UNDERSTANDING THE INDIVIDUALITY OF CIVIL LAW By Tanisha Gawde & POSTER by Sneha Kaushal

Every law that is in force today was made with an objective that it covers every field where there is scope of occurrence of any legal issue. When we look at these laws with a bird view we see that these laws can be categorized into two categories i.e. criminal and civil. To understand civil law it becomes important to understand the line that differentiates civil law from criminal law. Various Statutes under Criminal law were formed to deal with all those acts that impose a grave and immediate threat to human life and deeply impacts society at large and thus require immediate attention.  However, law framers also thought about other activities that do not impose grave and immediate danger on the life of people in society at large but are needed to be bound within the provision of some laws. All such activities are taken care of by civil law.  The common objective of both the laws- civil and criminal is to maintain discipline in society but, there is a vast difference in their functioning.

There are two sets of laws one is substantive and one is procedural law. Substantive laws define the rights and liability of a person. It tells about the dos and don’ts that a citizen has to bring into his consideration whereas,  procedural laws lays down the systematic procedure through which they get enforced. For instance in criminal law under substantive law, we have IPC which got enforced in the year 1860. IPC gives information about the acts that are unlawful in eyes of law. And to enforce the provisions under IPC there is CrPC which is procedure criminal law. It lays down provisions which inform a person about the systematic procedure that he has to follow to solve his/her grievances under IPC. In civil law, there is CPC –Code of Civil Procedure 1908. CPC lays down the procedure to solve grievances related to civil law. And under substantive law, we have various acts like contract Act, Partnership Act, family law, tax law, corporate law and many more.  

The second difference here is that the civil law majorly focuses on the principle of restitution. The principle of restitution aims at bringing the victim at the same position as he would have been before suffering loss due to the wrongful act of the defendant. The punishments in civil cases are generally in the form of compensation. For instance, on breach of contract, the defendant is supposed to restore the loss of the plaintiff by paying monetary compensation. Same is the case with consumer protection law, property law issues, motor vehicle law, and entertainment law. However, in criminal law, the mode of punishment is not restricted only to compensation. When a person is convicted for a crime, his punishment varies according to the gravity of crime he has committed; he can be sentenced to jail or life imprisonment or in rarest of rare case he can be given the death penalty.

The third difference is that, in a civil case the aggrieved party is called the plaintiff and the wrongdoer is called as the defendant whereas, in criminal law the former is called complaint and the latter is called the respondent. Apart from the different term that is used to refer to victim and wrong doer, the fourth difference is that there are different legal establishments that deal with cases in civil and criminal law respectively. District court deals with civil cases and session court deals with criminal cases.

When we try to understand the differences between civil and criminal law we cannot move forward without understanding the concept of burden of proof which is the major difference between the two. Burden of proof means the duty on the party to prove his side of arguments. In civil cases the burden of proof lies on the plaintiff i.e. the plaintiff has to prove the claims made from his side for the wrong done to him whereas, in criminal cases the burden of proof is on the state i.e. prosecution. The prosecution has the burden to prove its side of the case. The reason for this difference is that in a criminal case, the threat is to the society at large even though the crime is committed against an individual. Hence, it is the duty of the state to prove all the claims made from its side for the good of the society. Whereas, in civil law the offence is committed against an individual and the harm is only limited to that individual and hence the person who files the plaint has to fight for proving his claims in court. When a civil wrong is done to an individual (plaintiff) he first files the plaint and then submits vakalatnama mentioning the details of the legal representative of his own choice (or in case if he is handling his own case then no vakalatnama is required). On the first day of the hearing when the court finds that the case has merits then the court sends notice to the opposite party and then the legal process starts. On the other hand when a crime is committed the person against whom crime is committed first files the FIR. When the police suprident is satisfied with the complaint, the police start the investigation. Once the investigation is complete the police make a charge sheet. The charge sheet is filed in court. When the court accepts the charge sheet then the case is filed by the state and it is stated that it will fight the case from the side of complaint, unlike the civil cases where the burden of proof is on the plaintiff. The best way to understand a law is to understand its purpose of establishments and its individuality. Our legal system tries to cover every bit of legal issue that can create a hurdle in the functioning of life of every person with various civil laws and with day to day modifications it is trying to bring in already established laws and it is leaving not a single stone unturned.

