[Indian Year Book 2022-23]* Indian Year Book Notes | Chapter 5. Law & Justice

 

Indian Year Book

(2022-23)

Chapter – 5. Law & Justice

 

MINISTRY of Law and Justice is the oldest limb of the Government of India dating back to 1833 when the Charter Act, 1833 was enacted by the British Parliament. By virtue of this authority and the authority vested under him under Section 22 of the Indian Councils Act, 1861, the Governor General in Council enacted laws for the country from 1834 to 1920.

Then there was Government of India Act, 1919, the legislative power was exercised by the Indian Legislature constituted ther eunder. The Government of India Act, 1919 was followed by the Government of India Act, 1935.

India became a Dominion and the Dominion Legislature made laws from 1947 to 1949 under the provisions of Section 100 of the Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947.

Ministry of Law and Justice comprises the three Departments namely the Department of Legal Affairs, the Legislative Department and the Department of Justice

 

National Mission for Justice Delivery and Legal Reforms

Ø  National Mission for Justice Delivery and Legal Reforms was set up in 2011 with the twin objectives of increasing access by reducing delays and arrears in the system and enhancing accountability through structural changes and by setting performance standards and capacities. The Mission has been pursuing a co-ordinated approach for phased liquidation of arrears and pendency in judicial administration, which, interalia, involves better infrastructure for courts including computerisation; increase in strength of subordinate judiciary; policy and legislative measures in the areas prone to excessive litigation; re-engineering of court procedure for quick disposal of cases; and emphasis on human resource development.

Ø  The criteria of judge-population ratio for determining the adequacy of the Judge Strength in the country has been reviewed by the Law Commission in its 245th Report (2014) prepared on the direction of the Supreme Court in this case. In this report, the Law Commission has observed that fi ling of cases per capita varies substantially across geographic units as fi lings are associated with economic and social conditions of the population. As such, the Law Commission did not consider the judge-population ratio to be a scientifi c criterion for determining the adequacy of the judge strength in the country.

Ø  In August 2014, the Supreme Court asked the National Court Management System Committee (NCMS) to examine the recommendations made by the Law Commission and to furnish their recommendations in this regard. NCMS submitted its report to the Supreme Court in March 2016. It has, interalia, observed that in the long term, the judge strength of the subordinate courts will have to be assessed by a scientifi c method to determine the total number of judicial hours required for disposing of the case load of each court. In the interim, this Committee has proposed a “weighted” disposal approach— disposal weighted by the nature and complexity of cases in local conditions.

Judicial Infrastructure

Until 2011, the central and state governments used to contribute an equal share under the scheme but from 2011-12 onwards the central government was contributing 75 per cent of the funds. In the case of north-eastern states, the central government provides 90 per cent of the funding. Central funding is, however, subject to budgetary allocation for the scheme

 

e-Courts Integrated Mission Mode Project

Ø  The e-Courts Integrated Mission Mode Project is one of the e-Governance projects being implemented in High Courts and district/subordinate courts of the country. The project has been conceptualised on the basis of the “National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary-2005” by the e-Committee of the Supreme Court of India.

 

National Litigation Policy

Ø  Government is said to be the major litigant and there have been several Law Commission reports suggesting for a Litigation Policy to avoid unwarranted litigation by the government and thus bring down load on the court system as well as burden on the public exchequer. Therefore, the draft National Litigation Policy 2017, proposes to put in place a system which prevents, controls and reduces litigation.

 

Appellate Tribunal for Foreign Exchange

Ø  The Appellate Tribunal for Foreign Exchange was established in 2000 under Section 18 of Foreign Exchange Management Act (FEMA), 1999. Under Section 19 of FEMA, the central government or any person aggrieved by an order made by Special Director (Appeals), or made by an Adjudicating Authority other than referred to in Sub-Section (i) of Section 1 7, may prefer an appeal to the Appellate Tribunal that may be fi led within 45 days from the date of receiving the order by the aggrieved person or the central government.

 Enforcement Agencies

Ø  All senior police posts in various states are manned by the Indian Police Service (IPS) cadres, recruitment to which is made on All-India basis.

Ø  The central government maintains Central Police forces, Intelligence Bureau (IB), Central Bureau of Investigation (CBI), institutions for training of police offi cers and forensic science institutions to assist the states in gathering intelligence, in maintaining law and order, in investigating special crime cases and in providing training to the senior police.

