India and Pakistan on Wednesday failed to reach an agreement on Kartarpur Corridor project due to differences on thorny issues such as the imposition of fees on pilgrims by Islamabad and presence of Indian diplomats.

India and Pakistan on Wednesday failed to reach an agreement on Kartarpur Corridor project due to differences on thorny issues such as the imposition of fees on pilgrims by Islamabad and presence of Indian diplomats. While Pakistan insisted on levying a "service fee" for allowing Pilgrims to visit Kartarpur Gurdwara Kartarpur, India did not agree. A source said that charging of fee was not in the spirit of "smooth and easy access through the Corridor." Another issue was the presence of Indian protocol and Consular officers. New Delhi requested Islamabad to allow Indian protocol officers to accompany pilgrims at every visit to facilitate their pilgrimage but Pakistan expressed its reluctance to accede to this request.However, India has asked Pakistan to reconsider its position. SCL Das, Joint Secretary, Internal Security, Ministry of Home Affairs, who led the Indian delegation at the talks said, "We were hopeful that this would have been last and final meeting. We are disappointed that because of two points. This is a people's project, no fee should be charged and they should be flexible on that" Both sides already agreed that 5,000 pilgrims can visit Gurdwara Kartarpur Sahib using the Corridor every day and additional pilgrims, over and above the figure of 5,000, can visit on special occasions. "There is an agreement on visa-free travel of Indian pilgrims, without any restrictions based on their faith. Persons of Indian origin holding OCI card too can visit Holy Gurdwara Kartarpur Sahib using this Corridor", SCL Das said. The corridor will be open 365 days and pilgrims have a choice to visit as an individual or in group. Both sides also agreed on emergency evacuation procedures, especially medical emergencies and for this, a direct line of communication between Border Security Force and Pakistan Rangers will be established. Pakistan will also make sufficient provision for preparation and distribution of ‘Langar’ and ‘Prasad’ for the pilgrims. This was the third round of India-Pakistan talks on the corridor and is expected to be followed by fifth round of technical talks on the corridor. The fourth round of India Pak talks will take place in Wagah, Pakistan. In November 2018, India, Pakistan announced the establishment of a direct border-crossing linking Gurdwara Darbar Sahib in Kartarpur, the final resting place of Sikh faith founder Guru Nanak, to Dera Baba Nanak in Punjab's Gurdaspur district. It is expected to be open by Nov 2019, 550th birth anniversary of Guru Nanak. Kartarpur is located in Pakistan's Narowal district across the Ravi river, about four km from Dera Baba Nanak.

Kartarpur Corridor: Pakistan-India fail to reach an agreement on key issues

The recent rejection of the impeachment motion against Chief Justice of India (CJI), which was a misadventure at the behest of Congress in conjunction with other opposition parties, did bring back the unsavoury flavour of 1970s and rekindled the debate of the political class trying to tame the judiciary for its own vested interests.

In the hindsight, it was in 1973, when the then Prime Minister Indira Gandhi appointed Justice A N Ray as CJI while superseding three senior-most judges of the Supreme Court. This appointment was against all established traditions of the Supreme Court. It caused widespread opposition and compelled the superseded judges to resign but to no avail. Again, in 1977, it was Justice M H Beg who was appointed as the CJI instead of one of the most illustrious judges of India, Justice H R Khanna. Letting his actions resonate with his conscience, Justice Khanna also resigned on the same day. A deeper analysis of these two incidents brings to the fore a disturbing revelation. As per the records, while Justice Ray and Justice Beg were rewarded for their pro-government stance, Justice Khanna paid the price for upholding the majesty of law against the interests of the government. In the case of ADM, Jabalpur vs Shiv Kant Shukla, popularly known as the Habeas Corpus Case, Justice Khanna was the only judge who gave the judgment against the government while Justice Beg, who was a part of the same bench, ruled in favour.

