Final project report- law and sociology
Submitted to-:
Ms. Arpita Mitra
Subject teacher
Sociology and law
Table of Contents
INTRODUCTION 3
Law 3
Law as custom 3
RELIGION 4
Religion is set of belief 5
SUMMARY OF RELEVANT LITERATURE 5
FINDINGS 5
FUNCTIONS OF LAW- 5
To bring change in society 5
To provide social justice 6
Dispute resolution 6
LAW AND RELIGION CAN NOT GO HAND IN HAND 6
Religions are backward looking 6
Religion is obstacle of state 7
Religion is hurdle for the fulfillment of purpose of law 8
THEOCRATIC STATE AND LAW 8
CONCLUSION. 8
INTRODUCTION
Law
As such, there is no single or correct answer to this question, so this is one of the most difficult term to define. There were many jurist and law makers attempted to define it but no one could be able to define it properly. In past no one really questioned lawmakers, law distributors, or the laws themselves. The best way to define law is by examining the sources of the law and its function. But in general we can say Ubi societas, ibi jus. it means wherever there is society there is law. “a rule of being or of conduct, established by an authority able to enforce its will; a controlling regulation; the mode or order according to which an agent or a power acts” . But if we come to examine what is the social basis of law? It Law is practical craft of systematic control of social relations and institutions . Moreover there were many other philosophers and jurists have attempted to define it according to them. Bentham Jeremy defines law as a law is what a sovereign commands, He stated that 'commands' are expressions of desire that another shall forbear, which is accompanied by a threat of punishment (the "sanction") for disobedience. Austin also defines law as command of sovereign, in his sovereign command he says the command should be on lower authority by higher authority.
Law as custom
There are many law which have derived from custom also. In each and every society there is some custom which is to be followed by that the member of that society.teh experience of pleasure and pain provided the test of success. But the historical struggle for survival went on in groups so that many seeking the same aim tended to come to similar opinions as to what was best more productive of pleasure than pain. Each profited by other’s experience hence there was concurrence towards that which proved to be most expedient. All at last adopted the same way of the same purpose hence the ways turned into customs and became mass phenomena. Instincts were developed in connection with them in this way folkways arise. Folkways are not noticed or consciously considered until long after they have become established. But eventually some folkways come to be seen as good for the welfare of the society. When the judgment of social good is added to folkways they become mores
Law grows or should grow out of the mores. It shaded into them but is distinguished by being backed by state force. Folkways and mores change gradually as the conditions of life change but there is in Sumner’s view little scope for changing them fundamentally through many conscious acts of legislation. When mores accepted by society and approved by state power then it becomes law.
RELIGION
Man is social animal is also a religious or spiritual being. Religion is a major concern of man it is one of the earliest and the deepest interests of the human beings religion is universal permanent pervasive and perennial interests of man. Man not only has biological economic and social needs but also what is known as a religious need. Religion is such a very vague term to define on religion opinions differs from the great religious leader down to an ordinary man; there is no consensus about the nature of religion. Sociologists are very to find a satisfactory explanation of religion.
Durkheim defines in his book the elementary forms of the religious life defines religions a unified system of beliefs and practices relative to sacred things that is to say things set apart and forbidden.
James g Frazer in his the golden bough considered religion a belief in powers superior to man which are believed to direct and control the course of nature and of human life.
Edward Sapir an American anthropologist says that the essence of religion consists in mans never cease attempt to discover a road to spiritual serenity across the perplexities and dangers of daily life.
MacIver and Page have defined religion as we understand the term implies a relationship not merely between man and man but also between man and some higher power.
Max Muller defines religion as a mental faculty or disposition which enables man to apprehend the infinite.
Religion is set of belief
All religious organization depends upon beliefs knowledge and training to exercise influence upon their members. Religious belief is the cognitive aspect of religion. It tries to explain to and origin of sacred things. It assumes that the sacred things do exist. These are the knowledge that belief gives us about the so called sacred object and their links with the super empirical world. But in both the cases belief rests upon an attitude not upon observation it is belief based on faith rather than upon evidence it is in biblical language the substance of things hoped for the evidence of things not seen.
SUMMARY OF RELEVANT LITERATURE
In my research on the tropic law and religion I referred many books on law and religion. In order to make this project first I defined religion and law in different aspect. to define law I followed some books on jurisprudence and law, like salmond on jurisprudence, learning the law , some article provided by ahemed ali sir, moreover some of the social basis law I have also mentioned in my research for that I have referred the book Cottrell the sociology of law second edition.. For the definition of religion I followed the book bunch of thoughts by M.S.Golwalkar, some ideas of Damodar Vinayak Sarvakar on religion, a book written on Hinduism by swami vivekanand. I have also mentioned some basic principles of Islam by referring book Quran and HADITH and one book named Quran and science by Jakir Nayak the founder of Islamic research foundation. In order to prove religion and law cant go hand in hand for that I have to refer some law book. For that I refered a book called secularism and its critics themes in politics and in regard to talking religion in terms of Indian law I referred some books on constitution like m.p.jain on Indian constitution, B.N.Shukla on Indian constitution and a bare act by P.M.Bakshi. dispite all these I referred some internet resources relating law and religion.
FINDINGS
FUNCTIONS OF LAW-
To bring change in society
By looking at definition of social basis of law that the Law is practical craft of systematic control of social relations and institutions it proves that law is such a weapon of state to control social relation and institutions, if any social institution is exercising its power beyond provided law attempts to stop it. In fact we can say that law is the thing which draws the boundary line for each institutions and individuals so that it cannot go beyond its object and domain. Professor Stephen J. Toope President and Vice-Chancellor The University of British Columbia by addressing Lawyers’ in Rights Watch Committee said that social change is meaningless unless it is underpinned by the law . Even The current chief justice of India addressing in lecture in Raipur in Law University; said that law should be used as a tool of social engineering.
To provide social justice
If we see the general definition of law It says is set of rules for the purpose of controlling the people and governance in society. Our constitution of India also in its preamble talks about social justice. The constitution ensures to all of its citizens, justice – social economic and political. Also in directive principle of state policy has been inserted in our constitution for certain principles of policy to be followed by the state which could bring justice and welfare in the society. After 42nd amendment brought by Indira Gandhi there was new article 39A inserted in our constitution by providing equal justice and free legal aid- this article says the state shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. as Aristotle says injustice arises when equals are treated unequally and also when unequal are treated equally, in this situation this is only the law is which tends to resolve this problem, law decide who is equal and who is unequal. Even Indian constitution article 14 also talks about equality before law, the main purpose of this article is to provide equality among equals.
Dispute resolution
Since the law is tool of social control and according to social control theory of john lock the man is by nature is selfish, egoistic, and according to Aristotle, human is social animal so we can say if human being will live together in society then it is necessary to clash of interest among man to man as per the theory given by john Locke. So this is the law which used to solve this problem. Moreover we can se practically in our society day and again the complaints are to be filled by peoples against on othere. It also resolve dispute of state and union in federal country like India.
LAW AND RELIGION CAN NOT GO HAND IN HAND
Religions are backward looking
As Edward Sapir an American anthropologist says that the essence of religion consists in mans never cease attempt to discover a road to spiritual serenity across the perplexities and dangers of daily life. Religion never let the people think any new think. For example we can see the basic principle of ISLAM says ya allah mohammad rusool allah, It means god is great is great nobody is greater than god, and like in other religion like Hinduism and Christinity there are some conservative things which has no any scientific basis. Since each and every religion is very old for example we can see Hinduism is 10000years of old, Islam is 1300 years old, and Christianity is more than 2000 years of old. By the fact we can say that all the principles of any religion is as old as that particular religion is. Amendment in law is easier as compare to religion. Even religion amended through only revolution for example we have example in front of us like DHARM SUDHAR ANDOLAN in India and also beyond India like Europe, prior to dharm sudhar andolan no body could question on church activity. Religion does not accept any change in law contrary to it, even if is need of society for this we have example of COPERNICKS and ISHA MASHIH who had been punished for diverting and discovering new thing apart from religion.
Religion is obstacle of state
If we accept the definition of law given by Austin- it is law as command of sovereign. In Justinian point of view law simply or strictly so called or law set by political superiors to political inferiors. And one of the essential of state is sovereignty; if a state has to be sovereign then he has to be superior to all the body under its boundary. But the basic principles of religions also talks about religious superiority; as I have already said the essential principle of Islam is ya allah Muhammad roosool allah. So this is the place where the conflict arises between state and religion. A state should not have any religion, in country like India which follow the idea of secularism, here all the religion are same this state has not any religion. And right to religion is also given to its citizens by constitution. Article 25,26,27 and 28 talks about different types of freedom about religion. In India state is not allowed to amend any law which is derived from religion. So we can say in secular countries if the state has to make any law regarding any private law of any religion it is not easy. The principle of religion to religion is different and there is very great possibility to conflict between religion to religion principles, for example the cow is considered to object of worship in Hindu religion but in other religion it is like only other animal and its slaughter is allowed in some religion, and in any secular country state has not to promote any of them so the interest of one is harm of religious sentiment of others. So how it can be possible to maintain sovereignty of state. Every time state has to bend in front of religion. In a very famous case named maulana rahamat barakkat ali v. state of bihar in this case the matter comes in front of court regarding performing namaj in loud speaker. The court could not able to give decision properly in favor of state. So these are the problem where the state has to surrender his power in front of religion. So it is obstacles for state to exercise it s sovereignty and power.
Religion is hurdle for the fulfillment of purpose of law
As I have already discussed the purpose of law that is dispute resolution, provide social justice, and to bring change in society. If we see the first purpose that is dispute resolution we can say religion is the thing which always arises disputes, for example the dispute of Manndir and Masjid, we have December 1992 Babri Masjid demolition which arose a lots of dispute around the country, now a days there are some of the extremist parties are claiming some of the masjid around the country as their ancient mandir and for that they gives slogan ye to abhi jhanki hai kasha Mathura baki hai this is the slogan is to be ginven by those people who has demolished babri masjid structure and now they are claiming to other Masjid of Varansi and Mathura as their ancient Mandir so ths is the real face of religion which work is to only creates dispute. In such a situation how can we clam that in existence of religion how the purpose of law could be fulfilled?
THEOCRATIC STATE AND LAW
theocracy is a form of government in which divine power governs an earthly human state, either in a personal incarnation or, more often, via religious institutional representatives, in theocratic state has its own religion everybody is bound to follow that religion, all the law made in such countries is derived from its custom so there is no more problem to follow such customs which they have been following since so long time, and other thing is that their all the laws are according to their religious choice so law and religion can go hand in hand only in theocratic state. But in current globalized world it not easy to be a state totally theocratic, because now current world is globalized village If a theocratic state not makes any law keeping in minds others interest then it is very hard to survive for that country, that theocratic country will go on and on by following its religion and because of that other will be disturbed.
CONCLUSION.
Lastly I would like conclude by saying only this thing that law and religion both are different entity. Although both are the inseparable part of society but both tends to keep itself as superior than one another, so there is every possibility of clash between both of them. As I have already discussed all the difficulties of law and religion so I not need to elaborate here also. If law has to be proper then it has to be strict and if law becomes strict then it is problem to religion it is as like as two swords in one cover.
Friday, March 12, 2010
John Finnis "natural Law Theory"
Jurisprudence final draft
Topic- John Finnis “Natural law theory”
Submitted to-:
Mr.Ahemad Ali Khan
Subject teacher
Constitutional law II
Submitted by-:
Kundan kumar ojha
B.A.LL.B 4th semester
Roll no-883027
Contents
JOHN FINNIS AN INTRODUCTION 3
FINNNIS NATURAL LAW 3
FINNNIS IDEA OF BASIC GOODS 4
FINNIS CHECK OF PRACTICLE REASONABLENESS. 5
FINNIS ON INJUSTICE 6
CONCLUSION 7
Topic- John Finnis “Natural law theory”
KUNDAN KUMAR OJHA
B.A.LL.B 4TH SEM.
ROLL NO-883027
JOHN FINNIS AN INTRODUCTION
FINNIS is one of the most prominent living legal philosophers. His work, Natural Law and Natural Rights, is regarded as one of the definitive works of natural law philosophy. He was born in 1940 and at present He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law.
FINNNIS NATURAL LAW
Natura law in the context of ethics politics law and jurisprudence simply means the set of true proposition indentifying basic human goods general requirement of right choosing and the specific moral norm deducible form those requirements as they bear particular basic goods . We can also say that a natural law theory is nothing other than a theory of good reason for choice. According to John FINNIS, natural law is “the set of principles of practical reasonableness in ordering human life and human community. For those unfamiliar with the term natural law FINNIS is referring to what has been described as moral standards that can justify and guide not only political authority, but also make legal rules rationally binding and shape concept-formation in descriptive social theory. While this is by no means a new endeavor, natural law theory has seen a resurgence of interest5 after a long period of dominance and a relegation to disfavor.
Unlike fuller’s concept of procedural natural law the theory of natural rights advanced by john FINNIS falls unequivocally into the category of natural law theory. Indeed in presenting his case FINNIS places conderable emphasis upon the analysis advanced by St. Thomas Aquinas. In this regard FINNIS states that the principles of natural law are “traced out not only in moral philosophy or ethics and ‘individual conduct’, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. He further asserts that the principles of natural law can explain the obligatory force of positive laws even when such laws cannot be deduced from the principles of natural law. The theory that FINNIS describes in Natural Law and Natural Rights has come to be considered the most authoritative modern statement on natural law9 and with the Supreme Court of the United States directly addressing the issue of morality in cases such as Lawrence v. Texas. the purportedly most authoritative theory on the interaction between law and morality thus deserves some attention. FINNIS’ theory of natural law is divided into three distinct parts each with its own purpose. FINNIS argues that there are first a set of notions that “indicate the basic forms of human flourishing as goods to be pursued and realized” that are known to everyone who thinks about how they should act. These principles are buttressed by “a set of methodological requirements of practical reasonableness” that distinguish between sound and unsound practical thinking and provide the criteria for distinguishing reasonable and unreasonable acts. Following these methodological requirements allows one to distinguish between acting morally right or morally wrong and to formulate a set of general moral standards. in order to determine what are the basic goods which human beings by reason of their narure value FINNIS advances certain generalization about human societies which lead to a mmodel of what things most people on most societies may be considered to think important.
FINNNIS IDEA OF BASIC GOODS
FINNIS argues that despite the very considerable cultural diversity of human societies, there are certain basic concerns which are preponderantly found in a survey of the literature of the anthropological instigations. On the basis of these general concerns FINNIS sets out a model of seven basic forms of human good these are –
a) Life meaning not merely existence but also the capacity of development of potential within the category of life and its preservation FINNIS includes procreation.
b) Knowledge not only as means to an end but as good in its own right, which improves life quality. “reference to the pursuit of knowledge makes intelligible… any particular instance of human activity and commitment involving such pursuit P;ay in essence the capacity for recreational experience and enjoyment. Aesthetic experience in some ways related to play but not necessarily so this is broadly a capacity to experience and relate to some perception of beauty.
a) Socianility or friendship ,occurring at various levels but commonly accepted as good aspect of social life. One might add that this good would seem to be an essential aspect of human conduct as social creatures politikon oom as Aristotle put it
b) Practical reasonableness essentially the capacity to shape ones conduct and attitudes according to some intelligent and reasonable thought process.
c) Religion which is not limited to although it clearly includes religion in ithe formal sence of faith and practices centered upon some sense of the divine. The reference here is to a sense of the responsibility of human beings to some greater order than that of their own individuality.
FINNIS CHECK OF PRACTICLE REASONABLENESS.
One of the great obstacles to any satisfactory completion o f lists of goods or indeed rights in general context lies in the lurking danger of cultural specificity. What is accepted as appropriate in one culture may well not be in another. In order to determine how the goods are to be applied as criteria of evaluation in the context of the operation of real society it is obviously necessary to set up a structured scheme of assessment. This is done through the medium of tests of practice reasonableness which may provide guidance as to what in practice is to be considered tight or wrong in applying the basic goods. The aim of the tests of practice reasonableness is related by FINNIS to be broad methodology of classical naturalist thought in relating moral and ethical criteria to action and consequences. Thus the actual test which FINNIS sets out is
• A coherent life plan meaning a set of harmonious intentions and commitment by reference to which one intends to arrange one’s life.
• No arbitrary preference are to be made amongst values that is to say that a person may not individually choose to aspire to a particular good but that confers no entitlement to regard that good as devalued for example in reference to wishes to others it unduly restricts the range of goods to be considered.
• There must be no arbitrary preferences amongst persons. This requires little comment in modern contest. The last would manifestly exclude for example the varieties of irrational discrimination upon basis of race gender, or other such criteria.
• The significance of efficiency of within reasonable limits meaning that the efficient pursuit of goals and avoidance of harm is a real factor in the application of moral considerations but it cannot be treated in itself as a supreme or central principle.
• Respect for every basic value in every act meaning ultimately that no choice should be made which directly contravenes any basic good.
• Consideration for the common good finis treats this as more or less obvious and indeed as such a requirement would seem inseparable from an assessment of moral relation within a social context.
• People should follow the dictates of their conscience even if that conscience is unbeknown to the actor in error.