 

 Indo-Tibetan Border Police

Ø  ITBP is basically a mountain trained force and most of the offi cers and men are professionally trained mountaineers and skiers. ITBP mountaineers have also successfully climbed peaks in Nepal, Iran, Japan and South America. ITBP skiers have been national champions and have taken part in winter Olympics. They have also participated in adventurous White Water Rafting, through turbulent and mighty waters of the Brahmaputra, the Indus and the Ganges and also have international achievements to their credit in this fi eld.

 Border Security Force

Ø  BSF’s role during peace time is as follows : (i) to promote a sense of security among the people living in the border areas; (ii) to prevent trans-border crimes, unauthorised entry into or exit from the territory of India; (iii) to prevent smuggling and any other illegal activities on the border; (iv) anti-infi ltraton duties; and (v) to collect trans-border intelligence. Its role during war time is as follows: (i) holding ground in assigned sectors; limited aggressive action against central armed police or irregular forces of the enemy; (iii) maintenance of law and order in enemy territory administered under the army’s control; (iv) guarding of prisoners of war camps; (v) acting as guides to the army in border areas; (vi) assistance in control of refugees; (vii) provision of sectors; and (viii) performing special tasks connected with intelligence including raids.

 Assam Rifl es

Ø  The Assam Rifl es’ contribution towards assimilation of the people of the north-east into the national mainstream is truly monumental. Their long association with the region refl ects in the force being fondly called “The Sentinel of the North-East” and “Friends of the Hill People” security in the north-eastern region and guarding the Indo-Myanmar border.

 

 National Security Guard

Ø  Specially equipped and trained forces like SAS of UK, Delta Force of USA and GSG-9 of West Germany were raised abroad. The need for creating a special force for executing surgical operations based on tactical intelligence was felt in India when Operation Blue Star was carried out by the army at the Golden Temple, Amritsar in 1984. National Security Guard (NSG) was conceptualised and created after studying and analysing Special Force like SAS in the United Kingdom, GIGN in France, GSG-9 in Germany, Shar-et-matkal in Israel and Delta Force in the USA.

 

 Sashastra Seema Bal

Ø  Sashastra Seema Bal” is guarding Indo-Nepal border since 2001 and was also given the additional responsibility of guarding Indo-Bhutan border in 2004. Its earlier aim was to build people’s morale and inculcate a spirit of resistance in border population in the then NEFA, North Assam, North Bengal, hills of Uttar Pradesh, Himachal Pradesh and Jammu and Kashmir (Ladakh). The area of operation was extended to other border areas in Manipur, Tripura, Jammu, Meghalaya, Sikkim, Rajasthan, Gujarat, Mizoram, South Bengal and Nagaland between 1965-91.

 

Ø  The role of SSB in earlier se-tup includes : (i) to inculcate a sense of security and spirit of resistance in border population; (ii) promoting national awareness and security consciousness; and (iii) organising and preparing border population to resist enemy.

 

Civil Defence

Ø  The Civil Defence Act, 1968, was suitably amended by the Civil Defence (Amendment) Act, 2009 in 2010, to include the disaster management as an additional role for the Civil Defence Corps, while retaining its primary role. Although the Civil Defence Act, 1968, is applicable throughout the country, the organisation is only raised in such areas and zones which are tactically and strategically considered vulnerable from enemy attack point of view.

 Home Guards

Ø  Home Guards is a voluntary force,fi rst raised in India in December 1946, to assist the police in controlling civil disturbances and communal riots. Home Guards are raised under the Home Guards Act and rules of the states/ union territories. They are recruited from various cross-sections of the people such as doctors, engineers, lawyers, private sector organisations, college and university students, agricultural and industrial workers, etc.

Ø  The Ministry of Home Affairs formulates the policy in respect of role, target, raising, training, equipping, establishment and other important matters of Home Guards Organisation. Expenditure on Home Guards is generally shared between centre and state governments as per existing fi nancial policy.

 

Personal Law

Ø  They are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, adoption, wills, etc. The subject matter of personal laws is relatable to entry 5 of List III-Concurrent list in the Seventh Schedule to the Constitution of India and hence the Union Legislature, namely, the Parliament and subject to the provisions of Article 254 of the Constitution. The state legislatures are also competent to make laws in the fi eld.

 

 Marriage

Ø  The Special Marriage Act, 1954, which provides for a special form of marriage and the registration of such marriages extends to the whole of India except the former state of Jammu and Kashmir, but also applies to the citizens of India domiciled in Jammu and Kashmir. Persons governed by this Act can specifi cally register marriage under the said Act even though they are of different religious faiths.

