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The Criminal Law (Amendment) Act, 2013 also known as Nirbhaya Act was brought to protect children and women from sexual offenses and rarest of rare crimes. The addition of section 166A of the Indian Penal Code, 1860 was a step of government to strengthen legislative provisions for timely and effective action in cases of cognizable offenses committed against women. It was a measure to increase safety for women in our country.
FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police take up an investigation of the case. Therefore, it is important to register a complaint with the police regarding the incidence of violence. Already there exists a stigma around reporting such cases to Police but yet few come forward to report but the Police officers hesitate to register FIR. There have been numerous instances of police failing to register an FIR in rape cases, or turning away the victim, or being harshly insensitive. Sexual violence is highly underreported in India due to the insensitiveness of the duty bearer. The authorities in many instances refused to file FIRs or did not record the information provided by the victim appropriately. The failure to register FIRs or register information adequately provided by victims and witnesses of sexual violence has serious implications on the criminal justice system. Section 166A aimed to resolve this problem.National Council is composed of Union Minister of the Ministry of Social Justice and Empowerment who is the Chairperson and representatives from ten central departments. In addition to this it consists of representatives from five states or Union Territories and five members from the transgender community, each from North, South, East, West and northeast regions. We can see that the transgender community is under-represented and is not even diverse.
There has been a rampant and longstanding discrimination against the Transgender community and thus, the slow evolution of the law has only contributed to the evil. The importance of specialized national institutions for the promotion and protection of human rights has been widely recognized. It is especially crucial in the backdrop of multiple human rights violations of the community requiring immediate intervention. Establishing National Council for transgender community is a welcome step. However, it must be ensured that the composition and powers of the Council do not become hindrance for the object sought to be achieved. Representation gives voice to the silenced minorities and repairs the hurt of living in an unequal society. To see one’s community represented addresses and makes responsible the very structure that denied their existence before. So if the community itself is not represented adequately then how will the council be successful in achieving the goal of creating a society where the transgender individuals not only survive but thrive too.The difference between a contract of indemnity and a contract of guarantee is as follow:
Contact of indemnity
1. A contract of indemnification is one in which one party promises to compensate another for any loss incurred as a result of the promisor’s or a third party’s actions.
2. Section 124 of the Indian Contract Act of 1872 defines Contact of indemnity
3. The goal of an indemnity contract is to compensate for a loss.
4. The promisor’s liability is primary under an indemnification contract.
5. There are two parties in an indemnity contract: the indemnifier and the indemnification holder.
6. The promisor cannot sue a third party in the case of an indemnification contract until the promisee relinquishes his right in favour of the promisor.
Contract of guarantee
1. A contract of guarantee is one in which one party guarantees to another that he will complete the contract or compensate the loss if one of their people fails to do so.
2. Section 126 of the Indian Contract Act of 1872 Contract of guarantee
3. The goal of a guaranteed contract is to provide certainty to the promisee.
4. In a guaranteed contract, the principal debtor’s liability is primary, while the surety’s liability is secondary.
5. There are three parties in a guaranteed contract: the creditor, the major debtor, and the surety.yes, sub-agent and substituted agent are in different scope. The main difference between them is as follow:
Sub Agent:
1. A sub-agent is an agent who operates under the supervision of the primary agent.
2. The sub-agent and the principal do not have a direct contract.
3. A sub-agent is liable for any acts committed by the original agent, as well as for acts of deception and wilful wrongdoing committed by the principal.
4. Only when the custom of the trade or the nature of the agency requires it, can an agent designate a sub-agent.
5. A sub-agent receives compensation or commission from the agent.
6. If the sub-agent was not appointed with the primary’s approval, the principal is not liable to third parties for the activities of the sub-agent.
7. The agent is responsible for the sub-agent.
Substituted Agent
1. Because he works under the direction of the principal, a substitute agent is known as the principal’s agent.
2. Because he works under the direction of the principal, a substitute agent is known as the principal’s agent.
3. A substituted agent is solely accountable to the principal.
4. When the agent has express or implicit permission from the principal, he appoints a substitute agent.
5. The substitute agent is compensated or paid a commission by the principal.
6. The substitute agent is compensated or paid a commission by the principal.FIR or First Information Report
The First Information Report is the first information of a cognizable offense (where police have the authority to arrest without warrant) to the police, as defined by Section 154 of the CRPC. The term “first in point of time” is not defined in the Code, but it refers to information about the commission of a criminal offense that is given to the police initially.
The purpose of filing an FIR is to put criminal legislation into action, not to express all of the minor information included therein. The main goal of the F.I.R. is to set the criminal law in motion and to gather information regarding alleged illegal behaviour so that appropriate procedures can be taken to track down and prosecute the perpetrators.
An FIR can be filed by anyone who possesses information regarding the admission of a cognizable offense. It should be submitted at the police station in the affected area, under whose authority the crime occurred.