FINNIS argues that the tests of practical reasonableness in combination with the basic goods represent the structure of natural law analysis . He also argues that the combination of the basic goods and the ttests of practical reasonableness would enable a society to obviate gross injustice and that they also provide a model of basic rights.
FINNIS ON INJUSTICE
FINNIS identifies four types of injustice in law.
• First, according to FINNIS, the main responsibility of the ruler is to further the common good. A ruler's exercise of power is radically defective if a ruler exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' advantage, or out of malice against some person or group.
• Secondly, except in "emergency" circumstances in which the law (even the constitution) should be bypassed, an office-holder who acts beyond his authority is an abuse of power and an injustice to those treated as subject to it.
• Thirdly, the exercise of authority in conformity with the Rule of Law is for the common good. Therefore, the exercise of power otherwise than according to manner and form is an abuse and an injustice unless those involved consent, or ought to consent, to an accelerated procedure.
• Fourthly, the stipulated may be distributive unjust by appropriating some benefit to a class not reasonably entitled to it, while denying it to other persons; or by imposing on some a burden from which others are, on no just criterion, exempt.
CONCLUSION
In my conclusion part I want to say FINNIS idea of natural law is really interesting. His idea about general good where he says a general good may be derived from particular experience or appreciations of good which is not say that what people in fact want they always ought to have is such an pro society and in people welfare idea. But on the matter of selection of basic goods I am also somewhat disagree that it not possible to select any basic goods without given priority to any other goods, although he has given some test of practice reasonable in order to selection of basic goods.
BIBLIOGRAPHY
Penner.J.e, Maccoubrey and white’s textbook on jurisprudence
Clevaland state law review
John Finnis, Natural law and Natural rights.
Topic- John Finnis “Natural law theory”
Submitted to-:
Mr.Ahemad Ali Khan
Subject teacher
Constitutional law II
Submitted by-:
Kundan kumar ojha
B.A.LL.B 4th semester
Roll no-883027
Contents
JOHN FINNIS AN INTRODUCTION 3
FINNNIS NATURAL LAW 3
FINNNIS IDEA OF BASIC GOODS 4
FINNIS CHECK OF PRACTICLE REASONABLENESS. 5
FINNIS ON INJUSTICE 6
CONCLUSION 7
Topic- John Finnis “Natural law theory”
KUNDAN KUMAR OJHA
B.A.LL.B 4TH SEM.
ROLL NO-883027
JOHN FINNIS AN INTRODUCTION
FINNIS is one of the most prominent living legal philosophers. His work, Natural Law and Natural Rights, is regarded as one of the definitive works of natural law philosophy. He was born in 1940 and at present He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law.
FINNNIS NATURAL LAW
Natura law in the context of ethics politics law and jurisprudence simply means the set of true proposition indentifying basic human goods general requirement of right choosing and the specific moral norm deducible form those requirements as they bear particular basic goods . We can also say that a natural law theory is nothing other than a theory of good reason for choice. According to John FINNIS, natural law is “the set of principles of practical reasonableness in ordering human life and human community. For those unfamiliar with the term natural law FINNIS is referring to what has been described as moral standards that can justify and guide not only political authority, but also make legal rules rationally binding and shape concept-formation in descriptive social theory. While this is by no means a new endeavor, natural law theory has seen a resurgence of interest5 after a long period of dominance and a relegation to disfavor.
Unlike fuller’s concept of procedural natural law the theory of natural rights advanced by john FINNIS falls unequivocally into the category of natural law theory. Indeed in presenting his case FINNIS places conderable emphasis upon the analysis advanced by St. Thomas Aquinas. In this regard FINNIS states that the principles of natural law are “traced out not only in moral philosophy or ethics and ‘individual conduct’, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. He further asserts that the principles of natural law can explain the obligatory force of positive laws even when such laws cannot be deduced from the principles of natural law. The theory that FINNIS describes in Natural Law and Natural Rights has come to be considered the most authoritative modern statement on natural law9 and with the Supreme Court of the United States directly addressing the issue of morality in cases such as Lawrence v. Texas. the purportedly most authoritative theory on the interaction between law and morality thus deserves some attention. FINNIS’ theory of natural law is divided into three distinct parts each with its own purpose. FINNIS argues that there are first a set of notions that “indicate the basic forms of human flourishing as goods to be pursued and realized” that are known to everyone who thinks about how they should act. These principles are buttressed by “a set of methodological requirements of practical reasonableness” that distinguish between sound and unsound practical thinking and provide the criteria for distinguishing reasonable and unreasonable acts. Following these methodological requirements allows one to distinguish between acting morally right or morally wrong and to formulate a set of general moral standards. in order to determine what are the basic goods which human beings by reason of their narure value FINNIS advances certain generalization about human societies which lead to a mmodel of what things most people on most societies may be considered to think important.
FINNNIS IDEA OF BASIC GOODS
FINNIS argues that despite the very considerable cultural diversity of human societies, there are certain basic concerns which are preponderantly found in a survey of the literature of the anthropological instigations. On the basis of these general concerns FINNIS sets out a model of seven basic forms of human good these are –
a) Life meaning not merely existence but also the capacity of development of potential within the category of life and its preservation FINNIS includes procreation.
b) Knowledge not only as means to an end but as good in its own right, which improves life quality. “reference to the pursuit of knowledge makes intelligible… any particular instance of human activity and commitment involving such pursuit P;ay in essence the capacity for recreational experience and enjoyment. Aesthetic experience in some ways related to play but not necessarily so this is broadly a capacity to experience and relate to some perception of beauty.
a) Socianility or friendship ,occurring at various levels but commonly accepted as good aspect of social life. One might add that this good would seem to be an essential aspect of human conduct as social creatures politikon oom as Aristotle put it
b) Practical reasonableness essentially the capacity to shape ones conduct and attitudes according to some intelligent and reasonable thought process.
c) Religion which is not limited to although it clearly includes religion in ithe formal sence of faith and practices centered upon some sense of the divine. The reference here is to a sense of the responsibility of human beings to some greater order than that of their own individuality.
FINNIS CHECK OF PRACTICLE REASONABLENESS.
One of the great obstacles to any satisfactory completion o f lists of goods or indeed rights in general context lies in the lurking danger of cultural specificity. What is accepted as appropriate in one culture may well not be in another. In order to determine how the goods are to be applied as criteria of evaluation in the context of the operation of real society it is obviously necessary to set up a structured scheme of assessment. This is done through the medium of tests of practice reasonableness which may provide guidance as to what in practice is to be considered tight or wrong in applying the basic goods. The aim of the tests of practice reasonableness is related by FINNIS to be broad methodology of classical naturalist thought in relating moral and ethical criteria to action and consequences. Thus the actual test which FINNIS sets out is
• A coherent life plan meaning a set of harmonious intentions and commitment by reference to which one intends to arrange one’s life.
• No arbitrary preference are to be made amongst values that is to say that a person may not individually choose to aspire to a particular good but that confers no entitlement to regard that good as devalued for example in reference to wishes to others it unduly restricts the range of goods to be considered.
• There must be no arbitrary preferences amongst persons. This requires little comment in modern contest. The last would manifestly exclude for example the varieties of irrational discrimination upon basis of race gender, or other such criteria.
• The significance of efficiency of within reasonable limits meaning that the efficient pursuit of goals and avoidance of harm is a real factor in the application of moral considerations but it cannot be treated in itself as a supreme or central principle.
• Respect for every basic value in every act meaning ultimately that no choice should be made which directly contravenes any basic good.
• Consideration for the common good finis treats this as more or less obvious and indeed as such a requirement would seem inseparable from an assessment of moral relation within a social context.
• People should follow the dictates of their conscience even if that conscience is unbeknown to the actor in error.
FINNIS argues that the tests of practical reasonableness in combination with the basic goods represent the structure of natural law analysis . He also argues that the combination of the basic goods and the ttests of practical reasonableness would enable a society to obviate gross injustice and that they also provide a model of basic rights.
FINNIS ON INJUSTICE
FINNIS identifies four types of injustice in law.
• First, according to FINNIS, the main responsibility of the ruler is to further the common good. A ruler's exercise of power is radically defective if a ruler exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' advantage, or out of malice against some person or group.
• Secondly, except in "emergency" circumstances in which the law (even the constitution) should be bypassed, an office-holder who acts beyond his authority is an abuse of power and an injustice to those treated as subject to it.
• Thirdly, the exercise of authority in conformity with the Rule of Law is for the common good. Therefore, the exercise of power otherwise than according to manner and form is an abuse and an injustice unless those involved consent, or ought to consent, to an accelerated procedure.
• Fourthly, the stipulated may be distributive unjust by appropriating some benefit to a class not reasonably entitled to it, while denying it to other persons; or by imposing on some a burden from which others are, on no just criterion, exempt.
CONCLUSION
In my conclusion part I want to say FINNIS idea of natural law is really interesting. His idea about general good where he says a general good may be derived from particular experience or appreciations of good which is not say that what people in fact want they always ought to have is such an pro society and in people welfare idea. But on the matter of selection of basic goods I am also somewhat disagree that it not possible to select any basic goods without given priority to any other goods, although he has given some test of practice reasonable in order to selection of basic goods.
BIBLIOGRAPHY
Penner.J.e, Maccoubrey and white’s textbook on jurisprudence
Clevaland state law review
John Finnis, Natural law and Natural rights.
case comments on- state of madras v V.G.Rao(AIR 1952 SC 196)
Constitutional law final draft
Case comment on the case of
State of Madras Vs. V.G. Row( on behalf of appellant)
Crlj.1952 page no 967.
Submitted to-:
Mr. kumar kartikeyan
Subject teacher
Constitutional law II
Submitted by-:
Kundan kumar ojha
B.A.LL.B 4th semester
Roll no-883027
BRIEF FACT OF THE CASE
On 10 March 1950 State of Tamilnadu by passing an ordinance declared a society named “Peoples Education Society as unlawful by taking a ground that society is Association known as the People's Education Society, has for its object interference with the administration of the Law and the maintenance of law and order, and constitutes a danger to the public peace. V.G.Rao who is chairman of the society claimed this action of the state on the grounds of violation his fundamental right conferred under article 19(1) (c) that is right to form organization. When this case was in high court to be decided on 21 august 1950, before that on 12 august state government brought an amendment in section 15(1) (b) of criminal law amendment act 1908 as amended by criminal law madras amendment act 1950. The amending Act substituted for clause (b) in Section 15 (2) the following clause:-
(b) Which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association -
(i) Constitutes a danger to the public peace, or
(ii) Has interfered or interferes with the maintenance of public order or has such interference for its object, or
(Iii) has interfered or interferes with the administration of the law, or has such interference for its object".
High court by 3 judge bench allowed his petition and grants a certificate to state of madras under article 132 of Indian constitution. Now state of madras has brought this appeal in Supreme Court.
ISSUES
1) Whether the action of government actually abridged the fundamental right of chairman of the peoples education society conferred under article 19(1) (c)?
2) Whether amendment which has been bring in sec-15(2) (b) was justifiable?
ARGUMENTS FOR PETITIONER SIDE
By justifying the raised issue I would like to state the restriction on article 19(1)(c) of the constitution is provided under article 19(4) . Here in this case an affidavit has been filed by that society declaring his agenda and works in the society. The declared objects of the Society as set out in the affidavit of the respondent are :
(a) To encourage, promote, diffuse and popularize useful knowledge in all sciences and more especially social science;
(b) To encourage, prompt diffuse and popularize political education among people;
(c) To encourage promote and popularize the study and understanding of all social and political problems and bring about social and political reforms; and
(d) To promotes encourage and popularize art, literature and drama.
In a counter-affidavit filed on behalf of the appellant by the Deputy Secretary to Government Public Department, that according to information received by the Government, the Society was actively helping the Communist party in Madras which had been declared unlawful in August, 1949 by utilizing its funds through its secretary for carrying on propaganda on behalf of the Party.
By looking this new propaganda of society it appears not in the interest of public order, so nothing in sub clause (c) which can prevent state from making any law on the grounds of violation of public order which is satisfied here.
Moreover the new amended section 15(2)(b)(iii) says has interfered or interferes with the administration of the law, or has such interference for its object". Here the matter which should be emphasize is “or has such interference for its object” which has been found by the Deputy Secretary to Government Public Department, that according to information received by the Government that was Society was actively helping the Communist party in Madras which had been declared unlawful in August, 1949 by utilizing its funds through its secretary for carrying on propaganda on behalf of the Party, and that the declared on objects of the Society were intended to camouflage its real activities. Here this is the fact that shows that the society had such interference with its object that is why on the grounds of section 15(2)(b)(iii) it justified to declare that society unlawful.
In response to 2nd issue raised in this case which is Whether amendment which has been bring in sec 15(2)(b) was justifiable? I would support it by the argument and precedent of case law decided in Dr. N.B. KhareVs. The State of Delhi case where the court said The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law , and four out of five judge bench agreed that if at the prima facia it appears that any organization is creating disturbance to maintain law and order the government can declare it unlawful without notification. The court of khare case also stated that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorized. old section 16 expressly conferred on the Provincial Government power to declare association unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15 (2) (b) as amended, and the reference to the "opinion" of the Government is dropped. This led to some discussion before us as to whether or not the grounds referred to in section 15 (2) (b) as amended are justifiable issues and the amendment brought in section 15(2)(b) was as same as It was in old section 16, and The amending Act substituted for clause (b) in Section 15 (2) the following clause :-
" (b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association -
(i) constitutes a danger to the public peace, or
(ii) Has interfered or interferes with the maintenance of public order or has such interference for its object, or
(iii) has interfered or interferes with the administration of the law, or has such interference for its object". So according to current factual existence it is justifiable
CONCLUSION
At last in my comment part I would like to say the executive action of state government declaring people’s education society unlawful was very much right in the view of restriction conferred in article in article 19(4) of Indian constitution. It was not violating the fundamental right of chairman of that society conferred under art19 (1) (c). And the question of amendment was raised the reasonableness was also reasonable in the eye of Dr. Khare case where 5 judge bench agreed on same contention. And on the behalf of the appellant state of madras I would request to court to accept my appeal and remain on people’s education society as an unlawful society.
Case comment on the case of
State of Madras Vs. V.G. Row( on behalf of appellant)
Crlj.1952 page no 967.
Submitted to-:
Mr. kumar kartikeyan
Subject teacher
Constitutional law II
Submitted by-:
Kundan kumar ojha
B.A.LL.B 4th semester
Roll no-883027
BRIEF FACT OF THE CASE
On 10 March 1950 State of Tamilnadu by passing an ordinance declared a society named “Peoples Education Society as unlawful by taking a ground that society is Association known as the People's Education Society, has for its object interference with the administration of the Law and the maintenance of law and order, and constitutes a danger to the public peace. V.G.Rao who is chairman of the society claimed this action of the state on the grounds of violation his fundamental right conferred under article 19(1) (c) that is right to form organization. When this case was in high court to be decided on 21 august 1950, before that on 12 august state government brought an amendment in section 15(1) (b) of criminal law amendment act 1908 as amended by criminal law madras amendment act 1950. The amending Act substituted for clause (b) in Section 15 (2) the following clause:-
(b) Which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association -
(i) Constitutes a danger to the public peace, or
(ii) Has interfered or interferes with the maintenance of public order or has such interference for its object, or
(Iii) has interfered or interferes with the administration of the law, or has such interference for its object".
High court by 3 judge bench allowed his petition and grants a certificate to state of madras under article 132 of Indian constitution. Now state of madras has brought this appeal in Supreme Court.
ISSUES
1) Whether the action of government actually abridged the fundamental right of chairman of the peoples education society conferred under article 19(1) (c)?
2) Whether amendment which has been bring in sec-15(2) (b) was justifiable?
ARGUMENTS FOR PETITIONER SIDE
By justifying the raised issue I would like to state the restriction on article 19(1)(c) of the constitution is provided under article 19(4) . Here in this case an affidavit has been filed by that society declaring his agenda and works in the society. The declared objects of the Society as set out in the affidavit of the respondent are :
(a) To encourage, promote, diffuse and popularize useful knowledge in all sciences and more especially social science;
(b) To encourage, prompt diffuse and popularize political education among people;
(c) To encourage promote and popularize the study and understanding of all social and political problems and bring about social and political reforms; and
(d) To promotes encourage and popularize art, literature and drama.
In a counter-affidavit filed on behalf of the appellant by the Deputy Secretary to Government Public Department, that according to information received by the Government, the Society was actively helping the Communist party in Madras which had been declared unlawful in August, 1949 by utilizing its funds through its secretary for carrying on propaganda on behalf of the Party.
By looking this new propaganda of society it appears not in the interest of public order, so nothing in sub clause (c) which can prevent state from making any law on the grounds of violation of public order which is satisfied here.
Moreover the new amended section 15(2)(b)(iii) says has interfered or interferes with the administration of the law, or has such interference for its object". Here the matter which should be emphasize is “or has such interference for its object” which has been found by the Deputy Secretary to Government Public Department, that according to information received by the Government that was Society was actively helping the Communist party in Madras which had been declared unlawful in August, 1949 by utilizing its funds through its secretary for carrying on propaganda on behalf of the Party, and that the declared on objects of the Society were intended to camouflage its real activities. Here this is the fact that shows that the society had such interference with its object that is why on the grounds of section 15(2)(b)(iii) it justified to declare that society unlawful.