And now, the impeachment motion against the CJI reveals the undying desire of the executive to have a committed judiciary and it is willing to resort to every move, whether justified or not. The details which are available in the public domain make it abundantly clear that it was nothing more than a malicious step taken for the vested interests and exert undue pressure on the judiciary. The impeachment proceedings against a constitutional functionary, holding an office as high as the CJI, ought to be supported by sound facts and rationale and cannot be a mere roving inquiry into the conduct.

Not only the opposition, even the government of the day cannot escape the blame. While it is criticising the impeachment motion wholeheartedly, its own disregard of the judiciary is noticeable. The latest in the series of various clashes between the judiciary and executive is the issue of elevation of Justice K M Joseph, who is currently the Chief Justice of Uttarakhand, to the Supreme Court. The Centre has raised various objections to the elevation. While these may, prima facie, not seem to be worthy of a doubt, at the root of it, however, is the fact that it was Justice K M Joseph who set aside President's Rule in Uttarakhand. Similarly, in 2014, similar circumstances prevailed when Gopal Subramaniam's name was recommended for elevation to the Supreme Court. Although Subramniam himself withdrew his candidature to save himself that unfounded humiliation, it would not go unnoticed that it was him who, acting as amicus curiae in the Sohrabuddin encounter case, convinced the Supreme Court to order CBI probe in the case.

Seniority is not a precondition for appointment or elevation in almost all the jurisdictions in the world. Even in India, the then Chief Justice of Bombay High Court, Justice M C Chagla, was recommended to be directly appointed as the Chief Justice of India. It is only resorted to as a practice by the apex court but the way it is being misused by the executive makes its political motives abundantly clear. We have to realise that, while everyone has a right to disagree with the judicial verdicts - and we do see healthy criticisms of the same on a regular basis - the courts are the final interpreter of the laws and we, as citizens, are bound to accept them gracefully.

Ironically, when the President of Maldives tried to gag the judiciary, India urged the Maldivian government to abide by the apex court verdict, whereas, back home, our government is trying the same, albeit in a 'democratic' manner.

With due regards, this state of affairs has, in part, to do with judiciary refraining from coming down hard on the political class. As has been observed by various legal stalwarts, it is high time that the judiciary starts invoking the contempt provisions against such malicious actions, irrespective of the position and stature of the individual. It is only then that we can hope to reinstate the majesty of courts.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

The impeachment motion against the CJI reveals the undying desire of the executive to have a committed judiciary and it is willing to resort to every move.

