the other.
  2. There must not ant the time gap which could possibly give any hint or iota of doubt and so also should not be a narration of an event that occurred in the past. So spontaneity and contemporaneousness must be there.
  3. The statement must be strictly based on facts and must not be opinionated.
  4. The person who has been a participant to the transaction and the one who has observed the same as a witness must have deposed it.
  5. A bystander's statement would be relevant only if his presence at the time of the incident and he himself has witnessed the same.

Cases in India wherein the doctrine of res gestae has been applied:-

In case of Badruddin v. State of Maharashtra[5], there was a quarrel between the deceased and the accused wherein the accused dragged the deceased from his house to the chowk area and began to beat him. One of the villagers who witnessed this incident ran to the village police (name- Patel), while the beating was in progress and other villagers also said the same to Patel. therefore the statement of Patel before the court that the villagers informed him of the accused beating the deceased was held to admissible and relevant under section 6 of IEA.

Further, in case of Rattan Singh v. State Of Himachal Pradesh[6], the accused has grudge against the deceased (young married woman), as because she opposed sexy designs. The accused was tried for the murder of the deceased by shooting a gun. In this case, the following facts formed the part of the same transaction under section 6 of IEA:-

  • the very act of assailant intruding into the courtyard at the dead of the night
  • victim identification of the assailant
  • her statement that the appellant was standing with a gun and
  • that he fired at her

as these acts are so connected or intertwined within themselves that there is no window of anything else happening and they form part of the same transaction.

Then in case of Bishan v. State of West Bengal[7] the witnesses had come to the place of the incident immediately after the incident took place and found the dead body of the deceased and other injured victims in an unconscious state and also found the dead body of the deceased and other injured victims in an unconscious state and heard the narration of the incident from the injured and other eyewitnesses which were corroborated with the to the evidence of the prosecution and was held to be admissible vide section 6 of IEA.

The above-mentioned cases be it India or of England have very well highlighted the rules as to the application of the res gestae. The application of this rule requires caution as the person who wants to seek benefit under this rule has to established each and every nitty-gritty of incident so to establish facts forming part of the same transaction, as under section 6 of IEA. The court has to apply this doctrine very cautiously as a simple mistake can bring the entire case in stake, the series of the transaction to as to form part of the same transaction have to be so inextricably connected so as to negate the happening of any other event apart from those accepted as hearsay evidence under the rule of res gestae, in relation to a particular event under the scrutiny of the court.

 

 

 

 

 

[1] The Law Of Evidence, Dr. S.R Myneni , 2nd Edition, Asia Law House

[2] (1879) 14 Cox CC 341

[3] 1952 AC 480

[4] (1914) AC 545

[5] AIR 1981 SC 1223

[6] 1997 4 SCC 161

[7] AIR 2006 SC 302

Analysis of Surrogacy and Surrogacy Laws in India

Analysis of Surrogacy and Surrogacy Laws in India

"It is her egg and his sperm, and I am just an oven, it is totally their bun."

The concept of being a mother of a child, who is not biologically related to her is not a new concept in India. Since the mythological period in India, that, Yashoda played mother to Krishna though Devki and Vasudeva were his biological parents. Likewise, Gandhari made Dhritarashtra the father of a hundred children, notwithstanding they have biological relation with none of them. 

Surrogacy can be tentatively defined as an agreement which is often supported by law, wherein women, i.e. the surrogate mother who agrees to become pregnant and gives birth to a child for another person or persons, basically the parents of the child who is known as the commissioning parents of the child.[1]

In such kinds of arrangements, monetary compensation i.e. 'Consideration,' may or may not be given. When the surrogate mother receives money for such arrangement, then such arrangement is considered to be a commercial surrogacy and when there is no receiving of compensation or consideration, except the reimbursement of reasonable expenses that can be known as altruistic.[2] However, in a country like India, where there is no legislation regulating the domain of surrogacy, surrogacy is becoming vulnerable to be misused by both commissioning parents and surrogate mothers.