In response to 2nd issue raised in this case which is Whether amendment which has been bring in sec 15(2)(b) was justifiable? I would support it by the argument and precedent of case law decided in Dr. N.B. KhareVs. The State of Delhi case where the court said The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law , and four out of five judge bench agreed that if at the prima facia it appears that any organization is creating disturbance to maintain law and order the government can declare it unlawful without notification. The court of khare case also stated that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorized. old section 16 expressly conferred on the Provincial Government power to declare association unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15 (2) (b) as amended, and the reference to the "opinion" of the Government is dropped. This led to some discussion before us as to whether or not the grounds referred to in section 15 (2) (b) as amended are justifiable issues and the amendment brought in section 15(2)(b) was as same as It was in old section 16, and The amending Act substituted for clause (b) in Section 15 (2) the following clause :-
" (b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association -
(i) constitutes a danger to the public peace, or
(ii) Has interfered or interferes with the maintenance of public order or has such interference for its object, or
(iii) has interfered or interferes with the administration of the law, or has such interference for its object". So according to current factual existence it is justifiable
CONCLUSION
At last in my comment part I would like to say the executive action of state government declaring people’s education society unlawful was very much right in the view of restriction conferred in article in article 19(4) of Indian constitution. It was not violating the fundamental right of chairman of that society conferred under art19 (1) (c). And the question of amendment was raised the reasonableness was also reasonable in the eye of Dr. Khare case where 5 judge bench agreed on same contention. And on the behalf of the appellant state of madras I would request to court to accept my appeal and remain on people’s education society as an unlawful society.
Gram Nyayalya Act 2008 " A step towards social Justice"
GRAM NYAYALYA ACT 2008 “A STEP TOWARDS SOCIAL JUSTICE”
Manuscript submitted for the “ALL INDIA LAW CONGRESS 2010”
On
(March 27-28, 2010)
Organized by:
Department of Law
Punjab University Chandigarh-160014.
Kundan Kumar Ojha STUDENT OF LAW, B.A.LL.B 2nd year
KIIT LAW SCHOOL, KIIT UNIVERSITY BHUBANESWAR-751024, ORISSA
E-MAIL:Kundan.kls@gmail.com MOB.: +919040272274.
Table of Contents
OBJECTIVE OF THE STUDY 3
METHODOLOGY 3
GRAM NYAYALYA 3
WHAT IS SOCIAL JUSTICE? 4
BACKGROUND OF THE ACT 4
GRAM NAYAYALYA ACT CONSTITUTIONAL POINT OF VIEW 5
FUNCTIONS OR JURISDICTIONS OF GRAM NYAYALAYA ACT 6
BENEFITS OF THIS ACT 8
A STEP TOWARDS SPEEDY JUSTICE 8
REDUCING BURDEN ON HIGHER COURTS 9
JUSTICE FOR ECONOMIC AND SOCIALLY BACKWARD CLASS 10
CONCLUSION 11
OBJECTIVE OF THE STUDY
Since Gram Nyayalya Act is very recent act and its aims to provide social justice at grass root level to poor people and since 75% of Indian population is rural population so the access of justice is not available to everybody, it is very hard to get justice for villagers and in such a situation central government passed this act. My first aim is to find out the constructional validity of this act and after that I will try to examine the provision of this act and by examining the provisions I will try to note that what the benefit is it is going to provide in area of justice. Since no any provision is all in all so there is probability of some difficulties in implementing this act, I will try to examine those difficulties and post implementation difficulties of this act in my research.
METHODOLOGY
In my research I followed doctrinal method of research , this is the method of research where all the data are to be taken for research are only secondary data, in my research also I basically collected secondary data. For those data I accessed KIIT LAW SCHOOL library and some of the data I collected from internet also.
GRAM NYAYALYA
The word Gram Nyayalya is combination of two HINDI words “Gram” and “Nyayalya.” Where Gram means village and Nyayalya means court of justice. Thus Gram Nyayalya literally means court of justice available in villages, where we can define village as a unit of administration for which no municipality is set up section 4 of the Gram Nyayalya Act talks about the headquarter of Gram Nyayalaya, that is The headquarters of every Gram Nyayalaya shall be located at the headquarters of the intermediate PANCHAYAT in which the Gram Nyayalaya is established or such other place as may be notified by the State Government. GRAM PANCHAYAT has been defined in article 243(D) of Indian constitution as an institution by whatever name called of self government constituted under article 243(B) for the rural areas. Whereas court of justice has been defined in section 21 of Indian penal code where the word court of justice denote a judge who is empowered by law to act judicially alone or a body of judges which is empowered by law to act judicially as a body when such judge or body of judge is acting judicially.
WHAT IS SOCIAL JUSTICE?
To know the meaning of justice first of all we will have to find that the injustice is? Aristotle said injustice arises when injustice arises when equals are being treated unequally and also when unequal are being treated equally. Jawn Rawls also talked about the justice, his idea of justice was mainly distributive justice, he talks justice as fairness , he says the distribution of goods in society should be just .the sources should not be confined within some selected personality it should be distribute among such a person’s those who does not have sources.
BACKGROUND OF THE ACT
Indira Gandhi had started Garibi Hatao Aandolan and a 20 point program for the purpose of introducing Lok Adalats, but the main problem which the committee faced was how to solve the legal problems of HARIJANS, women, and poor and needy, in 1978 the concept of Lok Adalats and Legal Aid was introduced . Even Dr. Madhav Menon mentions in his book “Processual Justice of the People” that the hindrance to providing justice to all the people in India because of the prevalence of Caste System. After that Indian Law Commission in 1980 under the chairmanship of Justice Desai published two reports on Urban Litigation and Rural litigation respectively which dealt exclusively with Gram Nyayalaya and their types. Latter on Law commission of India passed his 114th law report on august 12, 1986, on the topic of alternative forum for resolution of dispute at grass level. The journey for this act was not so easy, even its voice again rose by a retired IAS officer in august 1997 by LOKSATTA MOVEMENT. The key goals of this movement included "establishment of local courts for speedy, accessible and affordable justice. Finally on 7th December 2005 there was some communication between National Advisory Council and government of India on Gram Nyayalya bills, in this communication The National Advisory Council carefully examined the issue of establishing local courts all over the country in order to ensure speedy, accessible and efficient justice through citizen-friendly, simple procedures. Accordingly, a recommendation has been sent to the Government along with a draft bill The Government approved that proposal in principle and made a public commitment to this effect. Accordingly, the Law Ministry prepared a draft Gram NYAYALAYAS Bill, 2005, but there was some amendment proposed in that bill by same council. The union government given the approval for pursuance of Gram NYAYALYA bill 2007 in parliament and to move official amendment to RAJYA SABHA on 13th December 2007 and RAJYA SABHA approved this bill in 2008. And this act came into existence on 7th January 2009. The extension of this act to the whole of India except the State of Jammu and Kashmir, the State of Nagaland, the State of Arunachal Pradesh, the State of Sikkim and to the tribal areas. Explanation. In this sub-section, the expression "tribal areas" means the areas specified in Parts I, II, IIA and III of the Table below paragraph 20 of the Sixth Schedule to the Constitution within the State of Assam, the State of Meghalaya, the State of Tripura and the State of Mizoram, respectively.
GRAM NAYAYALYA ACT CONSTITUTIONAL POINT OF VIEW
In each and every constitution around all over the different countries in the world, it has its goal, without any goal or any aim any constitution is not full. Indian constitution has also some of its goals which has mentioned in its preamble and Directive Principle of State policy. The preamble of our constitution secure justice liberty equality and fraternity of all citizens. In this preamble part justice talks about the “justice” that is social, economical and political. The Gram NYAYALYA act is passed by the parliament for the purpose of “provide for the establishment of Gram NYAYALAYAS at the grass roots level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith or incidental thereto”. Since The Gram NYAYALAYA would be a body for administration of justice, and legislation for the same would squarely fall under Entry 11-A of the Concurrent List. Entry 11A says administration of justice constitution and organization of all courts except the Supreme Court and high courts. So this is the act valid under this entry and on this act both the union and the state will have power to make law relating to it. Moreover Directive principles are designed to usher in a social and economic democracy in the country. The preamble of the constitution read with directive principles in arts 38, 42, 43, 46, and 48A promote the concept of social economic and political equality. Social justice is to attain a substantial degree of social economic and political equality. Social justice is device to mitigate the suffering of the poor weak, tribes and the deprived sections of the society and to elevate them so that they can live with dignity. The supreme court of India in case of S.E.S.C. Ltd. v. S.C.Bose it was held that right to social and economic justice has now became a fundamental right. Article 21 also talks about protection of life and liberty. This article says that no person shall be deprived of his life or personal liberty except procedure established by law, if somebody deprives of his right conferred in article 21without procedure established by law it will be unjust. The supreme court has taken recourse to art 39A to interpret art 21 to include therein the right to livelihood the supreme court has observed in Olga Tellis v. Bombay Municipal Corporation laid down “if there is an obligation upon the state to secure to the citizens an adequate means of livelihood and the right to world it would be sheer pedantry to exclude the right to life. Here this act also sought to give justice at grass root level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities. So the importance of article 39A is so long as it is part of right to life.
FUNCTIONS OR JURISDICTIONS OF GRAM NYAYALAYA ACT
Chapter 3 section 11 to 17 of Gram Nyayalya act talks about its jurisdiction, powers and authority of Gram Nyayalaya. It talks both civil and criminal cases can be decided by the Gram Nyayalaya. First schedule of the Bill contains the list of offences. Section 11 of this act says Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or the Code of Civil Procedure, 1908 or any other law for the time being in force, the Gram Nyayalaya shall exercise both civil and criminal jurisdiction in the manner and to the extent provided under this Act moreover it has its criminal jurisdiction and civil jurisdiction also conferred in its section 12, 13 accordingly.
Criminal jurisdiction- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force, the Gram Nyayalaya may take cognizance of an offence on a complaint or on a police report and shall- (a) try all offences specified in Part I of the First Schedule; and (b) try all offences and grant relief, if any, specified under the enactments included in Part II of that Schedule. (2) Without prejudice to the provisions of sub-section (1), the Gram Nyayalaya shall also try all such offences or grant such relief under the State Acts which may be notified by the State Government under sub-section (3) of section 14. Moreover for the purpose of fast settlement of dispute section 19 and section 20 of this act have been provided whereas in trial of criminal case it follow summary trial procedure and plea bargaining process respectively.
Civil jurisdiction- (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law for the time being in force, and subject to sub-section (2), the Gram Nyayalaya shall have jurisdiction to- (a) try all suits or proceedings of a civil nature falling under the classes of disputes specified in Part I of the Second Schedule; (b) try all classes of claims and disputes which may be notified by the Central Government under sub-section (1) of section 14 and by the State Government under sub-section (3) of the said section. (2) The pecuniary limits of the Gram Nyayalaya shall be such as may be specified by the High Court, in consultation with the State Government, by notification, from time to time. Under civil dispute this court will decide cases relating to Boundary disputes and encroachment, Right to purchase, Use of common pasture, Entries in revenue records, Regulation and timing of taking water from irrigation channel, Disputes as to assessment. As same as in trial of criminal cases in civil matter also under section 24 of this act there is provision for special procedure in civil dispute.
Provisions of the Evidence act will not apply to the Gram Nyayalayas. Evidence as such will be presented before the Judge but then not under the provisions of the aforementioned Act. Principles of natural justice will apply in deciding a case of Gram Nyayalaya . There are two types of limitation is provided in section 15 of this act those limitation are
l) The provisions of the Limitation Act, 1963 shall be applicable to the suits triable by the Gram Nyayalaya.
2) The provisions of Chapter XXXVI of the Code of Criminal Procedure, 1973 shall be applicable in respect of the offences tribal by the Gram Nyayalaya.
BENEFITS OF THIS ACT
A STEP TOWARDS SPEEDY JUSTICE
As we all know that “justice delayed is justice” it means if there is delay in delivery in justice there is no value of that justice. There are some section inserted in this acts which could take step towards speedy justice after its implementation. Section 22(1) of this talks about pronouncement of judgment which says The judgment in every trial shall be pronounced by the Nyayadhikari in open court immediately after the termination of the trial or at any subsequent time, not exceeding fifteen days, of which notice shall be given to the parties. The two main sections of this act which could help in speedy justice is section 19 and section 20 respectively. Whereas section 19 says Gram Nyayalaya to follow summary trial procedure. - (1) Notwithstanding anything contained in sub-section (1) of section 260 or sub-section (2) of section 262 of the Code of Criminal Procedure, 1973, the Gram Nyayalaya shall try the offences in a summary way in accordance with the procedure specified in Chapter XXI of the said Code and the provisions of sub-section (1) of section 262 and sections 263 to 265 of the said Code, shall, so far as may be, apply to such trial. (2) When, in the course of a summary trial, it appears to the Nyayadhikari that the nature of the case is such that it is undesirable to try it summarily, the Nyayadhikari shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided under the Code of Criminal Procedure, 1973. And 20 talks about plea bargaining process. Plea bargaining before Gram Nyayalaya. - A person accused of an offence may file an application for plea bargaining in Gram Nyayalaya in which such offence is pending trial and the Gram Nyayalaya shall dispose of the case in accordance with the provisions of Chapter XXIA of the Code of Criminal Procedure, 1973.
REDUCING BURDEN ON HIGHER COURTS
As we all know India is very large country every day the process of dispute is going and in same speed the cases are being filled in the courts. The rate of filling the case is so high, as a result we can see the rate of filling the case in last few years was found more than 28% . According to statement made by law minister of India in Indian parliament on 17th December 2009 total of 31,139,022 cases were pending in in the courts across the country. Section 16 of Gram Nyayalaya act 2008 sets out a provision relating to transferring the cases pending in higher courts. This section says (1) The District Court or the Court of Session, as the case may be, with effect from such date as may be notified by the High Court, may transfer all the civil or criminal cases, pending before the courts subordinate to it, to the Gram Nyayalaya competent to try or dispose of such cases. (2) The Gram Nyayalaya may, in its discretion, either retry the cases or proceed from the stage at which it was transferred to it. According to the agenda note to discuss resolution on pending cases at the end of 2008 the arrears of civil and criminal cases pending disposal in the various high courts were 38, 74,090. Out of which 31, 03,352 are civil and 7, 70,738 criminal cases. In subordinate courts the total pendency of cases at the end of 2008 was 2,64,09011 out of which ,88,69,163 are criminal and 75,39,848 civil cases. As soon as this act come into force the pending cases in subordinate courts will be transferred to Gram Nyayalyas under the provision of section 16 of this act. Thus the way it will help to reduce burden on higher courts. On sept-27th 2009 Union Law and Justice Minister M.Veerappa Moily talked about establishment of Gram Nyayalyas he hoped that 5,000 Gram Nyayalayas will be set up across the country in three years. They will try to clear lakhs of cases pending in various courts. "Two hundred Gram Nyayalayas was supposed to set up from October 2 and they can help in clearing half of the pending cases in six months. On November 19,2009 law minister again declared to set up 193 village courts. If this act comes into the force then 2, 64, 09011 pending cases in subordinate courts across the country will be transferred to Gram Nyayalya under the provision conferred in section 16 of the said act.
JUSTICE FOR ECONOMIC AND SOCIALLY BACKWARD CLASS
The issue of 'Justice' to Aam Aadmi was never raised as an election issue. As we all know that Indian constitution in its preamble only enshrines Justice that is Social, Economic, and Political. Article 39A of constitution of India inserted in constitution by 42nd amendment act 1976. This article talks about the aim of the state that state shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other away to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The provisions of this act also talks about free justice of grass route level. Many people do not get justice because of corruption and not availability of money because now days court proceedings are also not cheap. So section 9 of this act talks about the mobile court , in this type of courts there is no provision of lawyers and court fee, here according to clause 1 of this section The Nyayadhikari shall periodically visit the villages falling under his jurisdiction and conduct trial or proceedings at any place which he considers is in close proximity to the place where the parties ordinarily reside or where the whole or part of the cause of action had arisen: Provided that where the Gram Nyayalaya decides to hold mobile court outside its headquarters, it shall give wide publicity as to the date and place where it proposes to hold mobile court. For the purpose of transparency there is provision under section 8 which says Nyayadhikari not to preside over proceedings in which he is interested. - The Nyayadhikari shall not preside over the proceedings of a Gram Nyayalaya in which he has any interest or is otherwise involved in the subject matter of the dispute or is related to any party to such proceedings and in such a case, the Nyayadhikari shall refer the matter to the District Court or the Court of Session, as the case may be, for transferring it to any other Nyayadhikari. For the purpose of fair justice the provision has been introduced in the bill of Gram Nyayalya. Section 8 says (1) A Nyayadhikari may be removed from his office on the ground of incompetence, gross negligence, corruption, malfeasance or conduct unbecoming of a Nyayadhikari. (2) Any person who has been removed from the office of Nyayadhikari shall be ineligible for appointment under the Government. Moreover for the betterment of this act there is there is section provided that is section 35. Assistance of police to Gram Nyayalayas. - (1) Every police officer functioning within the local limits of jurisdiction of a Gram Nyayalaya shall be bound to assist the Gram Nyayalaya in the exercise of its lawful authority. (2) Whenever the Gram Nyayalaya, in the discharge of its functions, directs a revenue officer or police officer or Government servant to provide assistance to the Gram Nyayalaya, he shall be bound to provide such assistance.