Any individual who has information of a cognizable offense being committed can go to the police station and file an FIR, following which criminal proceedings can begin. Only the victim doesn’t need to file an FIR; anybody who knows a cognizable offense being committed can file an FIR.
If the cop, somehow, refuses to file an FIR, the victim has the option of filing a private complaint with the appropriate court. The superintendent of police or any other concerned officer might be notified of the complaint.
Preliminary Inquiry
The word inquiry refers to the act of posing a question. A formal investigation is referred to as an inquiry. The practice of preliminary inquiry is described in Section 157 of the CRPC, which specifies that when a police officer receives particular information concerning a cognizable offense, as a result, whenever a police officer receives information on a cognizable offense, he is responsible for filing a report, which must be filed to the magistrate in that jurisdiction.
If any individual receives information on a case involving another person and the offense is not serious, the police in charge shall not proceed with the investigation or may not delegate any officer to do so. If there is no compelling motive to investigate, the investigating officer will not do so.
A preliminary inquiry is a hearing held to evaluate whether or not there is sufficient evidence to carry the case to trial. If the judge determines that there is insufficient evidence, the case will be dismissed and the accused will be allowed to leave; if there is sufficient evidence, the court will order that the accused stand trial, and a trial date will be established.A proposal must be accepted by the other party to constitute a legally binding contract. If the other party accepts a proposal and it is properly conveyed to the party who proposed, it becomes a legally binding contract, as long as the object and consideration are legal and the parties want to form a legal relationship. The parties cannot back out of their promises once it has become a legally enforceable contract. Before the proposal or acceptance is fully communicated to the other party, the parties might cancel it at any time.
A proposal may be revoked at any moment until the final notification of its acceptance as against the proposer, but not thereafter, according to Section 5 of the Indian Contract. An acceptance may be reversed at any point until the acceptance is fully communicated to the acceptor, but not after that. It’s important to put a lot of emphasis on the word “transmission of acceptance.” According to Section 4 of the Indian Contract Act, 1872, communication of acceptance is considered complete when it reaches the knowledge of the person who made the offer.
Acceptance communication can be viewed from a variety of perspectives. The acceptance of the proposal will be considered valid and revocation will be declared ineffective in the given question to be discussed because the acceptance of the proposal will be completed as soon as the letter is put in transmission, i.e. it will be out of the acceptor’s power to make any changes, and revocation of the acceptance will only be completed once the offeror is made aware of the revocation.
Even if the acceptance and revocation were posted by the receiver on different days and reach the offeror on the same day as the acceptance is completed as soon as it becomes out of his power to make any change, using the above-mentioned sections and illustration of the bare act, even if the acceptance and revocation were sent on different days by the receiver and arrived at the offeror on the same day, the acceptance is completed as soon as he is no longer able to make any changes. For revocation of acceptance to be effective, it must be made with the offeror’s knowledge before the acceptance letter is sent.The word “estoppel” creates an absolute bar under this section. A mere admission is conclusive only where it has been acted on by the other party, by creating a substantive right, does oblige the estopped party to make good his representation, in other words it is conclusive. Thus, a heavy burden of proof lies on the part who wants to get rid of his admissions. An estoppel differs from admission, generally, it can’t be taken advantage of by strangers. It binds only parties and privies.
This Section says that an admission is not conclusive proof, but it doesn’t say that an admission is not sufficient proof without corroboration. The express admissions of a party to the suit, or admissions implied from his conduct, are strong evidences against him. A admission doesn’t estop the party who makes it, he is still at liberty to disapprove it by evidence so far as regards his own interest. But if the admission is duly proved and if the person against whom it is proved doesn’t satisfy the court that it was mistaken or untrue, nothing can prevent the court from deciding the case in accordance with it.
This Section gives a right to any private person to arrest the offender without first obtaining a warrant from the Magistrate or informing the police and wait for them to arrest the culprit. As the Section 43, “any private person” and not just private citizens can make the arrest, therefore, it is imperative to include foreigners in the definition.
The pre-requisites for such an arrest are:-
1. The offence must be both non-bailable and cognizable. Broadly speaking, they are characterised as serious offences, thus such provision is given in the CrPC.
2. The offence must be committed in the presence of the private person. Therefore, the right of arrest under Section 43 must be exercised simultaneously with the commission of the offence.
3. After arrest procedures must be followed by the private person as prescribed in the Section 43(1) that is “…without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.” If he fails to do so, he can be prosecuted for the offence of wrongful confinement under Section 342 IPC.If the offence in not “cognizable and non- bailable” but arrest made by the person was a bona fide mistake, he would be protected by Section 79 IPC ( Mistake as defence).