Meaning and Types of Surrogacy "

Surrogacy is defined as an arrangement or an agreement between the Commissioning Parents and the Surrogate mother to cultivate the womb of the surrogate mother for the growth of the child of the commissioning Parents for a particular span of time. Surrogacy can be defined as an agreement which is often supported by a lawful agreement wherein women who agrees to become pregnant, i.e. the surrogate mother, and agrees to give birth to a child for another person or persons, basically the parents of the child who is known as the commissioning parents of the child.[3] Generally, surrogacy is of two main types[4], namely;"

Traditional surrogacy

"In such kind of surrogacy i.e. traditional surrogacy, a surrogate mother is inseminated naturally or artificially, either by the commissioning father or by an anonymous donor, and carries the baby for a particular span. Therefore, the child is genetically related to both the surrogate mother, who provides the egg and the commissioning father or anonymous donor.[5] Traditional kind of surrogacy is very controversial than gestational surrogacy as the biological relationship between the surrogate and the child often complicates the matter, like controversies of parental rights or the validity of the surrogacy agreement are challenged. As a result, most states prohibit traditional surrogacy agreements.[6]"

Gestational surrogacy

"In such kinds of Surrogacy i.e. Gestational surrogacy, one egg is extracted from the intended mother or an anonymous donor and is fertilized with the sperm of the intended father or anonymous donor. Then it is fertilized. Then the fertilized egg or embryo is transferred to a surrogate mother who carries the baby to a particular span of time. Therefore the child is biologically or genetically related to the woman who donated the egg and the intended father or the anonymous sperm donor but not to the surrogate mother.[7]This the method is mostly chosen than the traditional method of Surrogacy as the child is not biologically related to the surrogate mother. Here the surrogate mothers are also known as Gestational Surrogates.[8] So in India, gestational surrogacy is mostly proffered than the traditional surrogacy and is considered to be less legally complex."\

 

Why one opts for surrogacy?

The intended parents may opt for surrogacy in the following situations, namely;

  1. When pregnancy is medically impossible for the intending mother, or
  2. The pregnancy risks exist to the mother's health, which may be proved to be catastrophic to the health of the surrogate mother, or
  3. When a same-sex couple wish to have their babies.[9]

Apart from that, it can also be a reason that some couples due to heavy workload in their everyday's life, cannot afford to spend time for the pregnancy etc. , so they also opt for surrogacy. So from all of the above circumstances, it is very much clear that due to some unavoidable incapability a couple opts to go for Surrogacy. In surrogacy, there may be a concept of compensation or consideration. If the concept of consideration is there, then the same is to be called as the commercial surrogacy and if the consideration is not there then the engagement of surrogacy is to be called altruistic.

Advantages and Disadvantages of Surrogacy

 Like everything has a positive and a negative effect, the concept of surrogacy also has some advantages as well as some disadvantages, however, all these advantages and disadvantages are subjective and are to judge in accordance with one's perception. The advantages and disadvantages of surrogacy are discussed hereunder.

Advantages of Surrogacy

The advantages of Surrogacy are,

  1. "Surrogacy is advantageous for those people, who are facing infertility, whether single or as a couple, and members of the LGBT community to have a child where they may not have been able to go for other processes like adoption and all."
  2. "The commissioning parent is involved in their child’s development and the surrogate’s pregnancy, including important moments like the embryo transfer and their baby’s birth."
  3. Surrogacy allows intended parents to create a special bond and relationship with their surrogate and their surrogate’s family."
  4. The people who cannot adopt due to adoption agency restrictions can likely complete the surrogacy process, as it is having fewer governmental and agency restrictions."
  5. Surrogate mothers have proven their ability to successfully carry a pregnancy, meaning a surrogate pregnancy may be more likely to succeed than other infertility treatments for an intended parent’s pregnancy."
  6. Intended parents have more control and peace of mind through a surrogate pregnancy than they usually have with infertility treatments or adoption."
  7. The women who become surrogates are able to share their pregnancy journey with intended parents and create a strong, genuine relationship with them. Often, this relationship is one that lasts beyond the birth of the baby.
  8. "It is advantageous to the surrogate mother that she does not need to spend anything, as all of her pregnancy and medical expenses are paid for by the intended parents."
  9. "Surrogate mother can also receive a base financial compensation if pursuing commercial surrogacy, which they can then use for financial goals like putting a down payment on a house or in repaying the loan thereof.[10]"\