CONCLUSION
Lastly I would like to conclude by saying that Gram Nyayalya act is new revolution in country like India where crores of people waiting for their chance to justice. Once it was recommended the establishing Gram Nyayalayas as the lowest tier of the judiciary for rural areas of rural Gujrat, around 225 villages. But for that estimated total expenditure of Rs 300 crore for developing the infrastructure of gram nyayalayas across the state, said by M H Shah, Secretary, Legal Department, and Government of Gujarat. On 19 November 2009 In a written statement to the Lok Sabha, Union Law and Justice Minister, M. Veerappa Moily said establishment of Gram Nyayalayas subject to a ceiling of Rs.18.00 lakhs per Gram Nyayalaya. Although it will be a huge amount of money to establish Gram Nyayalya but it will change the face of India.
Manuscript submitted for the “ALL INDIA LAW CONGRESS 2010”
On
(March 27-28, 2010)
Organized by:
Department of Law
Punjab University Chandigarh-160014.
Kundan Kumar Ojha STUDENT OF LAW, B.A.LL.B 2nd year
KIIT LAW SCHOOL, KIIT UNIVERSITY BHUBANESWAR-751024, ORISSA
E-MAIL:Kundan.kls@gmail.com MOB.: +919040272274.
Table of Contents
OBJECTIVE OF THE STUDY 3
METHODOLOGY 3
GRAM NYAYALYA 3
WHAT IS SOCIAL JUSTICE? 4
BACKGROUND OF THE ACT 4
GRAM NAYAYALYA ACT CONSTITUTIONAL POINT OF VIEW 5
FUNCTIONS OR JURISDICTIONS OF GRAM NYAYALAYA ACT 6
BENEFITS OF THIS ACT 8
A STEP TOWARDS SPEEDY JUSTICE 8
REDUCING BURDEN ON HIGHER COURTS 9
JUSTICE FOR ECONOMIC AND SOCIALLY BACKWARD CLASS 10
CONCLUSION 11
OBJECTIVE OF THE STUDY
Since Gram Nyayalya Act is very recent act and its aims to provide social justice at grass root level to poor people and since 75% of Indian population is rural population so the access of justice is not available to everybody, it is very hard to get justice for villagers and in such a situation central government passed this act. My first aim is to find out the constructional validity of this act and after that I will try to examine the provision of this act and by examining the provisions I will try to note that what the benefit is it is going to provide in area of justice. Since no any provision is all in all so there is probability of some difficulties in implementing this act, I will try to examine those difficulties and post implementation difficulties of this act in my research.
METHODOLOGY
In my research I followed doctrinal method of research , this is the method of research where all the data are to be taken for research are only secondary data, in my research also I basically collected secondary data. For those data I accessed KIIT LAW SCHOOL library and some of the data I collected from internet also.
GRAM NYAYALYA
The word Gram Nyayalya is combination of two HINDI words “Gram” and “Nyayalya.” Where Gram means village and Nyayalya means court of justice. Thus Gram Nyayalya literally means court of justice available in villages, where we can define village as a unit of administration for which no municipality is set up section 4 of the Gram Nyayalya Act talks about the headquarter of Gram Nyayalaya, that is The headquarters of every Gram Nyayalaya shall be located at the headquarters of the intermediate PANCHAYAT in which the Gram Nyayalaya is established or such other place as may be notified by the State Government. GRAM PANCHAYAT has been defined in article 243(D) of Indian constitution as an institution by whatever name called of self government constituted under article 243(B) for the rural areas. Whereas court of justice has been defined in section 21 of Indian penal code where the word court of justice denote a judge who is empowered by law to act judicially alone or a body of judges which is empowered by law to act judicially as a body when such judge or body of judge is acting judicially.
WHAT IS SOCIAL JUSTICE?
To know the meaning of justice first of all we will have to find that the injustice is? Aristotle said injustice arises when injustice arises when equals are being treated unequally and also when unequal are being treated equally. Jawn Rawls also talked about the justice, his idea of justice was mainly distributive justice, he talks justice as fairness , he says the distribution of goods in society should be just .the sources should not be confined within some selected personality it should be distribute among such a person’s those who does not have sources.
BACKGROUND OF THE ACT
Indira Gandhi had started Garibi Hatao Aandolan and a 20 point program for the purpose of introducing Lok Adalats, but the main problem which the committee faced was how to solve the legal problems of HARIJANS, women, and poor and needy, in 1978 the concept of Lok Adalats and Legal Aid was introduced . Even Dr. Madhav Menon mentions in his book “Processual Justice of the People” that the hindrance to providing justice to all the people in India because of the prevalence of Caste System. After that Indian Law Commission in 1980 under the chairmanship of Justice Desai published two reports on Urban Litigation and Rural litigation respectively which dealt exclusively with Gram Nyayalaya and their types. Latter on Law commission of India passed his 114th law report on august 12, 1986, on the topic of alternative forum for resolution of dispute at grass level. The journey for this act was not so easy, even its voice again rose by a retired IAS officer in august 1997 by LOKSATTA MOVEMENT. The key goals of this movement included "establishment of local courts for speedy, accessible and affordable justice. Finally on 7th December 2005 there was some communication between National Advisory Council and government of India on Gram Nyayalya bills, in this communication The National Advisory Council carefully examined the issue of establishing local courts all over the country in order to ensure speedy, accessible and efficient justice through citizen-friendly, simple procedures. Accordingly, a recommendation has been sent to the Government along with a draft bill The Government approved that proposal in principle and made a public commitment to this effect. Accordingly, the Law Ministry prepared a draft Gram NYAYALAYAS Bill, 2005, but there was some amendment proposed in that bill by same council. The union government given the approval for pursuance of Gram NYAYALYA bill 2007 in parliament and to move official amendment to RAJYA SABHA on 13th December 2007 and RAJYA SABHA approved this bill in 2008. And this act came into existence on 7th January 2009. The extension of this act to the whole of India except the State of Jammu and Kashmir, the State of Nagaland, the State of Arunachal Pradesh, the State of Sikkim and to the tribal areas. Explanation. In this sub-section, the expression "tribal areas" means the areas specified in Parts I, II, IIA and III of the Table below paragraph 20 of the Sixth Schedule to the Constitution within the State of Assam, the State of Meghalaya, the State of Tripura and the State of Mizoram, respectively.
GRAM NAYAYALYA ACT CONSTITUTIONAL POINT OF VIEW
In each and every constitution around all over the different countries in the world, it has its goal, without any goal or any aim any constitution is not full. Indian constitution has also some of its goals which has mentioned in its preamble and Directive Principle of State policy. The preamble of our constitution secure justice liberty equality and fraternity of all citizens. In this preamble part justice talks about the “justice” that is social, economical and political. The Gram NYAYALYA act is passed by the parliament for the purpose of “provide for the establishment of Gram NYAYALAYAS at the grass roots level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith or incidental thereto”. Since The Gram NYAYALAYA would be a body for administration of justice, and legislation for the same would squarely fall under Entry 11-A of the Concurrent List. Entry 11A says administration of justice constitution and organization of all courts except the Supreme Court and high courts. So this is the act valid under this entry and on this act both the union and the state will have power to make law relating to it. Moreover Directive principles are designed to usher in a social and economic democracy in the country. The preamble of the constitution read with directive principles in arts 38, 42, 43, 46, and 48A promote the concept of social economic and political equality. Social justice is to attain a substantial degree of social economic and political equality. Social justice is device to mitigate the suffering of the poor weak, tribes and the deprived sections of the society and to elevate them so that they can live with dignity. The supreme court of India in case of S.E.S.C. Ltd. v. S.C.Bose it was held that right to social and economic justice has now became a fundamental right. Article 21 also talks about protection of life and liberty. This article says that no person shall be deprived of his life or personal liberty except procedure established by law, if somebody deprives of his right conferred in article 21without procedure established by law it will be unjust. The supreme court has taken recourse to art 39A to interpret art 21 to include therein the right to livelihood the supreme court has observed in Olga Tellis v. Bombay Municipal Corporation laid down “if there is an obligation upon the state to secure to the citizens an adequate means of livelihood and the right to world it would be sheer pedantry to exclude the right to life. Here this act also sought to give justice at grass root level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities. So the importance of article 39A is so long as it is part of right to life.
FUNCTIONS OR JURISDICTIONS OF GRAM NYAYALAYA ACT
Chapter 3 section 11 to 17 of Gram Nyayalya act talks about its jurisdiction, powers and authority of Gram Nyayalaya. It talks both civil and criminal cases can be decided by the Gram Nyayalaya. First schedule of the Bill contains the list of offences. Section 11 of this act says Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or the Code of Civil Procedure, 1908 or any other law for the time being in force, the Gram Nyayalaya shall exercise both civil and criminal jurisdiction in the manner and to the extent provided under this Act moreover it has its criminal jurisdiction and civil jurisdiction also conferred in its section 12, 13 accordingly.
Criminal jurisdiction- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force, the Gram Nyayalaya may take cognizance of an offence on a complaint or on a police report and shall- (a) try all offences specified in Part I of the First Schedule; and (b) try all offences and grant relief, if any, specified under the enactments included in Part II of that Schedule. (2) Without prejudice to the provisions of sub-section (1), the Gram Nyayalaya shall also try all such offences or grant such relief under the State Acts which may be notified by the State Government under sub-section (3) of section 14. Moreover for the purpose of fast settlement of dispute section 19 and section 20 of this act have been provided whereas in trial of criminal case it follow summary trial procedure and plea bargaining process respectively.
Civil jurisdiction- (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law for the time being in force, and subject to sub-section (2), the Gram Nyayalaya shall have jurisdiction to- (a) try all suits or proceedings of a civil nature falling under the classes of disputes specified in Part I of the Second Schedule; (b) try all classes of claims and disputes which may be notified by the Central Government under sub-section (1) of section 14 and by the State Government under sub-section (3) of the said section. (2) The pecuniary limits of the Gram Nyayalaya shall be such as may be specified by the High Court, in consultation with the State Government, by notification, from time to time. Under civil dispute this court will decide cases relating to Boundary disputes and encroachment, Right to purchase, Use of common pasture, Entries in revenue records, Regulation and timing of taking water from irrigation channel, Disputes as to assessment. As same as in trial of criminal cases in civil matter also under section 24 of this act there is provision for special procedure in civil dispute.
Provisions of the Evidence act will not apply to the Gram Nyayalayas. Evidence as such will be presented before the Judge but then not under the provisions of the aforementioned Act. Principles of natural justice will apply in deciding a case of Gram Nyayalaya . There are two types of limitation is provided in section 15 of this act those limitation are
l) The provisions of the Limitation Act, 1963 shall be applicable to the suits triable by the Gram Nyayalaya.
2) The provisions of Chapter XXXVI of the Code of Criminal Procedure, 1973 shall be applicable in respect of the offences tribal by the Gram Nyayalaya.
BENEFITS OF THIS ACT
A STEP TOWARDS SPEEDY JUSTICE
As we all know that “justice delayed is justice” it means if there is delay in delivery in justice there is no value of that justice. There are some section inserted in this acts which could take step towards speedy justice after its implementation. Section 22(1) of this talks about pronouncement of judgment which says The judgment in every trial shall be pronounced by the Nyayadhikari in open court immediately after the termination of the trial or at any subsequent time, not exceeding fifteen days, of which notice shall be given to the parties. The two main sections of this act which could help in speedy justice is section 19 and section 20 respectively. Whereas section 19 says Gram Nyayalaya to follow summary trial procedure. - (1) Notwithstanding anything contained in sub-section (1) of section 260 or sub-section (2) of section 262 of the Code of Criminal Procedure, 1973, the Gram Nyayalaya shall try the offences in a summary way in accordance with the procedure specified in Chapter XXI of the said Code and the provisions of sub-section (1) of section 262 and sections 263 to 265 of the said Code, shall, so far as may be, apply to such trial. (2) When, in the course of a summary trial, it appears to the Nyayadhikari that the nature of the case is such that it is undesirable to try it summarily, the Nyayadhikari shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided under the Code of Criminal Procedure, 1973. And 20 talks about plea bargaining process. Plea bargaining before Gram Nyayalaya. - A person accused of an offence may file an application for plea bargaining in Gram Nyayalaya in which such offence is pending trial and the Gram Nyayalaya shall dispose of the case in accordance with the provisions of Chapter XXIA of the Code of Criminal Procedure, 1973.
REDUCING BURDEN ON HIGHER COURTS
As we all know India is very large country every day the process of dispute is going and in same speed the cases are being filled in the courts. The rate of filling the case is so high, as a result we can see the rate of filling the case in last few years was found more than 28% . According to statement made by law minister of India in Indian parliament on 17th December 2009 total of 31,139,022 cases were pending in in the courts across the country. Section 16 of Gram Nyayalaya act 2008 sets out a provision relating to transferring the cases pending in higher courts. This section says (1) The District Court or the Court of Session, as the case may be, with effect from such date as may be notified by the High Court, may transfer all the civil or criminal cases, pending before the courts subordinate to it, to the Gram Nyayalaya competent to try or dispose of such cases. (2) The Gram Nyayalaya may, in its discretion, either retry the cases or proceed from the stage at which it was transferred to it. According to the agenda note to discuss resolution on pending cases at the end of 2008 the arrears of civil and criminal cases pending disposal in the various high courts were 38, 74,090. Out of which 31, 03,352 are civil and 7, 70,738 criminal cases. In subordinate courts the total pendency of cases at the end of 2008 was 2,64,09011 out of which ,88,69,163 are criminal and 75,39,848 civil cases. As soon as this act come into force the pending cases in subordinate courts will be transferred to Gram Nyayalyas under the provision of section 16 of this act. Thus the way it will help to reduce burden on higher courts. On sept-27th 2009 Union Law and Justice Minister M.Veerappa Moily talked about establishment of Gram Nyayalyas he hoped that 5,000 Gram Nyayalayas will be set up across the country in three years. They will try to clear lakhs of cases pending in various courts. "Two hundred Gram Nyayalayas was supposed to set up from October 2 and they can help in clearing half of the pending cases in six months. On November 19,2009 law minister again declared to set up 193 village courts. If this act comes into the force then 2, 64, 09011 pending cases in subordinate courts across the country will be transferred to Gram Nyayalya under the provision conferred in section 16 of the said act.
JUSTICE FOR ECONOMIC AND SOCIALLY BACKWARD CLASS
The issue of 'Justice' to Aam Aadmi was never raised as an election issue. As we all know that Indian constitution in its preamble only enshrines Justice that is Social, Economic, and Political. Article 39A of constitution of India inserted in constitution by 42nd amendment act 1976. This article talks about the aim of the state that state shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other away to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The provisions of this act also talks about free justice of grass route level. Many people do not get justice because of corruption and not availability of money because now days court proceedings are also not cheap. So section 9 of this act talks about the mobile court , in this type of courts there is no provision of lawyers and court fee, here according to clause 1 of this section The Nyayadhikari shall periodically visit the villages falling under his jurisdiction and conduct trial or proceedings at any place which he considers is in close proximity to the place where the parties ordinarily reside or where the whole or part of the cause of action had arisen: Provided that where the Gram Nyayalaya decides to hold mobile court outside its headquarters, it shall give wide publicity as to the date and place where it proposes to hold mobile court. For the purpose of transparency there is provision under section 8 which says Nyayadhikari not to preside over proceedings in which he is interested. - The Nyayadhikari shall not preside over the proceedings of a Gram Nyayalaya in which he has any interest or is otherwise involved in the subject matter of the dispute or is related to any party to such proceedings and in such a case, the Nyayadhikari shall refer the matter to the District Court or the Court of Session, as the case may be, for transferring it to any other Nyayadhikari. For the purpose of fair justice the provision has been introduced in the bill of Gram Nyayalya. Section 8 says (1) A Nyayadhikari may be removed from his office on the ground of incompetence, gross negligence, corruption, malfeasance or conduct unbecoming of a Nyayadhikari. (2) Any person who has been removed from the office of Nyayadhikari shall be ineligible for appointment under the Government. Moreover for the betterment of this act there is there is section provided that is section 35. Assistance of police to Gram Nyayalayas. - (1) Every police officer functioning within the local limits of jurisdiction of a Gram Nyayalaya shall be bound to assist the Gram Nyayalaya in the exercise of its lawful authority. (2) Whenever the Gram Nyayalaya, in the discharge of its functions, directs a revenue officer or police officer or Government servant to provide assistance to the Gram Nyayalaya, he shall be bound to provide such assistance.
CONCLUSION
Lastly I would like to conclude by saying that Gram Nyayalya act is new revolution in country like India where crores of people waiting for their chance to justice. Once it was recommended the establishing Gram Nyayalayas as the lowest tier of the judiciary for rural areas of rural Gujrat, around 225 villages. But for that estimated total expenditure of Rs 300 crore for developing the infrastructure of gram nyayalayas across the state, said by M H Shah, Secretary, Legal Department, and Government of Gujarat. On 19 November 2009 In a written statement to the Lok Sabha, Union Law and Justice Minister, M. Veerappa Moily said establishment of Gram Nyayalayas subject to a ceiling of Rs.18.00 lakhs per Gram Nyayalaya. Although it will be a huge amount of money to establish Gram Nyayalya but it will change the face of India.