The recent rejection of the impeachment motion against Chief Justice of India (CJI), which was a misadventure at the behest of Congress in conjunction with other opposition parties, did bring back the unsavoury flavour of 1970s and rekindled the debate of the political class trying to tame the judiciary for its own vested interests. In the hindsight, it was in 1973, when the then Prime Minister Indira Gandhi appointed Justice A N Ray as CJI while superseding three senior-most judges of the Supreme Court. This appointment was against all established traditions of the Supreme Court. It caused widespread opposition and compelled the superseded judges to resign but to no avail. Again, in 1977, it was Justice M H Beg who was appointed as the CJI instead of one of the most illustrious judges of India, Justice H R Khanna. Letting his actions resonate with his conscience, Justice Khanna also resigned on the same day. A deeper analysis of these two incidents brings to the fore a disturbing revelation. As per the records, while Justice Ray and Justice Beg were rewarded for their pro-government stance, Justice Khanna paid the price for upholding the majesty of law against the interests of the government. In the case of ADM, Jabalpur vs Shiv Kant Shukla, popularly known as the Habeas Corpus Case, Justice Khanna was the only judge who gave the judgment against the government while Justice Beg, who was a part of the same bench, ruled in favour. And now, the impeachment motion against the CJI reveals the undying desire of the executive to have a committed judiciary and it is willing to resort to every move, whether justified or not. The details which are available in the public domain make it abundantly clear that it was nothing more than a malicious step taken for the vested interests and exert undue pressure on the judiciary. The impeachment proceedings against a constitutional functionary, holding an office as high as the CJI, ought to be supported by sound facts and rationale and cannot be a mere roving inquiry into the conduct. Not only the opposition, even the government of the day cannot escape the blame. While it is criticising the impeachment motion wholeheartedly, its own disregard of the judiciary is noticeable. The latest in the series of various clashes between the judiciary and executive is the issue of elevation of Justice K M Joseph, who is currently the Chief Justice of Uttarakhand, to the Supreme Court. The Centre has raised various objections to the elevation. While these may, prima facie, not seem to be worthy of a doubt, at the root of it, however, is the fact that it was Justice K M Joseph who set aside President's Rule in Uttarakhand. Similarly, in 2014, similar circumstances prevailed when Gopal Subramaniam's name was recommended for elevation to the Supreme Court. Although Subramniam himself withdrew his candidature to save himself that unfounded humiliation, it would not go unnoticed that it was him who, acting as amicus curiae in the Sohrabuddin encounter case, convinced the Supreme Court to order CBI probe in the case. Seniority is not a precondition for appointment or elevation in almost all the jurisdictions in the world. Even in India, the then Chief Justice of Bombay High Court, Justice M C Chagla, was recommended to be directly appointed as the Chief Justice of India. It is only resorted to as a practice by the apex court but the way it is being misused by the executive makes its political motives abundantly clear. We have to realise that, while everyone has a right to disagree with the judicial verdicts - and we do see healthy criticisms of the same on a regular basis - the courts are the final interpreter of the laws and we, as citizens, are bound to accept them gracefully. Ironically, when the President of Maldives tried to gag the judiciary, India urged the Maldivian government to abide by the apex court verdict, whereas, back home, our government is trying the same, albeit in a 'democratic' manner. With due regards, this state of affairs has, in part, to do with judiciary refraining from coming down hard on the political class. As has been observed by various legal stalwarts, it is high time that the judiciary starts invoking the contempt provisions against such malicious actions, irrespective of the position and stature of the individual. It is only then that we can hope to reinstate the majesty of courts. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: Politicising the judiciary - a disturbing trend

In a series of recent landmark judgments, the Hon&#39;ble Supreme Court, on March, 9, 2018, added another feather to its cap when it put to rest the long-debated issue of euthanasia i.e. mercy killing. Indian society had, for long, considered the concept of mercy killing as a taboo and had prevented itself from opening up to the idea and, as such, the political dispensations had also been reluctant in promulgating the relevant legislations on the subject.

However, the change came about with the case of Aruna Shanbaug which was decided by the Supreme Court in 2011, wherein, the apex court permitted passive euthanasia and issued strict guidelines for the same which included a clearance from the jurisdictional high court. The latest verdict of March 9 is in pursuance to the previous one and has also introduced the concept of &#39;living will&#39; which is a document executed by an individual of a sound mental disposition, thereby, placing on record as to whether he/she would like to be placed on artificial medical support should the individual suffer from an incurable terminal ailment.

As a reference, worldwide, there are multiple recognised forms of euthanasia like passive/active euthanasia, assisted suicide etc but India has only permitted passive euthanasia. The basic difference is that, in active euthanasia, death of the patient is brought about by an action like administering an overdose of medicines whereas passive euthanasia involves an omission to provide any further medical support and letting the individual die in natural course.

Historically, various religions have also practised this form of euthanasia. For example, Jainism has the concept of Sallekhana which is primarily practiced by seers. In this, when they feel like putting an end to their worldly journey, they refuse the food, water or medications and, gradually, slip into eternal sleep. But this was not a legally recognised concept and had also led to controversies in recent years. But now, with the legal sanction, the concept of euthanasia has been accepted and can be professed by anyone who chooses the path.