JUDICIARY AND RELIGIOUS MATTERS By Divyang Tiwari

INTRODUCTION

The recent judgement of the supreme court in Sabarimala temple dragged us to mull over whether judiciary or legislature should involve in religious matters. The verdict of the supreme court that knocked down the gender barrier at Sabarimala temple by allowing women of all ages for the pilgrimage is commemorated as a great vanquishment but the question arises, can it really be considered as a triumph when it clearly clampdown the religious practitioners? Article 25 of Indian Constitution clearly states the freedom of conscience and free professions, practice and propagation of religion which delivers that to declare freely and openly one’s faith and belief and to carry out the prescribed religious duties, rites, and rituals, and to manifest his religious beliefs[1]. In a matter of religion or religious practices, courts must put their views with caution as the constitution gives every individual the right to practice their own faith and beliefs. Therefore, it cannot be said whether this comes under the sphere of judiciary or legislature to get involved in religious matters or practices unless such religious practices are detrimental to society and obviously against their own set of beliefs[2].

As a responsible citizen, I’m fully aligned to the directives of the Supreme Court but I have few points to spew about this ruling:

·        This is the not only temple of Ayappa in India.

·        This is not the only temple that has eerie rules associated with it.

·        Sanathan Dharma is not at odds with the women, sex or menstruation.

Here, let’s try to understand the background and weird rules that are associated with the temple.

OVERVIEW

Sabarimala a Sree Dharma Sastha Temple is one of the most prominent Hindu temples in India, situated in the Pathanamthitta district of Kerela. The Shrine at Sabarimala is an ancient temple of Ayappan also known as Sastha and Dharmasastha. Sabarimala temple is commanded and managed by the “Travancore Devaswom Board”. Lord Ayappan “diety” here is a “NaishtikaBrahmachari” or Eternal Celibate. About 2 crore devotees visit the temple every year. As diety is an eternal celibate, women belonging to the age group (10-50) are not allowed to visit the temple as per the notification by Travancore Devaswom Board that manages the temple. The devotees visiting the temple are required to follow a Vratham of 41 days prior to the pilgrimage in which devotees are strictly prescribed to follow only a Lacto-vegetarian diet, follow teetotalism, follow celibacy and many more[3].

RELIGION AND THE INDIAN CONSTITUTION

India is a secular country and a land of rich cultural heritage, religious beliefs, diverse religions and various types of custom being practised since time immemorial. Each and every individual in India right from the birth have an identity based on caste, colour, sex, status and religion. During the pre-independence period, religion and religious matters, is a highly tactful issue which often turned violent. Post-Independence, when the Constitution came into force, the right to practice any religion was guaranteed as a Constitutional right under part III of the Indian Constitution. Therefore, it is a highly sensitive issue and judiciary or legislature must obstruct with this matter cautiously[4].

Religion was intentionally not defined by the makers of the constitution and therefore it is still uncertain or not definite what exactly religion constitutes, but here it doesn’t mean that any religious practices could fall under the term “RELIGION”. Article 25 of Indian Constitution clearly says all persons are equally entitled to the freedom of conscience and free professions, practice and propagation of religion which delivers that to declare freely and openly one’s faith and belief and to carry out the prescribed religious duties, rites, and rituals, and to manifest his religious beliefs. Article 26(b) of the Indian Constitution clearly signifies to manage its own affairs in matter of religion.

BELIEF

 It is not that every facet of religious beliefs has been shielded under Article 25 and 26 and also it is not provided by the Constitution that every religious activity cannot be interfered with. Belief is one of the most important aspects of any religion and it is held by the Supreme court of India that every religion has some basic fundamentals associated with it that has to be followed by the followers without which the religious belief is worthless or pointless[5]. Justice Indu Malhotra rightly said that "Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one's religion according to one's faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts". 

CONCLUSION

The feature of secularism keeps the country unique from other different countries and it clearly draws a line between the religion and the judiciary. Everyone is given the right to practice any religion and the court must make sure that they should not come in between the religious practices. Every temple is unique and has some set of rules associated with it and if one cannot respect the God and respect the rules then what’s the point of following that religion, just quit it. Also, Mother Justice was blindfolded and gives the decision irrespective of caste, creed, sex, colour and religion. “If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The state has nothing to do with it. The state would look after your secular welfare, health, communications, foreign relations, currency and so on, but not your or my religion. That is everybody's personal concern!” -Mahatma Gandhi[6]

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[1]https://timesofindia.indiatimes.com/india/judiciary-must-not-interfere-in-matter-of-religious-faith-sentiment-justice-indu-malhotra/articleshow/65997571.cms

[2]https://www.livemint.com/news/india/how-courts-decide-on-matters-of-religion-1551715822881.html

[3]https://www.sabarimala.kerala.gov.in/

[4]https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/194584/13/13_chapter%206.pdf

[5]http://www.legalserviceindia.com/legal/article-1702-judicial-intervention-on-religious-matters-a-     threat-to-secularism-.html

[6]https://www.learnreligions.com/gandhi-quotes-on-god-and-religion-1770398

हे द्रौपदी तुम कौन हो? By Piyush Kumar Roy

हे द्रौपदी तुम कौन हो?