Nrega & Nation building
NREGA AND NATION BUILDING
Nation building
Definition-: Nation building refers to the process of constructing or structuring a national identity using the power of the state. Nation-building can involve the use of propaganda or major infrastructure development to foster social harmony and economic growth . Journalists sometimes use this term to refer to government policies that are designed to create a strong sense of national identity in the mind . Nation-building is the most common form of a process of collective identity formation with a view to legitimizing public power within a given territory. The term “nation-building” came into vogue among historically oriented political scientists in the 1950s and 1960s , Nation-building theory was primarily used to describe the processes of national integration and consolidation that lead up to the establishment of the modern nation-state--as distinct from various form of traditional states, such as feudal and dynastic states, church states, empires, etc . The other accepted understanding was that Nation-building is a key concept of foreign, security and development policy in the 1950s and 60s, in particular. At that time, it was closely related to the modernization theories . Nation-building is, a process of socio-political development, which ideally – usually over a longer historical time span – allows initially loosely linked communities to become a common society with a nation-state corresponding to it . Building a nation is not only by 'encouraging' arts and culture to 'flourish' using government funds.
Various aspects of nation building-: After examining these different definitions of nation building, we have concluded that there may be many aspects of nation building. But it is also the process which aims at the unification of the people or people within the state so that it remains politically stable and viable in the long run. In short we can say that there are many factors which contribute to build a nation, such as societal development, social justice, there should not be any gap between elite class and backward class. We will examine these aspects one by one.
Social aspect- To build any nation-state the development of its society is of utmost importance. We can argue that nation-state can be built by balancing the gap between lower class and upper class people, abrogating all kinds of discrimination like untouchability between lower and upper castes, equality between the genders etc. and all such measures that ensure social justice.
Economic aspect- if we talk of the economic aspect of nation building it is all about the development of a nation state’s infrastructure, per capita income. However, it has also been argued by well known economists like Amartya Sen who holds the thesis that development does not mean the growth of the economy per se but development entails (rather should entail) a simultaneous 'growth' of sectors including the protection of the environment, security of the civil society, growth of freedoms etc.
Political aspect- Political development is an essential ingredient of nation building. We can develop our political environment by ensuring protection of our minorities, backward classes, by filling the gap between elites and the masses, ensure transparency in political processes like the Right to Information Act etc.
Constitutional interpretation of NREGA
Right to dignity is a universal right, for the recognition of which the United Nation’s General Assembly on December 10, 1948 adopted and proclaimed the Universal Declaration of Human Rights (UDHR). In the Preamble of the UDHR declares “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family .” In the Indian Constitution everybody has been provided with the right to life and personal liberty . In NREGA scheme; the main objective of the scheme is ‘to provide for the enhancement of livelihood security of the households in rural areas of the country by providing at least 100 days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work . Constitution of India, Article 21 talks about fundamental rights. It says that no person should be deprived of his life except according to the procedure established by law . Fundamental rights gives us right to life with dignity and to maintain these rights the state has its directive principles of state policy. Life with dignity without a guaranteed income source is a travesty. Article 41 of Indian constitution gives an opportunity to work. It says, "The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in case of unemployment ." If we see the condition of Indian unemployment when NREGA was implemented, the number of unemployed persons in the country was estimated to be around 90 lakhs (9 million) . This is a report from November 2005 and NREGA was implemented by the Lok Sabha on 23 August 2005. So the time was opportune to pass an Act like NREGA, according to Article 41 of Indian constitution.
Why is there an act?- There have been numerous employment schemes in the past: the Employment Assurance Scheme (EAS), National Rural Employment Programme (NREP), Jawahar Rozgar Yojana (JRY), Sampoorna Grameen Rozgar Yojana (SGRY), National Food For Work Programme (NFFWP), among others. Most of them have failed to bring any security in people's lives. An Act provides a legal guarantee of employment. This places a judicially enforceable obligation on the state, and gives bargaining power to the laborers. It creates accountability. By contrast, a scheme does not involve any legal entitlements, and leaves laborers at the mercy of government officials. A scheme can be trimmed or even cancelled by a bureaucrat, whereas changing a law requires an amendment in Parliament. After this Act, the government is bound to provide employment to each and every household of the rural population. That is why it was so necessary to have an act.
NREGA an Introduction
On 23rd August 2005 after a long struggle, this Act National Rural Employment Guarantee Act 2005 passed by the Indian parliament and it came into force from 2nd February 2006 in 200 districts of India. After that it was implemented all over India. This Act gives guarantee to provide 100 days of employment in each household of rural India. People those who are agree to do work on minimum vages100 rupees per day, they are qualified to get the job within 15 days as near as possible from their house. In NREGA the works are to be decided by gram Panchayat thst what work should be done when it should be done or where it should be done? Article 1 of this Act recognizes 8 types of works under this scheme, like water harvesting, drought control with plantation, irrigation canals development, land reforms of OBC's and SC's and ST's, repairing and development of traditional pounds, lands development, development of roads to reach each and every village in any season . There are certain provisions in NREGA for transparency, such as the work of registration should be in front of public, the list of registered people should be published in Gram Panchayat office and it should be updated every three months, some of the rights of labors should be printed behind the labor’s job cards, the details of work should be written as it should be come to knowledge of each literate person, there must be obeying of right to information act etc.
Provision of NREGA
This act gives guarantee to provide 100 days of employment guarantee each household of rural India, where household means a family who cooks his food along with. In this act the adult person of any house hold who has registered and are willing to work voluntarily on minimum wages of 100 rupees per day. To get the employment people have to apply for the work in his Gram Panchayat, where he gets a receipt and he is allowed to get job within 15 days within the 5 kilometeres radious of his house. If it does not happens then he is also entitled to get travel allowance. People who do not get job within 15 days he is entitled to get unemployment allowance. This act provides task basis works not the time basis, where tasks basis means people have not to do work entire day, he has to do only that much work which has allowed to him by the mate. They can go their home after completing their work at the work site ,execept the mate and water provider man. For the taking rest of the labors they have been provided various facilities such as arrangement of shadow at work site, arrangement of water provider, for the ladies those who is having their child below the age of 6 year she gets the facility of a lady among those workers who gets same wage as others get and who used to take care of that child. More than that; there must be medical kit at work site for first aid. The most important thing is that “in case of accident of employed person under this scheme; died or becomes disable on work site, he gets compensation of rupees 25000 for that .
Relation Between NREGA and Nation Building.
After examining all the aspects of nation building we understand that nation cannot be built only by the building infrastructure. To build a nation it is necessary to build economy of that particular country, the society of that nation should be aware of their rights, there must be women empowerment, everybody should be get food easily. So we can say that NREGA has all these solutions, which we are going to describe following.
NREGA is alternative to migration-: In NREGA survey 2008 it was found that 57% of NREGA workers stated that NREGA has helped them to avoid migration, 35% of them stated that NREGA has helped them avoid demeaning to hazardous occupations . For example we take Bihar where there is more migration. As a result the burden of more population becomes so much on other places that it is not easy to control. For example we can see the condition of Maharastra and Assam where Bihari and other north Indian people are being beaten up by locals. In Bihar the implementation of NREGA is also a failure. In some of villages of Arwal and Jehanabad districts (of which the poorest were picked), every one in two households had a job card, implying that the other 50% of households do not have access to the benefits of the scheme . Similar is the case of entire Bihar in NREGA implementation. Minister for Rural Development, Dr C.P.Joshi said, "Bihar has failed to utilise the funds allocated under National Rural Employment Guarantee Act (NREGA)." His ministry had released a sum of Rs 1300 crore under NREGA to the state "but unfortunately, the amount is yet to come to use in the drought-hit Bihar if there would have been proper utilization of funds there would have more people heve got employment and the situation of migration would not have come in front of Bihari labors. But on the other hand if we see the condition of Rajsthan where NREGA is working more effectievely after Tamil Nadu. In Dungarpur (Rajasthan), where some people had even returned from Mumbai and places in Gujarat on hearing that NREGA work was available in their villages. More than half (57 per cent) of the sample workers stated that the NREGA “helped them avoid migration”, and a similar proportion (also 57 per cent) felt that migration had decreased in their villages after the NREGA was launched . In NREGA successful state like Andhra Pradesh. Karnataka, Keral, Gujraat,Tamilnadu,Maharastra Rajsthan where share of wages in total expenditure is accordingly, rupees 86,60, 89,65, 96,95, 73 where as in Bihar it is very less only 59 rupees per labor as a result there is more migration from Bihar as compare to these states. Even earlier among these states had little bit problem of migration but now it is getting solved.
NREGA as a women empowerment-: As I have discussed above to build any nation or state it is necessary to empower the women of that state. Here NREGA is that scheme where there is provision to give benefit appointment of one third of registered women within given application in block for work . According to NREGA factsheet 2006-07 there is 40 % contribution of women in NREGA work and at present the contribution of women in NREGA is 52.54% Moreover; if on any work site women are working and they are having any child of below 6 years and this case is with more than 5 women then there is a provision of one more lady to take care of those children . The most important rule is that during the appointment under this scheme, merely on the basis of sex, there should not be any discrimination, and it is necessary to obey the provision of equal labor act 1976, 25 of 1976. At last I would like to share a fact from my field survey. In more than 50 work sites in Rajsthan different districts like Rajasmand, Ajmer, Bhilwada, Pali where I found that most of the women worker told that after getting job in NREGA she is not more dependent on her husband’s obligation, because now she has her own earned money, she can take any decision regarding her money.
NREGA allround development-: Since we have discussed that in NREGA works like water harvesting,drought control with plantation, irrigation cannal development, land reforms of OBC's and SCs and STs, repairing and development of traditional ponds, lands development, development of roads to reach each and every village in any season. Now the main thing to consider is that if water harvesting would be done properly it will be helpful to maintain water level, and in this water scarcity if the country gets control over water scarcity it will be very much helpful for development. Now take drought control, since Indian agriculture is based on monsoon so if the drought control, irrigation program are to be developed then it will be helpful for our agriculture; and we know that what is the role of agriculture is to develop our country. Coming forward we discuss a very necessary thing is that the development of lower class in society is as much important as the development of others, so NREGA is with the idea of development of SCs, ST’s, OBC’s land and house development, those who has got home under any government scheme. And last but not the least the repairing and development of roads are very much important because roads are very much important for transportation. If there would be good roads in rural area the only they would be supply of agriculture products from the villages. In NREGA the roads development program is also there so it will help for any kind of transportation.
Lifeline for poors-: Pre implementation of NREGA there was very less opportunity of works in rural India. Always farmers used to suffer from seasonal unemployment. Since this is the scheme which provides job of 100 days each family whenever they want. So in case of seasonal unemployment people are able to earn something for their livelihood. Moreover the people those who did not used to earn at all they have started earning. According to nrega survey 2008 69% of NREGA workers said that it has helped them to avoid hunger,47% of them stated that nrega has helped their family to cope with illness Other things is that the women are employed in NREGA at the one hand they are earning in village and other hand their other family members goes outside in the search of work and earn there, as a result where the villagers had only one source of income by migration at the same time they are getting two source of income ; which increase per capita income of our country.
NREGA social reforms-: NREGA has played pivotal role in social reformes, after implementation of NREGA, in rural area now the poor farmers have more money as compare to past. Earlier they used to lend the money from money lenders of village, but now they are not so reliable on them, so the dominant of moneylender have decreased and the social status of poor farmers have somewhat resolved. Another thing is that the women empowerment as I have already discussed that it empowers women to be selfdepedent and to get decision making rights. At last the work of land development owned by schedule caste, schedule tribes and below poverty line people it is very helpful to maintain their social status in current society
NREGA Reality or Myth
National Rural employment Act launched in 2006 firstly in 200 districts and now it is spread all over the India. During these 2 years NREGA has achieved many goals where as it also has failed to achieve many of its main goals. Another thing is that most of the data are available is not as much as practicle as it is in reality. I am sharing some of my experiences with NREGA workers which I have experienced with and 60 work sites of different areas of Rajsthan. I did not find a single worksite where the labors are being paid total 100 rupees per day. Only one site near Barar, distric Rajsamand Rajasthan where they were being paid 95 rupees per days on that site the number of labors were 160. In a gram Panchayat Thikarwas the receipt of demand of work had been given to labors where there was no any signature of the Sarpanch. In some of the village near Bhim tehsil people were given job 5 kilometeres from their house. If we talk of work site facility during my field work among 60 worksites only 5-6 worksites had full worksite facility, the worksite of barar was also one of them. The most vibrant matter was that the workers were not being paid on time. In a public hearing by an NGO named MKSS in Jhalawad, Manohar Thana in the last period of June 2009 it was found that there are some of the labors who got 7 rupees -14 rupees per day as minimum wages. There is a provision to pay the wages within 15 days of ending work but except two among those 60 worksites not a single worksite had been paid since last 2 months- 3 months and for that there was dharana organized by us in front of SDM office. But after even so much delay in payment there were no any case of unemployment allowance was found. In my field work I have seen that in absence of illiteracy the many of the labors were allotted more works in respect of fixed given works and the mate who allots work makes fake attendance of absent labors. One day in Barar Panchayat there were 17 fake attandence were cought by one NGO activist Shankar singh.
Conclusion
At last I would like to conclude that the act NREGA is very much relevant for rural development and a nation can be built when its village will be developed. This is an act which is doing work like canal development for irrigation facility, and the works of NREGA is labor oriented, there is no use of any kind of technology so it will take more time to complete it without the use of technology. At last I would like to say the NREGA in rule and presented data are different from NREGA in practice. It is looks like a myth. But the government has no other option but to give employment to rural people in these times of unemployment and hence is very much relevant to develop our country all round. It helps build our nation.
Done by-: Kundan Kumar Ojha (B.A.LL.B, 3rd sem)
KIIT LAW SCHOOL, Bhubaneswar.
Nation building
Definition-: Nation building refers to the process of constructing or structuring a national identity using the power of the state. Nation-building can involve the use of propaganda or major infrastructure development to foster social harmony and economic growth . Journalists sometimes use this term to refer to government policies that are designed to create a strong sense of national identity in the mind . Nation-building is the most common form of a process of collective identity formation with a view to legitimizing public power within a given territory. The term “nation-building” came into vogue among historically oriented political scientists in the 1950s and 1960s , Nation-building theory was primarily used to describe the processes of national integration and consolidation that lead up to the establishment of the modern nation-state--as distinct from various form of traditional states, such as feudal and dynastic states, church states, empires, etc . The other accepted understanding was that Nation-building is a key concept of foreign, security and development policy in the 1950s and 60s, in particular. At that time, it was closely related to the modernization theories . Nation-building is, a process of socio-political development, which ideally – usually over a longer historical time span – allows initially loosely linked communities to become a common society with a nation-state corresponding to it . Building a nation is not only by 'encouraging' arts and culture to 'flourish' using government funds.
Various aspects of nation building-: After examining these different definitions of nation building, we have concluded that there may be many aspects of nation building. But it is also the process which aims at the unification of the people or people within the state so that it remains politically stable and viable in the long run. In short we can say that there are many factors which contribute to build a nation, such as societal development, social justice, there should not be any gap between elite class and backward class. We will examine these aspects one by one.
Social aspect- To build any nation-state the development of its society is of utmost importance. We can argue that nation-state can be built by balancing the gap between lower class and upper class people, abrogating all kinds of discrimination like untouchability between lower and upper castes, equality between the genders etc. and all such measures that ensure social justice.
Economic aspect- if we talk of the economic aspect of nation building it is all about the development of a nation state’s infrastructure, per capita income. However, it has also been argued by well known economists like Amartya Sen who holds the thesis that development does not mean the growth of the economy per se but development entails (rather should entail) a simultaneous 'growth' of sectors including the protection of the environment, security of the civil society, growth of freedoms etc.
Political aspect- Political development is an essential ingredient of nation building. We can develop our political environment by ensuring protection of our minorities, backward classes, by filling the gap between elites and the masses, ensure transparency in political processes like the Right to Information Act etc.
Constitutional interpretation of NREGA
Right to dignity is a universal right, for the recognition of which the United Nation’s General Assembly on December 10, 1948 adopted and proclaimed the Universal Declaration of Human Rights (UDHR). In the Preamble of the UDHR declares “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family .” In the Indian Constitution everybody has been provided with the right to life and personal liberty . In NREGA scheme; the main objective of the scheme is ‘to provide for the enhancement of livelihood security of the households in rural areas of the country by providing at least 100 days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work . Constitution of India, Article 21 talks about fundamental rights. It says that no person should be deprived of his life except according to the procedure established by law . Fundamental rights gives us right to life with dignity and to maintain these rights the state has its directive principles of state policy. Life with dignity without a guaranteed income source is a travesty. Article 41 of Indian constitution gives an opportunity to work. It says, "The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in case of unemployment ." If we see the condition of Indian unemployment when NREGA was implemented, the number of unemployed persons in the country was estimated to be around 90 lakhs (9 million) . This is a report from November 2005 and NREGA was implemented by the Lok Sabha on 23 August 2005. So the time was opportune to pass an Act like NREGA, according to Article 41 of Indian constitution.