 

Disadvantages of Surrogacy

 The negative effects of surrogacy are given below;

  1. That the arrangement of surrogacy involves, to some extent, the "sale of a self" which is morally questionable.
  2. "Surrogate mothers may not have complete information about all the implications and potential emotional and physical side effects of their decisions when they sign the surrogacy agreements."
  3. Some women are exploited and forced into becoming surrogate mothers only for economic benefits.
  4. That sometimes it so happens that surrogates change their mind and want to keep the custody of the children, which may create legal problems.
  5. "Surrogacy is usually very expensive, so most people cannot afford it. It contributes to class and social division etc.[11]"

Laws in India for regulating surrogacy practices 

"In India, till now there is no legislation available for governing surrogacy, however, the Indian Council of Medical Research i.e., hereinafter, ICMR issued guidelines in 2005 to check the malpractices of Assisted Reproductive Technology, hereinafter ART this National guideline for Supervision and Regulation for the ART Clinics in India, 2005 are non-statutory and have no legal sanctity, hence not binding and is silent on major issues the lack teeth and are often violated. Exploitation extortion and ethical abuses in surrogacy trafficking are becoming rampant, go unchecked and surrogate mothers are often subjected to gross misuse. [12] " 

So at that time due to the absence of  legislation on surrogacy, the concept of surrogacy became commercial and in order to legalize the commercial surrogacy the Assisted  Reproductive Technology (Regulation) Bill and Rules, 2010, which was a draft Bill framed by 12 members committee including experts from ICMR, medical specialists and other experts from the Ministry of Health and Family Welfare, Government of India and was  posted online seeking feedback."   

The bill, earlier also was posted to the public in the year 2008, for comment, was stated to be an Act to provide for a national Framework for the Regulation and supervision of Assisted Reproductive Technology (ART) and other incidental matters connected therewith as a unique proposed law which was to be put before Indian Parliament. Abetting surrogacy, it legalizes Commercial Surrogacy stating that the surrogate mother may receive monetary compensation and will have to relinquish all parental rights. Then till 2013 single parents could have also had children using a surrogate mother. Foreigners upon registration with their Embassy can require surrogate arrangements. it also proposes to make the Commercial surrogacy  legal for single persons, married or unmarried couples, stating that the surrogate mother fell enter into a legally enforceable surrogacy agreement." 

  The Assisted  Reproductive Technology (Regulation) Bill and Rules, 2010, the draft bill stated that the foreigner or NRIs[13] visiting India for the purpose of surrogacy, would have to submit documentation confirming that their country of residence recognizes surrogacy as legal and that it will give citizenship to the child born out of the surrogacy agreement from an Indian surrogate mother. However new Indian Visa regulations[14] dated 9th July 2012, issued by Ministry of Home Affairs, Government of India, required that only a foreign couple i.e. newly married man and women, whose marriage should have been sustained for at least two years will be allowed to visit India for initiating surrogacy on Medical but not Tourist visas for which some prescribed conditions have to be complied with.  These new Medical Indian Visa Regulation became effective from 15th Nov 2012. Therefore, single persons, gay parents and unmarried partners are no longer be allowed to come to India on Tourist Visas to initiate the surrogacy process. [15]"