Ø  Sections 36 and 38 have been amended to provide that an application for alimony or the maintenance and education of minor children be disposed off within 60 days from the date of service of notice on the respondent

 

Ø  An attempt has been made to codify customary law which is prevalent among Hindus by enacting the Hindu Marriage Act, 1955. This Act, which extends to the whole of India, except the former state of Jammu and Kashmir, applies also to Hindus domiciled in territories to which the Act extends and those who are outside the said territories. It applies to Hindus (in any of its forms or development) and also to Buddhists, Sikhs, Jains and also those who are not Muslims, Christians, Parsis or Jews by religion. However, the Act does not apply to members of any scheduled tribes unless the central government by notifi cation in the offi cial Gazette otherwise directs.

 

Ø  Provisions as regard to divorce are contained in Section 13 of The Hindu Marriage Act and Section 27 of The Special Marriage Act. Common ground on which divorce can be sought by a husband or a wife under these Acts are: adultery, desertion, cruelty, unsoundness of mind, venereal disease, leprosy, mutual consent and being not heard of as alive for seven years.

Ø  In The Divorce Act, 1869, comprehensive amendments were made through The Indian Divorce (Amendment) Act, 2001, to remove discriminatory provisions against women in the matter of divorce and to provide for dissolution of marriage by mutual consent. Further, Section 41 of the 1869 Act was amended by The Marriage Laws (Amendment) Act, 2001, to provide that an application for alimony or the maintenance and education of minor children be disposed off within 60 days from the date of service of notice on the respondent.

 

 

 Adoption

 

Ø  Although there is no general law governing adoption, it is permitted by The Hindu Adoption and Maintenance Act, 1956, amongst Hindus and by custom amongst a few numerically insignifi cant categories of persons. Since adoption is legal affi liation of a child, it forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws and have to approach the court under The Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care attains the age of majority, that is eighteen years old, he is free to break away all these connections. Besides, such a child does not have the legal right of inheritance. Foreigners, who want to adopt Indian children, have to approach the court under the aforesaid Act

 

Adoption

Ø  Although there is no general law governing adoption, it is permitted by The Hindu Adoption and Maintenance Act, 1956, amongst Hindus and by custom amongst a few numerically insignifi cant categories of persons. Since adoption is legal affi liation of a child, it forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws and have to approach the court under The Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care attains the age of majority, that is eighteen years old, he is free to break away all these connections. Besides, such a child does not have the legal right of inheritance. Foreigners, who want to adopt Indian children, have to approach the court under the aforesaid Act

 

 Maintenance

Ø  Under the Code of Criminal Procedure, 1973, right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claims of the wife, etc., however, depends on the husband having suffi cient means.

Ø  Under the Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codifi ed in The Hindu Adoptions and Maintenance Act, 1956.

Ø  The Personal Laws (Amendment) Act, 2019 further amended the Divorce Act, 1869 (4 of 1869), the Dissolution of Muslim Marriages Act, 1939 (8 of 1939), the Special Marriage Act, 1954 , the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956 so as to omit the provisions that are discriminatory to the leprosy affected persons contained therein. The Amendment Act came into force on March 1, 2019.

Ø  The Muslim Women (Protection of Rights on Marriage) Bill, 2019, which replaced the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019, was enacted as Act 20 of 2019 on the July 31, 2019. The enactment is for prevention of divorce by way of talaq-e-biddat by certain Muslim husbands in spite of the same having been set aside by the Supreme Court. This Act is in force from September 19, 2018, (i.e. the date from which the fi rst Ordinance, namely, the Muslim Woman (Protection of Rights on Marriage) Ordinance, 2018.

Ø  The Parsi Marriage and Divorce Act, 1936, recognises the right of wife to maintenance—both alimony and permanent alimony. The maximum amount that can be decreed by the court as alimony during the time a matrimonial suit is pending in court, is one-fi fth of the husband’s net income. The Divorce Act, 1869, governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi Law and the same considerations are applied in granting maintenance, both alimony and permanent maintenance.

 

Election Laws and Electoral Reforms

Ø  The Acts in connection with the conduct of elections to Parliament, state legislatures and to the offi ces of the President and the Vice President are: (i) The Representation of the People Act, 1950; (ii) The Representation of the People Act, 1951; (iii) The Presidential and Vice-Presidential Elections Act, 1952; (iv) The Delimitation Act, 2002; (v) The Andhra Pradesh Legislative Council Act, 2005; and (vi) The Tamil Nadu Legislative Council Act, 2010. These are administrated by the Legislative Department, Ministry of Law and Justice.

 

 

Delimitation of Constituencies

 

Ø  The periodic readjustment of the Lok Sabha and Assembly constituencies is mandatory in a representative system where single-member constituencies are used for electing political representatives. The electoral boundaries are drawn on the basis of the last published census fi gures and are relatively equal in population.