While passing the judgement, Supreme Court was also conscious of the probable misuse of this provision and, as such, has introduced multiple layers of precautions in the form of guidelines so as to ensure that the provision is exercised in its letter and spirit. As stated above, there is no legislation in place on the subject and, hence, till that time, the guidelines issued by the apex court would act as guiding light. As a basic measure, the &#39;living will&#39; can be executed only by an individual of sound mind out of free will and volition. The living will has to be unambiguous in its intent and should clearly state the terms and conditions and circumstances of withdrawal. Further, the living will should specify the name of guardian or a close relative who, in the event of executor becoming completely indisposed, would be authorised to accord consent on behalf of the patient to withdraw the treatment.

In order to allay the fears of misuse, the Supreme Court has also provided for the clearance by the State before the living will is carried out. The living will is to be signed by the executor before two attesting witnesses and the same is to be countersigned by the jurisdictional Judicial Magistrate, First Class. Both the Judicial Magistrate and the witnesses would record their satisfaction as to the free will of the executor while preserving one copy in his office and sending another to the record of the jurisdictional district court and to the competent officer of the local government.

The safeguards have also been provided at the medical platform like verifying the authenticity of the living will and forming of medical boards - one by hospital and another by the district collector - and, only after their clearance, can the process be proceeded with.

Undoubtedly, this is a welcome introduction by the Supreme Court and it is hoped that the provision is carried out in letter and spirit and ends the sufferings of those with no hopes. However, with the first step taken, a debate upon extending the sweep of the provision to cover active euthanasia as well is not far away in sight but that can only be after the provisions of passive euthanasia are successfully imbibed by the society.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Historically, various religions have also practised this form of euthanasia.

In a series of recent landmark judgments, the Hon'ble Supreme Court, on March, 9, 2018, added another feather to its cap when it put to rest the long-debated issue of euthanasia i.e. mercy killing. Indian society had, for long, considered the concept of mercy killing as a taboo and had prevented itself from opening up to the idea and, as such, the political dispensations had also been reluctant in promulgating the relevant legislations on the subject. However, the change came about with the case of Aruna Shanbaug which was decided by the Supreme Court in 2011, wherein, the apex court permitted passive euthanasia and issued strict guidelines for the same which included a clearance from the jurisdictional high court. The latest verdict of March 9 is in pursuance to the previous one and has also introduced the concept of 'living will' which is a document executed by an individual of a sound mental disposition, thereby, placing on record as to whether he/she would like to be placed on artificial medical support should the individual suffer from an incurable terminal ailment. As a reference, worldwide, there are multiple recognised forms of euthanasia like passive/active euthanasia, assisted suicide etc but India has only permitted passive euthanasia. The basic difference is that, in active euthanasia, death of the patient is brought about by an action like administering an overdose of medicines whereas passive euthanasia involves an omission to provide any further medical support and letting the individual die in natural course. Historically, various religions have also practised this form of euthanasia. For example, Jainism has the concept of Sallekhana which is primarily practiced by seers. In this, when they feel like putting an end to their worldly journey, they refuse the food, water or medications and, gradually, slip into eternal sleep. But this was not a legally recognised concept and had also led to controversies in recent years. But now, with the legal sanction, the concept of euthanasia has been accepted and can be professed by anyone who chooses the path. While passing the judgement, Supreme Court was also conscious of the probable misuse of this provision and, as such, has introduced multiple layers of precautions in the form of guidelines so as to ensure that the provision is exercised in its letter and spirit. As stated above, there is no legislation in place on the subject and, hence, till that time, the guidelines issued by the apex court would act as guiding light. As a basic measure, the 'living will' can be executed only by an individual of sound mind out of free will and volition. The living will has to be unambiguous in its intent and should clearly state the terms and conditions and circumstances of withdrawal. Further, the living will should specify the name of guardian or a close relative who, in the event of executor becoming completely indisposed, would be authorised to accord consent on behalf of the patient to withdraw the treatment. In order to allay the fears of misuse, the Supreme Court has also provided for the clearance by the State before the living will is carried out. The living will is to be signed by the executor before two attesting witnesses and the same is to be countersigned by the jurisdictional Judicial Magistrate, First Class. Both the Judicial Magistrate and the witnesses would record their satisfaction as to the free will of the executor while preserving one copy in his office and sending another to the record of the jurisdictional district court and to the competent officer of the local government. The safeguards have also been provided at the medical platform like verifying the authenticity of the living will and forming of medical boards - one by hospital and another by the district collector - and, only after their clearance, can the process be proceeded with. Undoubtedly, this is a welcome introduction by the Supreme Court and it is hoped that the provision is carried out in letter and spirit and ends the sufferings of those with no hopes. However, with the first step taken, a debate upon extending the sweep of the provision to cover active euthanasia as well is not far away in sight but that can only be after the provisions of passive euthanasia are successfully imbibed by the society. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: Passive euthanasia brings in a new wind of change