    However, on 5th Feb 2013, a limited relaxation to such person was permitted on a case to case basis by the Ministry of Home Affairs only in respect of cases for surrogacy had already been commissioned and children born out of surrogate agreements are due to be born or have born in the year 2013. However, thereafter infants born out of such surrogate arrangements to foreign parents will not be granted Indian citizenship and hence no surrogate arrangements of single persons, gay parents and unmarried partners will be allowed in India.  On September 30th, 2015, A draft Bill titled "The Assisted Reproductive Technology (Regulation) bill 2014" "has been circulated in the public domain for general public/stakeholders inviting suggestion and comments within 45 days. It is contemptuous that surrogacy shall be available to all married infertile couples thereby, prohibiting single persons from the surrogacy. it proposes not to allow surrogacy for foreigners but makes it permissible for Overseas Citizens of India(OCIs), People of Indian Origin (PIOs), Non-Resident Indian(NRIs) and foreigner married to Indian citizen with 2 years of marriage who will have to obtain the medical visa for surrogacy in India. The bill further states that foreign nationality for such surrogate children of above foreign Commissioning Parents with the limited entitlement of Overseas Citizens of India(OCI) status.[16]  This bill disentitles  Indian citizenship to such surrogate children.[17]"

Though it is very clear that the aforesaid bills i.e. ART Bill, 2010 and ART Regulation Bill, 2014 were merely laying down some guidelines towards the regulations of Surrogacy related activities, but both of them suffered a number of unfulfilled lacunas. The ART Bill, 2010 was suffering from the following lacunas, namely;

That the remedies available to the biological parents to obtain exclusive legal custody of surrogate children and, so, waiver of the rights of the surrogate mother.

  1. "Mode of statutorily establishing the genetic constitution of the surrogate child."
  2. "Legal process of recording percentage of the surrogate child."
  3. "Process of determination of citizenship rights and nationality Rights."
  4. "Adoption and guardianship proceeding in respect of the children born out of surrogacy as the Hindu Laws do not allow non-Hindu Parents to adopt in    India."
  5. "Custodial Rights of a single parent, gay, unmarried and divorced parents."
  6. "Rights to prevent exploitation of surrogates mother.[18]"

Likewise the ART Bill, 2014 was also suffering from a number of lacunas, some of them are given below;

The said Bill did not designate or assign any jurisdiction of any court for adjudication of any dispute arising out of surrogacy, ART and surrogacy agreements.

Under this act, the National and the State Advisory Board were only authorities who would promote the ART technology, Surrogacy arrangements and other related matters. And the proceedings in this boards are deemed to be a "Judicial proceeding" before a civil Court. Therefore, the boards being the judicial bodies was really questionable.

In that bill, Chapter 3, 4, 5 and 8 talk about the complaints, duties, ART related issues, and offences and penalties respectively. But no provision was there in relation to who will determine such offences and impose penalty i.e. no judicial body was designated to adjudicate such offences. That there are also disputes in relation to the determination of parentage, nationality, issuance of passport and grant of visas etc. and there was no mention of any designated forum wherein such disputes are to be adjudicated.[19]  

Reasons for opting India as a hub for Surrogacy

Surrogacy is becoming a business hub for surrogacy basically for the people coming from foreign countries because of Law cost, less stringent rules in the same area and low expenses. The cost of surrogacy in the USA, UK ad Australia is more than 50,000 US Dollars but in India, there are advertisements offering surrogacy at the rate of 10,000 USA Dollars including the offering of Eggs and surrogate mothers.[20] Apart from that, there being no stringent legislation regulating surrogacy, only what is all we have is ICMR[21] guidelines of 2005 to check the malpractices of ART[22] and to have supervision and regulation on the  ART clinics. But merely being a guideline, it is not legally enforceable, as a result, strong exploitation, extortion and ethical abuses in surrogacy in the way of surrogacy trafficking are getting rampant, as a result, the surrogate mothers are often subjected to lots of misuse and hardships.[23]  

So let us examine some of the problems in relation to surrogacy in India by looking into the detailed concept of surrogacy, including the positive and negative consequences involved therein.

Conclusion

So from the aforesaid discussion, it is very much clear, as to how the Government is being irresponsible with regard to the regulation of Surrogacy practices and even though, sometimes it is coming with some regulatory Bills as discussed above, those are completely arbitrary and meaningless. So as a Bill cannot have legal sanctity i.e. it is having no force of law, a strong and prudent regulatory legislation regulating the practice of Surrogacy is expedient in India in order to safeguard the rights of the parties to a surrogacy arrangement and to benefit the society as a whole.      

 

 

[1] <https://en.wikipedia.org/wiki/Surrogacy>.