 

Ø  Equally populous constituencies allow voters to have an equally weighted vote in the Legislature. Electoral constituencies that vary greatly in population - a condition called “malapportionment” - violate a central tenet of democracy, namely, that all voters should be able to cast a vote of equal weight. Delimitation and Elections are the two basic pillars of a parliamentary democracy.

 

Ø  The first Delimitation Commission in India was constituted in 1952, the second in 1962 and the third in the year 1973. The third delimitation exercise -based on 1971 census - was completed in the year 1975. The present delimitation, based on 2001 census, has been undertaken after 30 years. The population increased by almost 87 per cent and the nature of constituencies in the country, by and large, had become malapportioned.

Ø  Although the rules for delimitation vary across countries, tasks involved in drawing boundaries are generally similar. In India, the drawing of boundaries, generally, entails: (a) allocating seats to the states and districts within a state; (b) creating a database composed of maps, population fi gures and the details showing geographic/natural/administrative conditions of the area concerned; (c) associating the statutory representatives from the Lok Sabha and State Assemblies; (d) distributing the states and districts into geographic units called the constituencies; (e) having an extensive exercise for public input into delimitation process; (f) summarising and evaluating the constituencies; and (g) passing and publishing the fi nal order. The procedure for delimiting the constituencies in India stands clearly spelt out in The Delimitation Act, 2002.

 

Ø  With the issuance of the Presidential Order specifying the date on which the delimitation orders notifi ed by the Delimitation Commission shall take effect, it was necessary to amend the relevant provisions and the First and Second Schedules of the Representation of the People Act, 1950, to refl ect the changes made by the delimitation orders notifi ed by the Delimitation Commission. As a consequential requirement, the Representation of the People (Amendment) Act, 2008, amending the Representation of the People Act, 1950, in conformity with the delimitation was enacted and made effective from 2008.

 

Ø  By this amendment Act, the First Schedule and the Second Schedule to the Representation of the People Act, 1950, were replaced including other amendments.

 

Ø  Further, a new Section 8(A) was inserted in the Representation of the People Act, 1950, which, provided that if the President of India is satisfi ed that the situation and the conditions prevailing in Arunachal Pradesh, Assam, Manipur or Nagaland are conducive for the conduct of delimitation exercise, he may, by order, rescind the said deferment orders issued under Section 10(A) of The Delimitation Act, 2002 in relation to any of those states and provide for the conduct of delimitation exercise in the states by the Election Commission of India.

 

Electronic Voting Machines

 

Ø  The use of Electronic Voting Machines (EVMs) was started in the country on experiment basis in 1982.

 

Ø  It took more than two decades for the universal use of EVMs and during the General Elections to the Lok Sabha in 2004, EVMs were used in all polling stations across the country

 

Ø  The EVMs were developed at the behest of the Election Commission jointly with two Public Sector Undertakings, Bharat Electronics Limited (BEL), Bengaluru and Electronics Corporation of India Limited (ECIL), Hyderabad in 1989.

 

 Voting Rights to the Citizens of India Living Abroad

Ø  Section 19 of the Representation of the People Act, 1950 provides that every person who is not less than 18 years of age on the qualifying date and is ordinarily a resident in the constituency shall be entitled to be registered in the electoral rolls for that constituency.

 

Ø  The Representation of the People (Amendment) Bill, 2006, introduced on February 27, 2006 in the Rajya Sabha and introduced a fresh Bill, namely, The Representation of the People (Amendment) Bill, 2010, in August 2010, to amend the Representation of the People Act, 1950 to: (a) provide that every citizen of India, whose name is not included in the electoral roll and who has not acquired the citizenship of any other country and who is absenting from his place of ordinary residence in India owing to his employment, education, or otherwise outside India (whether temporarily or not), shall be entitled to have his name registered in the electoral roll in the constituency in which his place of residence in India as mentioned in his passport is located; (b) provide that the Electoral Registration Offi cer shall make corrections of entries in electoral rolls and inclusion of names in electoral rolls after proper verifi cation; and (c) confer power upon the central government to specify, after consulting the Election Commission of India, by rules, the time within which the name of persons referred to in sub-paragraph above shall be registered in the electoral roll and the manner and procedure for registering of such persons in the electoral roll.

 

Ø  The central government has issued necessary notifi cation bringing the Act into force from February 2011. The Indians overseas can now furnish the documents self-attested by them and get their name enrolled in the electoral roll of their respective constituency.

 

 

 

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