हे द्रौपदी तुम बीता काल हो,

या वर्तमान में छलकता हाल हो?

तुम वसुधा पर जन्मी स्त्री हो,

या अनंतकाल तक नारी का चरित्र हो?

हे द्रौपदी तुम कौन हो?

    चौसर में हारी आज भी कोई दासी हो,

    या कुरुक्षेत्र के रणवीरों कि पटरानी हो?

     आज भी पुरुषों की मनमानी हो,

      या दुशासन की लहू लपेटी स्वाभिमानी हो?

     हे द्रौपदी तुम कौन हो?

हस्तिनापुर के सिंहासन की अधिकारी हो,

या आज के दरिंदो की रौंधी हुई कहानी हो?

क्या पांडवो की आंन पांचाली हो?

या निर्भया जैसी बिती कहानी हो?

हे द्रौपदी तुम कौन हो?

          गांडीवधारी ने जीता हो स्वयंवर में वैसी तेजस्विनी हो,

          या किया हो अपमान जिसका अंग राज ने वो अभागीन हो?

कर दिया हो ऋणी जिसने कृष्ण को, वो महारानी हो,

या हर लिया हो दुशासन ने वस्त्र जिसका वो बेहाली हो?

हे दौपदी तुम बीती कहानी हो,

या कलयुग में वासना की शिकार कोई अबला नारी हो?

EQUAL-Shruti Ranjan

SOCIAL JUSTICE-Nandini Srivastava

Social justice like any other form of justice is essential for the development of the country. Social justice can be compared to rain that is if social justice is achieved then beautiful aroma of economic and political justice will naturally follow. The word “social” means every individual living in the society and “justice” refers to protecting the rights of the individual and punishing the wrong doers[1]. Thus, social justice can be elucidated as ending all kind of social inequalities and providing equal opportunities to everyone irrespective of their caste, religion, sex, colour etc.[2]

In ancient times, the concept of Dandaniti and Dharma was practiced. People used to link justice with the duties mentioned in the dharma and were expected to perform the duties mentioned in the dharma devotional. Any individual failing to comply or perform the said duty was punished. Hindu dharma conceptualised the system of Varna where people according to their birth were categorised into the groups of Brahmans, Kshatriyas, Vaishyas and Shudras. There was another group of people as well called Untouchables. They were the one who were either out casted or whose caste cannot be determined. Brahmins were the priest and teachers who read and interpreted dharma. Kshatriya looked after day to day governance system whereas Vaishyas were the skilled merchants, farmers, sellers. At the bottom were the Shudras and the untouchables who used to do menial work like sweeping, manual scavenging etc.This social hierarchy created a bifurcation of haves and haves not. On one side Brahminswere regarded as god by the entire population and on the other sideuntouchables were treated as animals whose existence will only pollute the earth. Untouchables were not allowed to enter temples or schools. They had different living space along with different well for taking water for any purpose. They had no proper sanitation system and the area where they lived was often unclean and unhygienic. Fa -Xian, a Chinese in his book wrote about the social system of India emphasising on the intensity of discrimination and hardship that untouchables faced and mentioned that untouchables are considered so contaminated that when they leave their houses in evening or night, they have to continuously clap their hands to warn people of upper caste about the existence so that the upper caste people can avoid their view and save themselves from contamination.

This water tight social categorisation created gap between the various castes of Hindu religion. Among the unprivileged group was also DR. Bhimrao Ramji Ambedkar, the Chairman of our Constituent Assembly. He was very much influenced by Jean Jacque Rousseau ideology of “Man is born free but everywhere he is chains” and considered social inequalities nothing but a chain which hampers the growth of a person.He always intended social equality and human rights as he was also victim of cruelty by Hindu fundamentalist in his childhood and thus devotionally worked his time on the earth for the advancement of deprived classes. B.R Ambedkar in his Mook Nayak magazine wrote about caste inequalities and how he feels that caste system in Hinduism is like a tower with no entrance and exit as the people born in upper caste gets all the privilieges even if they do not deserve it and the people born in lower caste even after being deserving does not by any means get the chance to reach to the position of the upper caste. He did not also actually believed in religious scriptures because on  the scriptures on the one side it says that all living and non- living forms are creation of the same god but on the other side says to treat some group of people in such a degrading way or like animals.