[2] ibid

[3]< https://en.wikipedia.org/wiki/Surrogacy>.

[4] Suketu B.Shah , Issues of Surrogacy in India ,  International Journal of Culture and History, Vol. 2, No. 4, December 2016.

[5] <https://www.hrc.org/resources/overview-of-the-surrogacy-process>.

[6] ibid.

[7] ibid.

[8]Suketu B.Shah, Issues of Surrogacy in India , International Journal of Culture and History, Vol. 2, No. 4, December 2016.

[9] ibid.

[10]" What are the Benefits of Surrogacy for All Involved, Perker herring law group, <https://parkerherringlawgroup.com/surrogacy-lawyer-attorney-raleigh-nc/surrogacy-information/benefits-of-surrogacy/>."

[11] " What-are-the-advantages-and-disadvantages-of-surrogacy <https://www.quora.com/"

[12]Anil Malhotra and Ranjit Malhotra, Surrogacy In India, A Law in The Making- Revisited,Universal Publication m second Edition. 57."

[13] Non resident India

[14] Visa Regulation , 9th July, 2012

[15] Anil Malhotra and Ranjit Malhotra , Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-58

[16] Under Citizenship Act,1955

[17]Anil Malhotra and Ranjit Malhotra,  Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-58

[18]Anil Malhotra and Ranjit Malhotra,  Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-11

[19] Anil Malhotra and Ranjit Malhotra , Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-27

[20] Surrogacy In India , A Law in The Making- Revisited, by Anil Malhotra and Ranjit Malhotra,Universal Publication, second Edition. 56.

[21] Indian Council Of Medical Research.

[22] Assisted Reproductive Technology .

[23] Anil Malhotra and Ranjit Malhotra,  Surrogacy In India , A Law in The Making- Revisited, ,Universal Publication  second Edition. 55.

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Date - Sat, 19 Sep 2020 03:41 PM


Delhi High Court has directed the media channels to exercise restraint in their reports and follow the Program Code and other guidelines
The Delhi High Court directed media houses to exercise restraint after actor Rakul Preet Singh filed a petition against unsubstantiated reports linking her with a drug case, in which Rhea Chakraborty is a prime accused, Singh argued that media reports are being run in contravention with the Ministry of Information and Broadcasting guidelines. Justice Navin Chawla asked media houses to show restraint and abide by the provisions of the Programme Code, and other guidelines both statutory and self-regulatory. The actor, represented by advocate Aman Hingorani, in her plea claimed that Chakraborty had already retracted the statement in which she was allegedly named and yet the media reports were tarnishing her image. The Narcotics Control Bureau has arrested actor Rhea Chakraborty and her brother Show Chakraborty for their alleged role in procuring and administering drugs to Sushant Singh Rajput. Rhea Chakraborty was described as an “active member of a drugs syndicate” by the federal drug agency.
Date - Sat, 19 Sep 2020 03:41 PM


Calcutta High Court issue Guideline and allows families of those dying due to COVID-19 to perform last rites
The Calcutta High Court directed that the body of a COVID-19 patient will be handed over to the family for cremation after completion of hospital formalities, provided post mortem of the dead body is not required. Observing that the right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living person but also to his mortal remains after his demise, the court said that it is of the view that the right to live a dignified life extends up to the point of death including the dignified procedure of death. Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee were pronouncing the judgment on a PIL raising the following two issues, inter alia: The four issues are as follows: i) The human remains/dead bodies of persons inflicted with Covid-19 are being disposed of by the administration unceremoniously and in an undignified manner without showing even a semblance of respect to the mortal remains. ii) Relatives and friends of persons admitted to hospitals with Covid-19 or persons who have contracted the disease whilst in hospitals having been admitted for some other malady, and who subsequently passed away, are not being permitted to have a last look at or to pay last respect to the mortal remains of the dead person and to perform the last rites. The bench said that traditions and cultural aspects are inherent to the last rites of a person's dead body and that the right to a decent funeral can also be traced in Article 25 of the Constitution of India which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution.
Date - Sat, 19 Sep 2020 03:41 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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