Why is there an act?- There have been numerous employment schemes in the past: the Employment Assurance Scheme (EAS), National Rural Employment Programme (NREP), Jawahar Rozgar Yojana (JRY), Sampoorna Grameen Rozgar Yojana (SGRY), National Food For Work Programme (NFFWP), among others. Most of them have failed to bring any security in people's lives. An Act provides a legal guarantee of employment. This places a judicially enforceable obligation on the state, and gives bargaining power to the laborers. It creates accountability. By contrast, a scheme does not involve any legal entitlements, and leaves laborers at the mercy of government officials. A scheme can be trimmed or even cancelled by a bureaucrat, whereas changing a law requires an amendment in Parliament. After this Act, the government is bound to provide employment to each and every household of the rural population. That is why it was so necessary to have an act.
NREGA an Introduction
On 23rd August 2005 after a long struggle, this Act National Rural Employment Guarantee Act 2005 passed by the Indian parliament and it came into force from 2nd February 2006 in 200 districts of India. After that it was implemented all over India. This Act gives guarantee to provide 100 days of employment in each household of rural India. People those who are agree to do work on minimum vages100 rupees per day, they are qualified to get the job within 15 days as near as possible from their house. In NREGA the works are to be decided by gram Panchayat thst what work should be done when it should be done or where it should be done? Article 1 of this Act recognizes 8 types of works under this scheme, like water harvesting, drought control with plantation, irrigation canals development, land reforms of OBC's and SC's and ST's, repairing and development of traditional pounds, lands development, development of roads to reach each and every village in any season . There are certain provisions in NREGA for transparency, such as the work of registration should be in front of public, the list of registered people should be published in Gram Panchayat office and it should be updated every three months, some of the rights of labors should be printed behind the labor’s job cards, the details of work should be written as it should be come to knowledge of each literate person, there must be obeying of right to information act etc.
Provision of NREGA
This act gives guarantee to provide 100 days of employment guarantee each household of rural India, where household means a family who cooks his food along with. In this act the adult person of any house hold who has registered and are willing to work voluntarily on minimum wages of 100 rupees per day. To get the employment people have to apply for the work in his Gram Panchayat, where he gets a receipt and he is allowed to get job within 15 days within the 5 kilometeres radious of his house. If it does not happens then he is also entitled to get travel allowance. People who do not get job within 15 days he is entitled to get unemployment allowance. This act provides task basis works not the time basis, where tasks basis means people have not to do work entire day, he has to do only that much work which has allowed to him by the mate. They can go their home after completing their work at the work site ,execept the mate and water provider man. For the taking rest of the labors they have been provided various facilities such as arrangement of shadow at work site, arrangement of water provider, for the ladies those who is having their child below the age of 6 year she gets the facility of a lady among those workers who gets same wage as others get and who used to take care of that child. More than that; there must be medical kit at work site for first aid. The most important thing is that “in case of accident of employed person under this scheme; died or becomes disable on work site, he gets compensation of rupees 25000 for that .
Relation Between NREGA and Nation Building.
After examining all the aspects of nation building we understand that nation cannot be built only by the building infrastructure. To build a nation it is necessary to build economy of that particular country, the society of that nation should be aware of their rights, there must be women empowerment, everybody should be get food easily. So we can say that NREGA has all these solutions, which we are going to describe following.
NREGA is alternative to migration-: In NREGA survey 2008 it was found that 57% of NREGA workers stated that NREGA has helped them to avoid migration, 35% of them stated that NREGA has helped them avoid demeaning to hazardous occupations . For example we take Bihar where there is more migration. As a result the burden of more population becomes so much on other places that it is not easy to control. For example we can see the condition of Maharastra and Assam where Bihari and other north Indian people are being beaten up by locals. In Bihar the implementation of NREGA is also a failure. In some of villages of Arwal and Jehanabad districts (of which the poorest were picked), every one in two households had a job card, implying that the other 50% of households do not have access to the benefits of the scheme . Similar is the case of entire Bihar in NREGA implementation. Minister for Rural Development, Dr C.P.Joshi said, "Bihar has failed to utilise the funds allocated under National Rural Employment Guarantee Act (NREGA)." His ministry had released a sum of Rs 1300 crore under NREGA to the state "but unfortunately, the amount is yet to come to use in the drought-hit Bihar if there would have been proper utilization of funds there would have more people heve got employment and the situation of migration would not have come in front of Bihari labors. But on the other hand if we see the condition of Rajsthan where NREGA is working more effectievely after Tamil Nadu. In Dungarpur (Rajasthan), where some people had even returned from Mumbai and places in Gujarat on hearing that NREGA work was available in their villages. More than half (57 per cent) of the sample workers stated that the NREGA “helped them avoid migration”, and a similar proportion (also 57 per cent) felt that migration had decreased in their villages after the NREGA was launched . In NREGA successful state like Andhra Pradesh. Karnataka, Keral, Gujraat,Tamilnadu,Maharastra Rajsthan where share of wages in total expenditure is accordingly, rupees 86,60, 89,65, 96,95, 73 where as in Bihar it is very less only 59 rupees per labor as a result there is more migration from Bihar as compare to these states. Even earlier among these states had little bit problem of migration but now it is getting solved.
NREGA as a women empowerment-: As I have discussed above to build any nation or state it is necessary to empower the women of that state. Here NREGA is that scheme where there is provision to give benefit appointment of one third of registered women within given application in block for work . According to NREGA factsheet 2006-07 there is 40 % contribution of women in NREGA work and at present the contribution of women in NREGA is 52.54% Moreover; if on any work site women are working and they are having any child of below 6 years and this case is with more than 5 women then there is a provision of one more lady to take care of those children . The most important rule is that during the appointment under this scheme, merely on the basis of sex, there should not be any discrimination, and it is necessary to obey the provision of equal labor act 1976, 25 of 1976. At last I would like to share a fact from my field survey. In more than 50 work sites in Rajsthan different districts like Rajasmand, Ajmer, Bhilwada, Pali where I found that most of the women worker told that after getting job in NREGA she is not more dependent on her husband’s obligation, because now she has her own earned money, she can take any decision regarding her money.
NREGA allround development-: Since we have discussed that in NREGA works like water harvesting,drought control with plantation, irrigation cannal development, land reforms of OBC's and SCs and STs, repairing and development of traditional ponds, lands development, development of roads to reach each and every village in any season. Now the main thing to consider is that if water harvesting would be done properly it will be helpful to maintain water level, and in this water scarcity if the country gets control over water scarcity it will be very much helpful for development. Now take drought control, since Indian agriculture is based on monsoon so if the drought control, irrigation program are to be developed then it will be helpful for our agriculture; and we know that what is the role of agriculture is to develop our country. Coming forward we discuss a very necessary thing is that the development of lower class in society is as much important as the development of others, so NREGA is with the idea of development of SCs, ST’s, OBC’s land and house development, those who has got home under any government scheme. And last but not the least the repairing and development of roads are very much important because roads are very much important for transportation. If there would be good roads in rural area the only they would be supply of agriculture products from the villages. In NREGA the roads development program is also there so it will help for any kind of transportation.
Lifeline for poors-: Pre implementation of NREGA there was very less opportunity of works in rural India. Always farmers used to suffer from seasonal unemployment. Since this is the scheme which provides job of 100 days each family whenever they want. So in case of seasonal unemployment people are able to earn something for their livelihood. Moreover the people those who did not used to earn at all they have started earning. According to nrega survey 2008 69% of NREGA workers said that it has helped them to avoid hunger,47% of them stated that nrega has helped their family to cope with illness Other things is that the women are employed in NREGA at the one hand they are earning in village and other hand their other family members goes outside in the search of work and earn there, as a result where the villagers had only one source of income by migration at the same time they are getting two source of income ; which increase per capita income of our country.
NREGA social reforms-: NREGA has played pivotal role in social reformes, after implementation of NREGA, in rural area now the poor farmers have more money as compare to past. Earlier they used to lend the money from money lenders of village, but now they are not so reliable on them, so the dominant of moneylender have decreased and the social status of poor farmers have somewhat resolved. Another thing is that the women empowerment as I have already discussed that it empowers women to be selfdepedent and to get decision making rights. At last the work of land development owned by schedule caste, schedule tribes and below poverty line people it is very helpful to maintain their social status in current society
NREGA Reality or Myth
National Rural employment Act launched in 2006 firstly in 200 districts and now it is spread all over the India. During these 2 years NREGA has achieved many goals where as it also has failed to achieve many of its main goals. Another thing is that most of the data are available is not as much as practicle as it is in reality. I am sharing some of my experiences with NREGA workers which I have experienced with and 60 work sites of different areas of Rajsthan. I did not find a single worksite where the labors are being paid total 100 rupees per day. Only one site near Barar, distric Rajsamand Rajasthan where they were being paid 95 rupees per days on that site the number of labors were 160. In a gram Panchayat Thikarwas the receipt of demand of work had been given to labors where there was no any signature of the Sarpanch. In some of the village near Bhim tehsil people were given job 5 kilometeres from their house. If we talk of work site facility during my field work among 60 worksites only 5-6 worksites had full worksite facility, the worksite of barar was also one of them. The most vibrant matter was that the workers were not being paid on time. In a public hearing by an NGO named MKSS in Jhalawad, Manohar Thana in the last period of June 2009 it was found that there are some of the labors who got 7 rupees -14 rupees per day as minimum wages. There is a provision to pay the wages within 15 days of ending work but except two among those 60 worksites not a single worksite had been paid since last 2 months- 3 months and for that there was dharana organized by us in front of SDM office. But after even so much delay in payment there were no any case of unemployment allowance was found. In my field work I have seen that in absence of illiteracy the many of the labors were allotted more works in respect of fixed given works and the mate who allots work makes fake attendance of absent labors. One day in Barar Panchayat there were 17 fake attandence were cought by one NGO activist Shankar singh.
Conclusion
At last I would like to conclude that the act NREGA is very much relevant for rural development and a nation can be built when its village will be developed. This is an act which is doing work like canal development for irrigation facility, and the works of NREGA is labor oriented, there is no use of any kind of technology so it will take more time to complete it without the use of technology. At last I would like to say the NREGA in rule and presented data are different from NREGA in practice. It is looks like a myth. But the government has no other option but to give employment to rural people in these times of unemployment and hence is very much relevant to develop our country all round. It helps build our nation.
Done by-: Kundan Kumar Ojha (B.A.LL.B, 3rd sem)
KIIT LAW SCHOOL, Bhubaneswar.
offences against property(theft/extortion/robbery/decoity)
Final project report- Criminal Law.
Topic- Offence Against Property
Submitted to-
Dr. H.N. Giri
Professor Cr.Law
Ms.Pooja Sarangi.
Astt Professor. Submitted by-
Kundan kumar ojha
B.A.LL.B(3rd sem)
Roll no- 883027.
Table of Contents
INTRODUCTION- 3
OF THEFT (Section 378-382) 4
CASE RELATING TO THEFT. 6
PUNISHMENT RELATING TO DIFFERENT TYPES OF THEFT. 6
OF EXTORTION 8
CASE REFERED 8
THEFT AND EXTORTION DISTINGUISHED 9
PUNISHMENT FOR DIFFERENT TYPES OF EXTORTION 9
OF ROBBERY 11
The ingredients of this section is- 12
PUNISHMENT FOR DIFFERENT KINDS OF ROBBERY- 12
Case referred- 13
OF DECOITY-: 13
DIFFERENCE BETWEEN ROBBERY AND DECOITY. 14
PUNISHMENT FOR DIFFERENT TYPES OF DECOITY 14
CASEREFRED- 15
(Done by Kundan Kumar Ojha)
Can be reached at (kundan.kls@gmail.com)
(kaundilyamuniukls@gmail.com)
(kundanojha@ymail.com)
INTRODUCTION-
Offence against property finds a prominent place in the penal code, the basic elements common to the offences under this chapter is “Dishonestly”, which the code describes as the intention of causing “wrongful gain” to one person or “wrongful loss” to another but the manner in which dishonestly is exercised differs in different cases. “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss or another person is said to do that thing “dishonestly”.” Now the question comes what is wrongful gain and wrongful loss? For that our Indian penal code section 23 says about wrongful gain and wrongful loss. This section “Wrongful gain is gain by unlawful means if property to which the person losing it is legally entitled.” And “wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled. For human society to regulate its administration it requires the protection of not only the person of individuals, but also of their property. In short we can say that the offences which effects or harm to the public property is considered as offence against property.
What are the areas comes under this? The basic element common to the offences under this chapter is dishonesty which the code describes as the intention of causing wrongful gain to on e person to wrongful loss to another. A stage is however reached when violations of property rights become so violent, mischievous of fraudulent that the state finds it necessary to step in an utilize the machinery for its criminal law to afford protection to property in a speedy and effective way. For this it has divide into 10 heads (a) theft (b)extortion (c)Robbery and dacoity (d)criminal misappropriation of property (e) Criminal breach of trust (f) Receiving stolen property (g) Cheating (h) Fraudulent disposal of property (i)Mischief (j)Criminal trespass.
OF THEFT (Section 378-382)
Section 378 says that whoever intended to take dishonestly any movable property out of the possession of any person without that person’s consent moves that property in order to such taking is said to commit theft. For instance- A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if a dishonestly removes it, A commits theft. This section defines theft and nest section prescribes punishment thereof. In order to constitute the offence of theft, there must exist following ingredients.
a) The accused must have an intention to taking dishonestly;
Note- The word dishonestly means as is used in this section, does not carry its ordinary meaning it is a technical term which has been expressly defined in section 24 of IPC itself. A person can be said to have said to have dishonest intention If, in taking the property, it is his intention to cause gain, by unlawful means of the property to which the persons so gaining is not legally entitles or to cause loss by unlawfully means of property to which the person so losing is legally entitled.
A person may be the guilty of theft of his own property if he takes it dishonestly from other see ills. (j) and (k). where the accused took a bundle belonging to himself which was in the possession f a police constable and for which the constable was accountable it was held that he constable had special property in it and that therefore the accused was guilty of theft. There is no presumption of law that husband a wife constitute one person in India for the purpose of criminal law. If the wife removes her husband’s property from his house with dishonest intention husband and without his consent her SRTIDHAN (woman property). Cannot be convicted of theft because this species of properly belong s to her absolutely. Os also a husband can Be convicted if he steals his wife’s STRIDHAN. But in MAHOMEDAN law it is laid down that a MAHOMEDAN wife may be convicted of stealing from her husband because under this system of law there does not exist the same union of interest between husband and wife as exists between an English husband and wife. The same reasoning would apply in the case of a MAHOMEDAN husband.
(b)The subject of the theft must be some moveable property.
Explanation- if a person takes anything of another dishonestly in his possession by moving it then only it is theft if it is not attached to the land, if a sale of trees belonging to tree others and not cut down at the time of sale does not constitute theft. But removable of a man’s trees blown down by a storm amounts to theft.
Taking salt against the will of the government from a swamp which is government property and is guarded by the police is theft Electricity not being moveable property, cannot be the subject of theft under the Indian penal code. But section 39 of the Indian electricity act 1910 brings the act of dishonest abstraction consumption or use of electricity within the meaning of theft as understood in the Indian penal code.
(c) The said moveable property must be taken out of the possession of any person;
Notes-The term must be distinguished from custody. A man is said to .be in possession of a thing when he can deal with it as the owner to the exclusion of others. The property is in his custody when he cannot deal with it as the owner, but merely keeps it for the sake of another as in the case of a servant holding property for his master. To constitute theft the property must have in the possession of someone and the possession of someone and then removed from his possession.
CASE RELATING TO THEFT.
In a case K.N.MEHARA v. STATE OF RAJSTHAN AIR 195 7 SC 369 and in RAMRATAN V STATE OF BIHAR AIR 1965 SC 926,930, the ingredients of theft have defined. In this case in this case there were two persons K.N.Mehara and M.Z.Philips were employed in Indian air force. Both of them were convicted under s 379 IPC for the theft of an aircraft. Both the accused person were cadets on training in the Indian air force academy at jodhpur. Had been discharged from the academy on the ground of the misconduct. Mehara was a cadet receiving training as a navigator and was due to a flight in a Dakota as part of his training. However on the scheduled day Mehara along with Philips took off not in Dakota but a Harvard HT822 before the prescribed time without authorization and without absenting any of the formalities which were perquisites for an air craft flight . they landed at a place in Pakistan about 100 miles away from the India Pakistan blotted. Both of them were sent back to Delhi and arrested reroute in jodhpur and protected and convicted theft. Thus we can indentify the ingredients of theft as follow (i) dishonestly (ii)movable property (III)out of the possession of any person (iv)without the consent of that person(v) moves that property.
To the prevention and control these kinds of offence section 379 provides punishment for that. It lays down whomever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. There are different kinds of theft have been indentified in our Indian penal code. Also it classifies different kinds of theft done by different persons in different situation and provides separate punishment for all these types of theft. I will be discussing different kinds of punishment as follow.