Section 32 of Indian Contract Act,1872 states “Enforcement of Contracts contingent on an event happening” and mentions that when a contract is based on an uncertain future event, such a contract can only be enforced by law on the happening of such event. But when such an event becomes impossible, the contract based on such an event becomes void.
Now, when we see section 36 of Indian Contract Act it states “ Agreements contingent on impossible event void”. Since Section 32 explicitly mentions that impossibility of an event makes a contract based on it void so why does the Bare Act mentions the same in Section 36.Prima facie both the sections similar to each other but on the detailed reading of Section 36, we see that this section mentions a point which is not mentioned in either Section 32 or in the subsequent sections which mentions about contingent contracts. The point which differs this section from the other sections is that it talks about knowledge about the impossibility of the event by the parties to the contract. Section 36 says that when the event on which the contract is based becomes impossible, it makes the said contract void. Further, it also mentions that the voidability of the contract will not depend on the fact whether the parties knew about the impossibility of that event at the time of making such contract or not. Here the knowledge about the impossibility of the event would be immaterial and such a contract would anyhow be void.
If an accused dies due to the negligence of the police while he is in the custody of the police officer would be called custodial death. Section 55A of Criminal Procedure Code,1973 states” Health and safety of arrested person”. It says that it shall be the duty of the person having custody of an accused to take reasonable care of the health and safety of the accused. Which implies that every accused has a right to be reasonably taken care of as far as his health and safety is concerned.
The reasons why custodial deaths take place is because Police officers are the primary investigating agency and they are burned with cases. Police officers are working on deadlines and in order to complete those deadlines they resort to violence and tortures in order to get essential information or confession from the accused. In some cases this torture leads to the death of the accused resulting in Custodial deaths.
The National Human Rights Commission has issued guidelines to be followed in case of custodial death. They have also issued guidelines for Magisterial inquiry in Custodial death cases.
If an accused dies due to the negligence of the police officer, the police officer can be charged under Section 304A of Indian Penal Code,1860 which talks about “ Causing Death by Negligence”- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
If the accused does not die by suffering at the hands of the police officer, the officer doing so can be charged for causing grievous hurt. Police officers can also be charged under sections 330 and 331 of Indian Penal Code. Section 330 states Voluntarily causing hurt to extort confession, or to compel restoration of property. Section 331 states Voluntarily causing grievous hurt to extort confession, or to compel restoration of property.
Accused persons fundamental rights are also infringed when a police officer tortures the person for confession. Article 14 of the Indian Constitution involves equality of all the people before the law and also Article 21 which talks about Right to life and personal liberty gets violated when Police resorts to such confession techniques. The Accused can approach the High Court or the Supreme Court under Article 32 for protection of his fundamental rights. When a person is under police custody it does not mean that he loses his fundamental rights.
Example: A landmark Supreme court case is D. K Basu v. State of West Bengal(1997), wherein the horizons of the meaning of fundamental rights were broadened. The Court was of the opinion that custodial violence, including torture and death in lock-ups, strikes at the rule of law. Custodial violence, including torture and death in prisons, was considered by the court to be one of the worst crimes in a civilized society governed by the rule of law.Reference was made to the case of Neelabati Bahera v. State of Orissa (1993) in which the Supreme Court had held that prisoners and detainees are not deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of the Fundamental Rights of prisoners and detained.Section 43 of Criminal Procedure Code,1973 talks about “ Arrest by private person and procedure on such arrest”. Nowhere, in the section or in the code the term “ Private Person” is defined. By interpreting the above said section, Private Person would mean to include all persons other than the police officer or the magistrate who by specified sections in the code are authorised to arrest any person. Meaning that any person and not just the citizen can make such an arrest.Therefore, even a foreigner can arrest a person as per Section 43. By a reading of this section it is clear that the ambit of this section is quite vast. The legislative intent behind drafting of such a section must be to avoid delay in arresting an offender.
The necessary conditions for such an arrest by Private Person is that the person who is arrested has committed a non-bailable and cognizable offence in the presence of the private person arresting him. A private person can also arrest a person who is a proclaimed offender. A non-bailable offence(sec 2(a))is an offence where bail is not a matter of right but depends on the discretion of the magistrate. A cognizable offence(sec 2(c)) is an offence in which a police officer as per the first schedule or under any other law can arrest a person without a warrant.
A proclaimed offender(sec 82(4)) is a person against whom a warrant is issued and fails to appear before a court, the court in such case pronouncing him a proclaimed offender. As soon as the private person arrests such an offender he should without delay take such person to the police officer or in the absence of such police officer to the nearest police station.Nikah Halala doesn’t constitute an act along the lines of adultery. For adultery to take place the woman should be the wife of another man. And while she is married she has sexual intercourse with a person other than her husband. Another point to be noted here is that for adultery to take place the woman should establish such sexual intercourse without the consent or connivance of her husband. In the process of Nikah Halala, the wife is a divorced wife. If then she establishes sexual relations with some other man it would not constitute adultery because to attract adultery the woman should be a married woman having a husband. Also, Nikah Halala is a process by which a muslim woman may be taken by her husband. In order for her husband to take her back as his wife she has to perform the ritual of Nikah Halal. Nikah Halala involves the cohabitation between the said wife and another man. Here the relationship which the wife establishes is with the consent of the husband, in order for the husband to take her back as his wife. Because of the above stated two reasons Nikah Halala would not be an act along the lines of adultery.