Out of the unregulated sectors in India, real estate had, lately, garnered the maximum notoriety, given their misuse of power and resorting to patently unethical market practices. For the uninitiated, an unregulated sector is the one which does not have a dedicated legislation to govern its functioning and is, primarily, governed by the market practices.

Being unregulated, many builders misused the lack of negotiating power of the customers and resort to practices like fixed unilateral contracts which had conditions that clearly lacked fairness. Lately, the builders have also been missing the deadlines for possession of the property which is forming the major share of real estate litigation in consumer courts. The primary reason for the same was the diverting of the funds collected for one project to start another project simultaneously which adversely affected the progress of both.

The judicial and quasi-judicial forums were conscious about it and a series of judgments against the builders is a testimony to the fact. The Supreme Court, particularly, is coming down heavily on the leading builders who approached the top court citing their inability to refund the sums paid to them by the customers. Even the consumer courts have, time and again, chosen to sever the terms of builder-buyer agreements which are devoid of fairness. We are not to miss out on the order of the Competition Commission of India against DLF, whereby, a staggering penalty of Rs. 630 Crores was levied on the builder for the abuse of dominance in the form of unfair and arbitrary terms in the agreements.

From the perspective of the real estate sector also, the lack of fairness and transparency in transactions has adversely affected the investment in the sector and faith of customers. In sum and substance, this attitude had affected every stakeholder in the sector, be it the customers or the sector itself.

In order to rein in the menace, the government enacted the Real Estate (Regulation and Development) Act, 2016 which, among others, will provide a dedicated and expert sectoral regulator to adjudicate upon the disputes arising out of the real estate transactions. At the same time, it would also reduce the workload of the other judicial and quasi-judicial authorities which were facing an ever-increasing rise in litigations pertaining to default by builders.

The primary objective of the enactment is to streamline the functioning of the sector while providing sets of guidelines for the parties to adhere to in order to minimise the arbitrariness and restore the faith of customers and builders. Some of the aspects which were, hitherto, the subject of the whims and fancies of the builders have been incorporated in the Act as necessary compliances on their part. For example, informing the allottee about any minor addition or alteration and seeking the consent of 2/3rd of allottees about the major ones. Further, the builders are also liable to share the necessary information like the project plan, layout, government approvals and title status etc.

As stated above, till now, there was no dedicated regulatory authority to deal with the disputes pertaining to real estate but, after this Act, the Government has decided to set up a Real Estate Regulatory Authority in every state and Union Territory along with a Real Estate Appellate Tribunal. To prevent the disputes from lingering on, the Government has also set a time limit for them to be adjudicated upon at the earliest.