PUNISHMENT RELATING TO DIFFERENT TYPES OF THEFT.
Section380- Theft in dwelling house, etc- This section says whoever commits in any building tent or vessel, which is used as a human custody of property, shall be punished imprisonment of either description for a term which may extends to seven years, and shall also be liable to fine. The word dwelling house means a building, tent or vassal in which a person lives or remains whether permanently or temporarily. A railway waiting room is a building used for human dwelling. This section really gives greater security only to property deposited in a house and not to the immovable property of the person to the party from whom it is stolen.
Section 381- Theft by clerk or servant of property in possession of master- This section says whoever being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extends to seven years and also be liable to fine. The very position of the clerk or of a servant which involves the lacing of confidence in him by his master or employer give him ample opportunity to handle his property on account of which particular importance is attached to it. If clerk and servant do the offence of theft then it is also consider as criminal breach of trust under section 408 also. So he provides for the punishment for seven years.
Section 382Theft after preparation made for causing death, hurt or restrain in order to the committing of theft - whoever commits theft, having made preparation for causing death or hurt or restrain, or feat of death , or hurt, or of restraint, to any person, in order to the committing of such theft , or in order to the effecting of his escape after the committing of such theft to in order to the retaining of property taken by such theft shall be punished with rigorous imprisonment for a term which may extent to ten years and shall also be liable to fine.
An accused cannot be convicted under this section unless there is proof of actual theft for which he was present at the scene of occurrence. The guilty preparation is the essence of this offence. If however, hurt is attempted or actually inflicted the theft would amount to robbery. If one keeps a knife with him and commits theft he may be liable for conviction for the offence under this section even though there was no occasion for him to wield the knife or cause injury.
OF EXTORTION
Section 383-390 of Indian penal code deals with different types of extortion, where section 383 “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induce the person so put in fear to any person any property to valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”. For instance A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. He has committed extortion. Thus we can find the elements of extortion.
In fear of injury to that person or any other person
Dishonestly inducement of person to put in fear
To deliever any person ,property, of valuable security
Or anything sighned which may be converted into a valuable security
CASE REFERED
In a very famous case JADUNANDAN SINGH AND OTHERS V. EMEMPEROR AIR 1941.PAR. 129. It was decided that what will be the criteria of put in fear of a person? It was decided that to convict a person in extortion it must be proved that the victims were put in fear of injury to themselves or to others. Also decided that mere threat of divine displeasure does not amount to extortion.
FACT OF THE CASE – Narain Dusadh and Sheonand Singh, Were returning after the inspection of some fields when the two petitioners and others assaulted them. The petitionet gave a blow to Narain on the right leg and then other people assaulted Sheonandan. Jadunandan, after this forcibly took the thumb impression of Narain on one piece of blank paper and of Sheonandan on three blank papers. On these findings the two petitioners and two others were convicted for extortion under s 384 of IPC.
TANULAL UDHA SINGH V EMPEROR is also relevant example of extortion. In this case it was said the harm threatened or caused to be threatened must be form something illegally done. According to se 43 of Indian penal code illegal means anything which is an offence or which is prohibited by law, or which furnishes ground for civil action. To prevent these kinds of offence in our society Indian penal code section 384 provides punishment – whoever commits extortion shall be punish with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
THEFT AND EXTORTION DISTINGUISHED
Extortion is thus distinguish from theft-
Extortion is committed but h wrongful obtaining of consent.
But In theft the offender takes without the owner’s consent.
The property obtained by extortion is not limited, Immovable property may be the subject of extortion.
Whereas in theft only movable property are the subject to theft.
In extortion the property is obtained by intentional putting a person in fear of injury to that person or to any other, and thereby dishonestly inducing him to part with his property.
Whereas In theft the element of force does not arise.
PUNISHMENT FOR DIFFERENT TYPES OF EXTORTION
Section 384 to 389 of Indian penal code awards punishment for extortion it says whoever commits extortion shall be punished with imprisonment of ether description for a term which may extended to three years, or with fine, or with both.
More over section 385 says whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in feat of any injury shall be punished with imprisonment of either for a term which may extend to two years or with fine or with both.
Scope of this section- if the complete offence for instance fear caused and a consequent delivery of the property is committed then it is punishable under section 384. If only the first part of the offence is committed it is punishable under this section. The extortion defined in section 383 includes putting any person in fear of injury and covers this section which deals with a less serious offence.
Section 386 putting person in fear of injury in order to commit extortion- this section says whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any person of to any other shall be punished with imprisonment of either description for a term which may extend to ten years an shall also be liable to fine. In this section if the fear is caused is that of death or grievous hurt in naturally cause’s great alarm. The section therefore provides for severe penalty in such cases.
Section 387, extortion by putting a person in fear of death or grievous hurt. - whoever in order to the committing of extortion puts or attempts to put any person in feat of death or of grievous hurt to that person or to any other shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
However section 386 and sec 387 have the same relation as sec 384 and se 385 the only difference being that in a case of this section and se 386 the injury in fear of which a person is put is death or grievous hurt. Should necessarily be instant.
Section 388- this section says whoever commits extortion by putting any person in feat of an accusation against that person or any other having committed or attempted to commit any offence punishable with death or with imprisonment for life or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the offence be one punishable under sectin377 of this code may be punished with imprisonment for life.
Section 389- whoever in order to the committing of extortion puts or attempts to put any person in feat of an accusation against that person or any other of having committed or attempt to commit an offence punishable with death or with[ imprisonment for life] or with imprisonment for a term which may extend to ten years shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the offence be punishable under section 377 of this code may be punished with [imprisonment for life].
OF ROBBERY
Section 390 of Indian penal code says that in all robbery there is either theft or extortion. Now the question comes when a theft is robbery? And when extortion is robbery? For the answer of this question in
Section 390 itself laid down Theft is robbery if in order or then committing of the theft or in committing the theft or in carrying away or attempting to causes or attempts to cause to any person death or hurt or wrongful restrain of feat of instant death or of instant hurt or of instant wrongful restrain. is said to committed robbery. It means every theft is robbery if in order to committing it. In Harish Chandra v. State of U.P the victim boarded into train at Chakarpur railway station the accused and the co- accused along with some other person entered the same compartment. When the train reached Thankpur railway station at about 9:30 pm some of the passengers started getting down from the compartment and there was a great rush. At that time the accused forcibly took away the wrist watch of the victim and when the victim raised an alarm the co-accused jumped out of the compartment. The victim also followed them. Ant after all the accused were caught and the stuff were also recovered from them. Both of the accused were charged for the robbery. It was argued on behalf of the defense that since the slapping of the victim too place after that watch had been stolen the hurt could not have been said to have been caused in order to commit the theft so as to bring the offence under sec 390 IPC the supreme court rejected the argument.
The ingredients of this section is-
1) There is attempts to cause a person’s death or hurt or wrongful restrain or fear of instant death or.
2) Of instant hurt or instant wrongful restrain.
Robbery is an aggravated form of extortion
And every extortion is robbery also when in order to committing it offender at the time of committing it is in the presence of the person put in feat and commits the extortion by putting that person in feat of instant hurt or of instant wrongful restrain to that person or to some other persons to do so putting in fear induces the person so put in fear then and there to deliver up the thing extorted.
PUNISHMENT FOR DIFFERENT KINDS OF ROBBERY-
Section 392, punishment for robbery- lays down Whoever commits robbery shall be punished with regrous imprisionment for a term which may extend to ten years and shall also be liable to fine and if the robbery be committed on the highway between unset and sunrise the imprisonment may be extended to fourteen years.
Section 393, attempt to commit robbery- whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall be also be liable to fine and f the robbery be committed on the highway between sunset and sunrise the imprisonment may ne extended to fourteen years.
An intention to rob coupled with some overt act short of robbery in furtherance of the intent is of paramount importance for convicting a person under section. Attempts for offences under the Indian penal code are punishable under section 511 where no express provision is made for punishment of such attempts. This section expressly provides for punishment for attempts to commit robbery. Section 511 would not apply to it. Robbery stands on a different footing from dacoity in this respect as an attempt at dacoity is punishable as decoity.
Section 394 voluntarily causes hurt in committing robbery- this section says if any person in committing f pr in attempting to commit robbery voluntarily causes hurt such person and other person jointly concerned in committing or attempting to commit such robbery shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also liable to fine.
There may be dacoity without hurt being caused but in the case of an offence under this section sort is one of the essential elements if no hurt is caused no offence would be made out.
Case referred-
Om Praksh v. state of utttarpradesh AIR 1956 ALL 163. It has decided what are the criteria which take a case in an offence of robbery? In this case persons had charged for dacoity, two of them were acquitted, the court said that for the dacoity there must be 5 persons.
OF DECOITY-:
Every dacoity is robbery. There is only slight difference between robbery and decoity. Section 391 of Indian penal code says when five or more person conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commits a robbery and persons present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding is said to commit dacoity. It is punishable under section 396 of Indian penal code it says whoever commits decoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In Kusho Mohtan v. State of Bihar AIR 1980 sc 788; 1980 cr law journal 543 and. Shyam Bihari v. State of Uttarpradesh AIR 1957 sc 320. are the related case for decoity and punishment for decoity.
DIFFERENCE BETWEEN ROBBERY AND DECOITY.
For an offence of dacoity, minimum number of the miscreants required is five. The term dacoity is defined in section 391 IPC which clearly postulates that when five or more person conjointly commit or attempt to commit a robbery or where the whole number of person conjointly committing or attempting to commit a robbery and person present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding Is said to commit dacoity. The offence of robbery is defined in section 390 IPC and as is cleat from a perusal of the said section even a theft is robbery If during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant wrongful restrain. Whereas robbery is punishable under section 392 IPC dacoity is punishable under se 395 of IPC.
PUNISHMENT FOR DIFFERENT TYPES OF DECOITY
Section 395, punishment for dacoity- Indian penal code provides punishment for decoity; it says whoever commits dacoity shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
It comes into play only when the prosecution makes out an offence under section 390 and the number of assailants reaches to the statutory minimum. The maximum punishment provided under this section is life imprisonment for a term which may extend to ten years. Fine also be imposed. Decoity is considered a very grave and serious crime and hence courts hence held that in cases of dacoity deterrent sentences is called for. In awarding punishment for an offence under this section two things are to be considered
1) Having regard to the gravity of the offence committed the punishment that each individual deserves
2) On the facts and circumstances of a particular case whether a unusually heavy sentence is required to protect the interests of the public at large by acting as a deterrent to others.
Section 396, Decoity with murder- deals with an aggravated form of decoity. It says if any one of five or more persons who are conjointly committing dacoity commits murder in so committing dacoity every one of those persons shall be punished with death or[ imprisonment for life] or regroups imprisonment for a term which may extend to ten years and shall also be liable to fine.
In order to bring home the offence of dacoity with murder under section 396 it is not necessary to prove that in under was committed by any particular member of the gang or that it was a common intention of the gang to commit the murder or that other members of the gang expected the murder to take place. Nor it is necessary to prove that murder was committed jointly by ll the members of the gang. All that is required to be established by the preoccupation is that the murder had been committed while committing a dacoity. If that is established then all the members of the aging who have committed dacoity are also equally liable for the murder under this section.
CASEREFRED-
decoity with murder depends on facts and circumstances of the case
I am giving a example of a case Shyam Bihari v state of Uttar Pradesh
Facts of the case- in an attempt to commit robbery the appellant killed one of the victims who had caught hold of the appellant’s associate. The appellant was convicted under section 396 for the offence of dacoity with murder. The appellant contended that he could not be convicted under section 396 IPC because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity.
The high court negative this contention and held that section 396 would be attracted even where an attempt had been made to commit dacoity and a murder was committed when the dacoits were trying to make safe retreat and confirmed the sentence of death passed by the session judge. The appeal of the accused was similarly dismissed by the apex court.
Section 397 robbery or dacoity with attempt to cause death or grievous hurt- This section says if at the time of committing robbery or dacoity the offender used any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall be less than seven years.
Section 398, attempt to commit robbery or dacoity when armed with deadly weapon- the section says if at the time of attempting to commit robbery and decoity, the offender is armed with any deadly weapon the imprisonment with which such offender shall be punished shall not be less than seven years.
Both section 397 and section 398 do not create substantive offence, but merely prescribe a minimum sentence for the offence of robbery and dacoity mentioned in these sections. Under section 397 of IPC if at the time of committing robbery or dacoity the offender uses any deadly weapons or causes grievous hurt or attempts to cause death or grievous hurt, he shall be liable to suffer a minimum sentence of seven years imprisonment. The essential of this section is as follow-
a) An offence of robbery or dacoity must have been committed
b) The offender should be taken part in the said offence
c) The offender should have used a deadly weapons or cased grievous hurt or attempted to cause death or grievous hurt to any person at the time of committing a dacoity
in Pholl kumar v delhi administration the accused had entered a petrol pump. The first accused was armed with a knife while the second accused had small fun in his hand. The first accused asked the employees of the petrol pump to hand over the keys. To terrorize the employees the second accused fired three shots in the air. One shot struck the window and two hit the ground. Thereafter they ransacked the office and decamped with the money, the question threat arose for consideration was whether the first accused that was carrying a knife with him but did not use it for committing any over act would be covered under se 397. The Supreme Court held that in section 397 the words used were the offender uses whereas in section 398 the expression is armed with deadly weapons. Both the section provides minimum sentences of seven years. The court held that first accused was carrying a knife which was deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act such as brandishing of the knife or causing of grievous hurt with it. It was not necessary to bring the offender under this section.
Section 399- preparation of decoity- Whoever makes any preparation for committing dacoity shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine?
In our Indian penal code there
is very few section where mere preparation of any offence is punishable for example offence against country. Preparation of decoity is also one of the offences which preparation is punishable.
Section 402 provides punishment for only for assembling for the purpose of decoity- This section says whoever at any time after the passing of this act shall be one of five or more person assembled for the purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 401, punishment for belonging to gang of thieves- the section says whoever after the passing of this act shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of thugs or dacoits shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.
Topic- Offence Against Property
Submitted to-
Dr. H.N. Giri
Professor Cr.Law
Ms.Pooja Sarangi.
Astt Professor. Submitted by-
Kundan kumar ojha
B.A.LL.B(3rd sem)
Roll no- 883027.
Table of Contents
INTRODUCTION- 3
OF THEFT (Section 378-382) 4
CASE RELATING TO THEFT. 6
PUNISHMENT RELATING TO DIFFERENT TYPES OF THEFT. 6
OF EXTORTION 8
CASE REFERED 8
THEFT AND EXTORTION DISTINGUISHED 9
PUNISHMENT FOR DIFFERENT TYPES OF EXTORTION 9
OF ROBBERY 11
The ingredients of this section is- 12
PUNISHMENT FOR DIFFERENT KINDS OF ROBBERY- 12
Case referred- 13
OF DECOITY-: 13
DIFFERENCE BETWEEN ROBBERY AND DECOITY. 14
PUNISHMENT FOR DIFFERENT TYPES OF DECOITY 14
CASEREFRED- 15
(Done by Kundan Kumar Ojha)
Can be reached at (kundan.kls@gmail.com)
(kaundilyamuniukls@gmail.com)
(kundanojha@ymail.com)
INTRODUCTION-
Offence against property finds a prominent place in the penal code, the basic elements common to the offences under this chapter is “Dishonestly”, which the code describes as the intention of causing “wrongful gain” to one person or “wrongful loss” to another but the manner in which dishonestly is exercised differs in different cases. “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss or another person is said to do that thing “dishonestly”.” Now the question comes what is wrongful gain and wrongful loss? For that our Indian penal code section 23 says about wrongful gain and wrongful loss. This section “Wrongful gain is gain by unlawful means if property to which the person losing it is legally entitled.” And “wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled. For human society to regulate its administration it requires the protection of not only the person of individuals, but also of their property. In short we can say that the offences which effects or harm to the public property is considered as offence against property.
What are the areas comes under this? The basic element common to the offences under this chapter is dishonesty which the code describes as the intention of causing wrongful gain to on e person to wrongful loss to another. A stage is however reached when violations of property rights become so violent, mischievous of fraudulent that the state finds it necessary to step in an utilize the machinery for its criminal law to afford protection to property in a speedy and effective way. For this it has divide into 10 heads (a) theft (b)extortion (c)Robbery and dacoity (d)criminal misappropriation of property (e) Criminal breach of trust (f) Receiving stolen property (g) Cheating (h) Fraudulent disposal of property (i)Mischief (j)Criminal trespass.
OF THEFT (Section 378-382)
Section 378 says that whoever intended to take dishonestly any movable property out of the possession of any person without that person’s consent moves that property in order to such taking is said to commit theft. For instance- A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if a dishonestly removes it, A commits theft. This section defines theft and nest section prescribes punishment thereof. In order to constitute the offence of theft, there must exist following ingredients.
a) The accused must have an intention to taking dishonestly;
Note- The word dishonestly means as is used in this section, does not carry its ordinary meaning it is a technical term which has been expressly defined in section 24 of IPC itself. A person can be said to have said to have dishonest intention If, in taking the property, it is his intention to cause gain, by unlawful means of the property to which the persons so gaining is not legally entitles or to cause loss by unlawfully means of property to which the person so losing is legally entitled.