The answer to this question, it’s imperative to understand the meaning of contingent contracts. Contracts in ICA are of two types, absolute and contingent. Under absolute contracts we don’t need prerequisites for the contract to become enforceable. Eg you go to a shop and pay money in return for a commodity. While in a contingent contract there has to be pre existing conditions to form a valid contract, these can be to do or not to do something for an event to happen. Eg the life insurance contract, the requirements for somebody to claim for such insurance depends on the condition that either the person should be hurt or sick or in certain condition deceased, these are the occurrences of certain events for this contract. Sec 31 of ICA defines contingent contracts, and the constituent sections are the rules related to such contracts i.e. 32 to 36. To understand this concept further we need to know the difference between a contract and an agreement. All contracts are agreements, but all agreements are not contracts. According to Sec 10 of ICA there are certain requirements for an agreement to become a contract. After satisfying these conditions an agreement becomes enforceable by law to form a contract. Agreements on the other hand can be valid or void with reference to their enforceability. Sec 32 to 35 talk about contingent contracts but only in sec 36 it’s mentioned agreements contingent on impossible grounds are void. Specifically explaining such agreements can never be contracts and are void ab initio. The clarification was necessary to save the time of the courts. The classification of every contract must depend upon a rational interpretation of the intention of the parties. For Example, promising someone to take them to the moon if they marry him is neither rational nor possible and does not depict any intention to form a legal obligation.
“employee” means, – (i) in respect of an establishment, a person, excluding an apprentice engaged under the Apprentices Act, 1961, employed on wages by such establishment to do any skilled, semi-skilled, unskilled, manual, operational, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied; and (ii) a person declared to be an employee by the appropriate Government; but does not include any member of the Armed Forces of the Union: The proviso in the definition of employee is in the form of a non-obstante clause and it explains who may be considered persons ‘employed’ in a mine.
“worker” means any person (except an apprentice as defined under clause (aa) of section 2 of the Apprentices Act, 1961) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes working journalists and sales promotion employees for the purposes of any proceeding under this Code in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched or otherwise terminated in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person–– (i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who is employed in a supervisory capacity drawing wage of exceeding fifteen thousand rupees per month or an amount as may be notified by the Central Government from time to time.
From the above it is prima facie clear that the definition of employee is wider and seeks to cover a larger group of individuals than that of worker. Whereas the definition of worker is confined to those individuals working in factories and industries by and large. The difference between the two definitions lies in the inclusion of the term manufacturing process and the elements relating to contractors and principal employers. This change has been made as the term contract labour has been defined in detail under the Code, thereby making the addition of that aspect redundant. However, the exclusion of the manufacturing process aspect is a notable change done with the objective of making the definition of the term more inclusive.
Everyone experiences both empowerment and oppression uniquely. Intersectionality is often absent in critical conversations relating to policy and law making despite our knowledge of its importance in these settings. Which leads to this question, how can policies be made when the people they are affecting aren’t present in the conversation? The duty of policy making is often left to a homogeneous group of people who aren’t even affected by the issues being discussed. The capacity of community organizations to monitor, document and respond to discrimination and human rights violations must be strengthened. Training in legal literacy, and public speaking for advocacy are needed. Transgender representation in dialogues around social and legal protection, policy and legal reform, and public sensitization is necessary and the aforesaid cannot be possible without representation of the transgender community The proposed National Council for Transgender Persons does not give adequate representation (it has only 5 seats designated for transgender persons) to the members of the very community it wishes to represent. Moreover, as the Central Government is tasked with the responsibility of nominating members to the Council, this may lead to the government exercising great control over it. Not forget the fact that certain provisions of the Act that may hinder the progress made for transgender rights, the public consultation process seems ill-timed considering the country-wide coronavirus lockdown. The lockdown restricted the movement of the transgender community and made it difficult for them to discuss the rules and provide adequate feedback making the lack of representation in different categories as issue which might cause hindrance to justice and has to be addressed in the future. The right to be recognized as a marginalized group thus appropriate representation be afforded to transgender in all Government instrumentalities and all other groups & organizations whether local or international is a must so that it does not create injustice and the entire reason for which the council and this law was formed or created is not ignored. Thus, a greater representation of transgender members across all categories and in the process of nomination should be an amendment the government and the council should be looking towards.