Further, all new projects are necessarily required to be registered with Real Estate Regulatory Authority if the project size exceeds 500 sq.m. or more than 8 apartments. Even the existing projects are required to be registered if they have not been granted the Occupancy Certificate or Completion Certificate. At the time of registration, the promoters are required to submit all the necessary information pertaining to the project, for example, land status, completion schedule etc. Only after the registration is granted, will the project be allowed to be marketed.&nbsp;

In order to secure the problem of delay in projects, the builders are now required to deposit 70 per cent of the total project cost in a dedicated bank account. Should the project be delayed despite the precautions, the builder would be liable to pay the same interest as the EMI being paid by the customer to the bank.

The systematic workflow would lead to the timely execution of projects along with an increased flow of foreign investment and private participation. In addition, thereto, the builders also stand to benefit from the same as this would lead the unscrupulous elements to exit the market leaving behind only the strong market players having the requisite competence. From the point of view of customers, this would prevent them to be subjected to whims and fancies of the builders and would bring homogeneity in the real estate ecosystem.&nbsp;

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

The lack of fairness and transparency in transactions has adversely affected the investment in the sector and faith of customers. The latest Real Estate Act is set to change the scenario.

Out of the unregulated sectors in India, real estate had, lately, garnered the maximum notoriety, given their misuse of power and resorting to patently unethical market practices. For the uninitiated, an unregulated sector is the one which does not have a dedicated legislation to govern its functioning and is, primarily, governed by the market practices. Being unregulated, many builders misused the lack of negotiating power of the customers and resort to practices like fixed unilateral contracts which had conditions that clearly lacked fairness. Lately, the builders have also been missing the deadlines for possession of the property which is forming the major share of real estate litigation in consumer courts. The primary reason for the same was the diverting of the funds collected for one project to start another project simultaneously which adversely affected the progress of both. The judicial and quasi-judicial forums were conscious about it and a series of judgments against the builders is a testimony to the fact. The Supreme Court, particularly, is coming down heavily on the leading builders who approached the top court citing their inability to refund the sums paid to them by the customers. Even the consumer courts have, time and again, chosen to sever the terms of builder-buyer agreements which are devoid of fairness. We are not to miss out on the order of the Competition Commission of India against DLF, whereby, a staggering penalty of Rs. 630 Crores was levied on the builder for the abuse of dominance in the form of unfair and arbitrary terms in the agreements. From the perspective of the real estate sector also, the lack of fairness and transparency in transactions has adversely affected the investment in the sector and faith of customers. In sum and substance, this attitude had affected every stakeholder in the sector, be it the customers or the sector itself. In order to rein in the menace, the government enacted the Real Estate (Regulation and Development) Act, 2016 which, among others, will provide a dedicated and expert sectoral regulator to adjudicate upon the disputes arising out of the real estate transactions. At the same time, it would also reduce the workload of the other judicial and quasi-judicial authorities which were facing an ever-increasing rise in litigations pertaining to default by builders. The primary objective of the enactment is to streamline the functioning of the sector while providing sets of guidelines for the parties to adhere to in order to minimise the arbitrariness and restore the faith of customers and builders. Some of the aspects which were, hitherto, the subject of the whims and fancies of the builders have been incorporated in the Act as necessary compliances on their part. For example, informing the allottee about any minor addition or alteration and seeking the consent of 2/3rd of allottees about the major ones. Further, the builders are also liable to share the necessary information like the project plan, layout, government approvals and title status etc. As stated above, till now, there was no dedicated regulatory authority to deal with the disputes pertaining to real estate but, after this Act, the Government has decided to set up a Real Estate Regulatory Authority in every state and Union Territory along with a Real Estate Appellate Tribunal. To prevent the disputes from lingering on, the Government has also set a time limit for them to be adjudicated upon at the earliest. Further, all new projects are necessarily required to be registered with Real Estate Regulatory Authority if the project size exceeds 500 sq.m. or more than 8 apartments. Even the existing projects are required to be registered if they have not been granted the Occupancy Certificate or Completion Certificate. At the time of registration, the promoters are required to submit all the necessary information pertaining to the project, for example, land status, completion schedule etc. Only after the registration is granted, will the project be allowed to be marketed. In order to secure the problem of delay in projects, the builders are now required to deposit 70 per cent of the total project cost in a dedicated bank account. Should the project be delayed despite the precautions, the builder would be liable to pay the same interest as the EMI being paid by the customer to the bank. The systematic workflow would lead to the timely execution of projects along with an increased flow of foreign investment and private participation. In addition, thereto, the builders also stand to benefit from the same as this would lead the unscrupulous elements to exit the market leaving behind only the strong market players having the requisite competence. From the point of view of customers, this would prevent them to be subjected to whims and fancies of the builders and would bring homogeneity in the real estate ecosystem. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: Will India's notorious real estate sector change with new regulations?