A person may be the guilty of theft of his own property if he takes it dishonestly from other see ills. (j) and (k). where the accused took a bundle belonging to himself which was in the possession f a police constable and for which the constable was accountable it was held that he constable had special property in it and that therefore the accused was guilty of theft. There is no presumption of law that husband a wife constitute one person in India for the purpose of criminal law. If the wife removes her husband’s property from his house with dishonest intention husband and without his consent her SRTIDHAN (woman property). Cannot be convicted of theft because this species of properly belong s to her absolutely. Os also a husband can Be convicted if he steals his wife’s STRIDHAN. But in MAHOMEDAN law it is laid down that a MAHOMEDAN wife may be convicted of stealing from her husband because under this system of law there does not exist the same union of interest between husband and wife as exists between an English husband and wife. The same reasoning would apply in the case of a MAHOMEDAN husband.
(b)The subject of the theft must be some moveable property.
Explanation- if a person takes anything of another dishonestly in his possession by moving it then only it is theft if it is not attached to the land, if a sale of trees belonging to tree others and not cut down at the time of sale does not constitute theft. But removable of a man’s trees blown down by a storm amounts to theft.
Taking salt against the will of the government from a swamp which is government property and is guarded by the police is theft Electricity not being moveable property, cannot be the subject of theft under the Indian penal code. But section 39 of the Indian electricity act 1910 brings the act of dishonest abstraction consumption or use of electricity within the meaning of theft as understood in the Indian penal code.
(c) The said moveable property must be taken out of the possession of any person;
Notes-The term must be distinguished from custody. A man is said to .be in possession of a thing when he can deal with it as the owner to the exclusion of others. The property is in his custody when he cannot deal with it as the owner, but merely keeps it for the sake of another as in the case of a servant holding property for his master. To constitute theft the property must have in the possession of someone and the possession of someone and then removed from his possession.
CASE RELATING TO THEFT.
In a case K.N.MEHARA v. STATE OF RAJSTHAN AIR 195 7 SC 369 and in RAMRATAN V STATE OF BIHAR AIR 1965 SC 926,930, the ingredients of theft have defined. In this case in this case there were two persons K.N.Mehara and M.Z.Philips were employed in Indian air force. Both of them were convicted under s 379 IPC for the theft of an aircraft. Both the accused person were cadets on training in the Indian air force academy at jodhpur. Had been discharged from the academy on the ground of the misconduct. Mehara was a cadet receiving training as a navigator and was due to a flight in a Dakota as part of his training. However on the scheduled day Mehara along with Philips took off not in Dakota but a Harvard HT822 before the prescribed time without authorization and without absenting any of the formalities which were perquisites for an air craft flight . they landed at a place in Pakistan about 100 miles away from the India Pakistan blotted. Both of them were sent back to Delhi and arrested reroute in jodhpur and protected and convicted theft. Thus we can indentify the ingredients of theft as follow (i) dishonestly (ii)movable property (III)out of the possession of any person (iv)without the consent of that person(v) moves that property.
To the prevention and control these kinds of offence section 379 provides punishment for that. It lays down whomever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. There are different kinds of theft have been indentified in our Indian penal code. Also it classifies different kinds of theft done by different persons in different situation and provides separate punishment for all these types of theft. I will be discussing different kinds of punishment as follow.
PUNISHMENT RELATING TO DIFFERENT TYPES OF THEFT.
Section380- Theft in dwelling house, etc- This section says whoever commits in any building tent or vessel, which is used as a human custody of property, shall be punished imprisonment of either description for a term which may extends to seven years, and shall also be liable to fine. The word dwelling house means a building, tent or vassal in which a person lives or remains whether permanently or temporarily. A railway waiting room is a building used for human dwelling. This section really gives greater security only to property deposited in a house and not to the immovable property of the person to the party from whom it is stolen.
Section 381- Theft by clerk or servant of property in possession of master- This section says whoever being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extends to seven years and also be liable to fine. The very position of the clerk or of a servant which involves the lacing of confidence in him by his master or employer give him ample opportunity to handle his property on account of which particular importance is attached to it. If clerk and servant do the offence of theft then it is also consider as criminal breach of trust under section 408 also. So he provides for the punishment for seven years.
Section 382Theft after preparation made for causing death, hurt or restrain in order to the committing of theft - whoever commits theft, having made preparation for causing death or hurt or restrain, or feat of death , or hurt, or of restraint, to any person, in order to the committing of such theft , or in order to the effecting of his escape after the committing of such theft to in order to the retaining of property taken by such theft shall be punished with rigorous imprisonment for a term which may extent to ten years and shall also be liable to fine.
An accused cannot be convicted under this section unless there is proof of actual theft for which he was present at the scene of occurrence. The guilty preparation is the essence of this offence. If however, hurt is attempted or actually inflicted the theft would amount to robbery. If one keeps a knife with him and commits theft he may be liable for conviction for the offence under this section even though there was no occasion for him to wield the knife or cause injury.
OF EXTORTION
Section 383-390 of Indian penal code deals with different types of extortion, where section 383 “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induce the person so put in fear to any person any property to valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”. For instance A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. He has committed extortion. Thus we can find the elements of extortion.
In fear of injury to that person or any other person
Dishonestly inducement of person to put in fear
To deliever any person ,property, of valuable security
Or anything sighned which may be converted into a valuable security
CASE REFERED
In a very famous case JADUNANDAN SINGH AND OTHERS V. EMEMPEROR AIR 1941.PAR. 129. It was decided that what will be the criteria of put in fear of a person? It was decided that to convict a person in extortion it must be proved that the victims were put in fear of injury to themselves or to others. Also decided that mere threat of divine displeasure does not amount to extortion.
FACT OF THE CASE – Narain Dusadh and Sheonand Singh, Were returning after the inspection of some fields when the two petitioners and others assaulted them. The petitionet gave a blow to Narain on the right leg and then other people assaulted Sheonandan. Jadunandan, after this forcibly took the thumb impression of Narain on one piece of blank paper and of Sheonandan on three blank papers. On these findings the two petitioners and two others were convicted for extortion under s 384 of IPC.
TANULAL UDHA SINGH V EMPEROR is also relevant example of extortion. In this case it was said the harm threatened or caused to be threatened must be form something illegally done. According to se 43 of Indian penal code illegal means anything which is an offence or which is prohibited by law, or which furnishes ground for civil action. To prevent these kinds of offence in our society Indian penal code section 384 provides punishment – whoever commits extortion shall be punish with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
THEFT AND EXTORTION DISTINGUISHED
Extortion is thus distinguish from theft-
Extortion is committed but h wrongful obtaining of consent.
But In theft the offender takes without the owner’s consent.
The property obtained by extortion is not limited, Immovable property may be the subject of extortion.
Whereas in theft only movable property are the subject to theft.
In extortion the property is obtained by intentional putting a person in fear of injury to that person or to any other, and thereby dishonestly inducing him to part with his property.
Whereas In theft the element of force does not arise.
PUNISHMENT FOR DIFFERENT TYPES OF EXTORTION
Section 384 to 389 of Indian penal code awards punishment for extortion it says whoever commits extortion shall be punished with imprisonment of ether description for a term which may extended to three years, or with fine, or with both.
More over section 385 says whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in feat of any injury shall be punished with imprisonment of either for a term which may extend to two years or with fine or with both.
Scope of this section- if the complete offence for instance fear caused and a consequent delivery of the property is committed then it is punishable under section 384. If only the first part of the offence is committed it is punishable under this section. The extortion defined in section 383 includes putting any person in fear of injury and covers this section which deals with a less serious offence.
Section 386 putting person in fear of injury in order to commit extortion- this section says whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any person of to any other shall be punished with imprisonment of either description for a term which may extend to ten years an shall also be liable to fine. In this section if the fear is caused is that of death or grievous hurt in naturally cause’s great alarm. The section therefore provides for severe penalty in such cases.
Section 387, extortion by putting a person in fear of death or grievous hurt. - whoever in order to the committing of extortion puts or attempts to put any person in feat of death or of grievous hurt to that person or to any other shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
However section 386 and sec 387 have the same relation as sec 384 and se 385 the only difference being that in a case of this section and se 386 the injury in fear of which a person is put is death or grievous hurt. Should necessarily be instant.
Section 388- this section says whoever commits extortion by putting any person in feat of an accusation against that person or any other having committed or attempted to commit any offence punishable with death or with imprisonment for life or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the offence be one punishable under sectin377 of this code may be punished with imprisonment for life.
Section 389- whoever in order to the committing of extortion puts or attempts to put any person in feat of an accusation against that person or any other of having committed or attempt to commit an offence punishable with death or with[ imprisonment for life] or with imprisonment for a term which may extend to ten years shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the offence be punishable under section 377 of this code may be punished with [imprisonment for life].
OF ROBBERY
Section 390 of Indian penal code says that in all robbery there is either theft or extortion. Now the question comes when a theft is robbery? And when extortion is robbery? For the answer of this question in
Section 390 itself laid down Theft is robbery if in order or then committing of the theft or in committing the theft or in carrying away or attempting to causes or attempts to cause to any person death or hurt or wrongful restrain of feat of instant death or of instant hurt or of instant wrongful restrain. is said to committed robbery. It means every theft is robbery if in order to committing it. In Harish Chandra v. State of U.P the victim boarded into train at Chakarpur railway station the accused and the co- accused along with some other person entered the same compartment. When the train reached Thankpur railway station at about 9:30 pm some of the passengers started getting down from the compartment and there was a great rush. At that time the accused forcibly took away the wrist watch of the victim and when the victim raised an alarm the co-accused jumped out of the compartment. The victim also followed them. Ant after all the accused were caught and the stuff were also recovered from them. Both of the accused were charged for the robbery. It was argued on behalf of the defense that since the slapping of the victim too place after that watch had been stolen the hurt could not have been said to have been caused in order to commit the theft so as to bring the offence under sec 390 IPC the supreme court rejected the argument.
The ingredients of this section is-
1) There is attempts to cause a person’s death or hurt or wrongful restrain or fear of instant death or.
2) Of instant hurt or instant wrongful restrain.
Robbery is an aggravated form of extortion
And every extortion is robbery also when in order to committing it offender at the time of committing it is in the presence of the person put in feat and commits the extortion by putting that person in feat of instant hurt or of instant wrongful restrain to that person or to some other persons to do so putting in fear induces the person so put in fear then and there to deliver up the thing extorted.
PUNISHMENT FOR DIFFERENT KINDS OF ROBBERY-
Section 392, punishment for robbery- lays down Whoever commits robbery shall be punished with regrous imprisionment for a term which may extend to ten years and shall also be liable to fine and if the robbery be committed on the highway between unset and sunrise the imprisonment may be extended to fourteen years.
Section 393, attempt to commit robbery- whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall be also be liable to fine and f the robbery be committed on the highway between sunset and sunrise the imprisonment may ne extended to fourteen years.
An intention to rob coupled with some overt act short of robbery in furtherance of the intent is of paramount importance for convicting a person under section. Attempts for offences under the Indian penal code are punishable under section 511 where no express provision is made for punishment of such attempts. This section expressly provides for punishment for attempts to commit robbery. Section 511 would not apply to it. Robbery stands on a different footing from dacoity in this respect as an attempt at dacoity is punishable as decoity.
Section 394 voluntarily causes hurt in committing robbery- this section says if any person in committing f pr in attempting to commit robbery voluntarily causes hurt such person and other person jointly concerned in committing or attempting to commit such robbery shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also liable to fine.
There may be dacoity without hurt being caused but in the case of an offence under this section sort is one of the essential elements if no hurt is caused no offence would be made out.
Case referred-
Om Praksh v. state of utttarpradesh AIR 1956 ALL 163. It has decided what are the criteria which take a case in an offence of robbery? In this case persons had charged for dacoity, two of them were acquitted, the court said that for the dacoity there must be 5 persons.
OF DECOITY-:
Every dacoity is robbery. There is only slight difference between robbery and decoity. Section 391 of Indian penal code says when five or more person conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commits a robbery and persons present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding is said to commit dacoity. It is punishable under section 396 of Indian penal code it says whoever commits decoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In Kusho Mohtan v. State of Bihar AIR 1980 sc 788; 1980 cr law journal 543 and. Shyam Bihari v. State of Uttarpradesh AIR 1957 sc 320. are the related case for decoity and punishment for decoity.
DIFFERENCE BETWEEN ROBBERY AND DECOITY.
For an offence of dacoity, minimum number of the miscreants required is five. The term dacoity is defined in section 391 IPC which clearly postulates that when five or more person conjointly commit or attempt to commit a robbery or where the whole number of person conjointly committing or attempting to commit a robbery and person present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding Is said to commit dacoity. The offence of robbery is defined in section 390 IPC and as is cleat from a perusal of the said section even a theft is robbery If during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant wrongful restrain. Whereas robbery is punishable under section 392 IPC dacoity is punishable under se 395 of IPC.
PUNISHMENT FOR DIFFERENT TYPES OF DECOITY
Section 395, punishment for dacoity- Indian penal code provides punishment for decoity; it says whoever commits dacoity shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
It comes into play only when the prosecution makes out an offence under section 390 and the number of assailants reaches to the statutory minimum. The maximum punishment provided under this section is life imprisonment for a term which may extend to ten years. Fine also be imposed. Decoity is considered a very grave and serious crime and hence courts hence held that in cases of dacoity deterrent sentences is called for. In awarding punishment for an offence under this section two things are to be considered
1) Having regard to the gravity of the offence committed the punishment that each individual deserves
2) On the facts and circumstances of a particular case whether a unusually heavy sentence is required to protect the interests of the public at large by acting as a deterrent to others.
Section 396, Decoity with murder- deals with an aggravated form of decoity. It says if any one of five or more persons who are conjointly committing dacoity commits murder in so committing dacoity every one of those persons shall be punished with death or[ imprisonment for life] or regroups imprisonment for a term which may extend to ten years and shall also be liable to fine.
In order to bring home the offence of dacoity with murder under section 396 it is not necessary to prove that in under was committed by any particular member of the gang or that it was a common intention of the gang to commit the murder or that other members of the gang expected the murder to take place. Nor it is necessary to prove that murder was committed jointly by ll the members of the gang. All that is required to be established by the preoccupation is that the murder had been committed while committing a dacoity. If that is established then all the members of the aging who have committed dacoity are also equally liable for the murder under this section.
CASEREFRED-
decoity with murder depends on facts and circumstances of the case
I am giving a example of a case Shyam Bihari v state of Uttar Pradesh
Facts of the case- in an attempt to commit robbery the appellant killed one of the victims who had caught hold of the appellant’s associate. The appellant was convicted under section 396 for the offence of dacoity with murder. The appellant contended that he could not be convicted under section 396 IPC because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity.
The high court negative this contention and held that section 396 would be attracted even where an attempt had been made to commit dacoity and a murder was committed when the dacoits were trying to make safe retreat and confirmed the sentence of death passed by the session judge. The appeal of the accused was similarly dismissed by the apex court.
Section 397 robbery or dacoity with attempt to cause death or grievous hurt- This section says if at the time of committing robbery or dacoity the offender used any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall be less than seven years.
Section 398, attempt to commit robbery or dacoity when armed with deadly weapon- the section says if at the time of attempting to commit robbery and decoity, the offender is armed with any deadly weapon the imprisonment with which such offender shall be punished shall not be less than seven years.
Both section 397 and section 398 do not create substantive offence, but merely prescribe a minimum sentence for the offence of robbery and dacoity mentioned in these sections. Under section 397 of IPC if at the time of committing robbery or dacoity the offender uses any deadly weapons or causes grievous hurt or attempts to cause death or grievous hurt, he shall be liable to suffer a minimum sentence of seven years imprisonment. The essential of this section is as follow-
a) An offence of robbery or dacoity must have been committed
b) The offender should be taken part in the said offence
c) The offender should have used a deadly weapons or cased grievous hurt or attempted to cause death or grievous hurt to any person at the time of committing a dacoity
in Pholl kumar v delhi administration the accused had entered a petrol pump. The first accused was armed with a knife while the second accused had small fun in his hand. The first accused asked the employees of the petrol pump to hand over the keys. To terrorize the employees the second accused fired three shots in the air. One shot struck the window and two hit the ground. Thereafter they ransacked the office and decamped with the money, the question threat arose for consideration was whether the first accused that was carrying a knife with him but did not use it for committing any over act would be covered under se 397. The Supreme Court held that in section 397 the words used were the offender uses whereas in section 398 the expression is armed with deadly weapons. Both the section provides minimum sentences of seven years. The court held that first accused was carrying a knife which was deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act such as brandishing of the knife or causing of grievous hurt with it. It was not necessary to bring the offender under this section.
Section 399- preparation of decoity- Whoever makes any preparation for committing dacoity shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine?
In our Indian penal code there
is very few section where mere preparation of any offence is punishable for example offence against country. Preparation of decoity is also one of the offences which preparation is punishable.
Section 402 provides punishment for only for assembling for the purpose of decoity- This section says whoever at any time after the passing of this act shall be one of five or more person assembled for the purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 401, punishment for belonging to gang of thieves- the section says whoever after the passing of this act shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of thugs or dacoits shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.
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