Dr. B.R Ambedkar gave many inspiring speeches, did social movements, published various magazines which focused specially on the topic of caste and drafted the constitution in such a way which help people of lower caste to get certain rights and privileges which helps them get included in the mainstream of the population but despite of many efforts by B.R. Ambedkar and leaders like Mohandas Karamchand Gandhi, India is still struggling with the issue of discrimination on the basis of caste. As B.R. Ambedkar in one of his speech told that no British Government can solve the problem of inequality that we suffer. It is “we”, Indians who can solve this problem by establishing a government which is not afraid to amend the social as well as the cultural codes and Sawarj Constitution can henceforth provide us the political power to bring relief to the people[3]. There are various legal frameworks adopted to counter this problem. Article 14 of the Indian Constitution mentions that state shall provide equality before law and equal protection of law to its citizen. Article 15(1) prohibits discrimination on the basis of religion, race, caste, sex, place of birth or any of them and 15(2) states that no person on the above mentioned grounds will be subjected to any liability, restriction or condition with regards to access to shops, restaurants, hotels and places of public entertainment or use of wells, tanks, roads, bathing ghats and places owned wholly or partly by the state fund for the use of public. This Article also specifies that nothing shall prevent the state from make any special provision for the advancement of any socially and educationally backward classes of the citizen or for the schedule caste and the schedule tribe.Article 16 prescribes that no person on the basis of caste, religion, sex, descent, place of birth, residence or any one of them be subjected to any form of discrimination in matter of employment of employment or office under the state and the Parliament can make special provisions for the advancement of social and educationally backward people or for the schedule caste and the schedule tribe. An independent provision is also embedded in the Indian Constitution for the abolishment of the practice of untouchability that is Article 17. Article 25(2) provides for the opening of temples for the Harijans. Many schemes have also been introduced by the Government to create social and economic conditions for this category of people in order to compensate them of what they had been deprived earlier and to bring them in the same position like others. Schemes like;

·  Free coaching for SC and OBC students which help them to appear in competitive examination and get appropriate job in private or public sector.

·  Babu Jagjivan Ram Chhatrawas Yojna aimed to create hostel facilities for students belonging to schedule caste especially girls as it one of the means to achieve quality education. [4]

Their no doubt that government and non- governmental organizations are working hard to eliminate discrimination and create a social structure based on equality. Independent Act like Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 has also been enacted and implemented to curtail this discrimination but still practices like this exist in our country and many criminals acts are also based on this. One of cases of this that were widely reported in India and overseas was of 2 teenage Dalit girls who were gang raped and murdered in the Badua district of Uttar Pradesh in the year 2014.  Cases like these are very common against people of lower caste. As per the analysis of the report of National Crime Records Bureau (NCRB), 2016 crime against Dalit has increased by 25% from 16.3% from 2006. This increase in crime is handicapping the growth of the country and is highlighting to every foreign state the inability of India to provide what is the essence of the constitution and is explicitly mentioned in the preamble that is “Justice” and “Socialism”.

CONCLUSION

Caste system is one of the hindrances in the establishment of an egalitarian society. It is not possible to fully abolish caste system but more efforts should be done to bring each and every caste in same position or in the position where they are no longer in situation from where there is no scope of growth or development. As B.R. Ambedkar once mentioned that society is like a boat where each sailor (caste) should protect and not destroy another sailor because if he intends to create problems for the other sailor it will lead to the destruction of the whole society. [5]

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[1]Oxford Law Dictionary

[2]Quoted by: C.J P.B Gajendragadkar

[3]Ambedkar BAWS, Vol.2(1982),pp503-06

[4]Ministry of Social Justice and Empowerment

[5]Mook Nayak, Issue 1

Pain Is Like Paint By Muskan Jain

I said pain is black,
But before it, it is several colours beginning from blushed pink to red and then it is bluish-green.
Sometimes it is dark purple.
Pain is like the rainbow, but of sorrow, tears and not of joyful rain.

I said pain has no shape,
It is rectangular, sometimes
Sometimes it resembles the cat-scratch on the wall.
Sometimes it is a shape that my mind don't even recognize.

Pain for me is more external,
So intense that my glass bangles breaks.
My skin doesn't seem even now,
And my hair, I have cut them short.
Short enough that his fist won't catch them.

Yesterday, one of my tooth was missing
I said pain is like a space,
A space that enters inside of you and widens itself.
A space where the smallest of the meteor take a leap of death.

Too much pain.
I said pain is like silence.
Just like the pressure cooker's whistle.
An extra sound will burn what is inside of that.
I stay silent, for I don't want more of the colours.
For I don't want more of the paint of pain.

I said all this,
For I am here, with no courage.
But my daughter, .
I want you to gather the strength and courage.
My fingers doesn't move without pain,
But my daughter,
I want you to shout and break the cycle of pain.
For I don't want your skin painted with pain.

Domestic Violence Against Men By Akshay Sharma

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