The juvenile jurisprudence in India seemed to have come of age with the decision of trying the 16 years old perpetrator of the murder in Ryan International School in Gurugram as an adult in view of the original juvenile legislation being replaced by Juvenile Justice (Care and Protection of Children) Act, 2015 (The Act). The new Act lowered the age of adult criminal liability from 18 to 16 with certain conditions. This was the result of an outcry in the wake of infamous Nirbhaya gang-rape and murder case in 2012, where the most brutal of the accused was treated as a juvenile despite he was just a little under 18 years. The government did get up, took notice and made some amendments as stated above but the concept does need a deeper analysis.&nbsp;

One of the arguments advanced in support of keeping the juvenile law as invasive as possible is that, till the age of 18 (now 16), the mental faculty of the child is not developed enough so as to be able to understand the nature and consequences of the action. But it is to be understood that this assertion was justified at the time when the technology was not as advanced and surrounding societal circumstances were conducive. In the present scenario, technology has provided every information at the fingertips of an individual and, as such, the child is able to imbibe that much earlier than what he would have been able to, a few decades ago. In terms of society, the prevalent hostile environment has also caused the children of a reasonable age to experience the same and start responding to it at a much younger age.

The system needs to be receptive to the environment and change its perception according to the need of the hour. The brain is only an organ of the body but the mind is referred to as the ability of an individual to be aware of things, to think and to feel. That ability differs from person to person depending upon the circumstances that child is surrounded by. As a reference, a child who is exposed to a greater degree of public interaction would end up being more street smart as compared to a child of the same age who lives in the protective environment of the household.&nbsp;

The Act has, for the purpose of the application, classified the offences in three categories: 
Firstly, petty - which include the offences with a maximum punishment up to 3 years.&nbsp;Secondly, serious - which include the offences for which punishment is between 3 to 7 years.&nbsp;Thirdly, heinous - which include the offences for which minimum punishment is 7 years or more.&nbsp;

It is to be noted that, except heinous offences, for all other offences, the juvenile will not be trialled as an adult but would receive the institutional care for a maximum period of three years. Even for heinous offences, the minor accused, aged more than 16, would be presented before the Juvenile Justice Board and the Board will decide as to whether to send the child for trial as an adult or to send the accused to rehabilitation centre based upon the mental and physical ability of the child.&nbsp;

The present form of the statute, although better than before, still leaves a lot wanting and is just not sufficient to rein in the growing menace of juvenile crimes when even the serious offences are considered to have been committed without knowing the consequences of the action. It is reiterated that mental ability is an abstract principle and it changes with the circumstances. Criminal law provides two major touchstones to determine criminal liability i.e. a guilty mind and a criminal act in pursuance thereof. &nbsp;

There are certain offences where, irrespective of age, if committed, the guilt of the individual automatically follows. We cannot forget the Guwahati molestation case where a young lady was sexually assaulted for about 40 minutes in full public view. One of the perpetrators there was a juvenile. Unfortunately, even after the present amendment, this sinister offence would not make the accused liable to be trialled as an adult since the punishment for the same is a maximum term of five years. No stretch of the imagination could justify the argument that the juvenile there was not aware of his actions.

The changing paradigm of society makes it imperative to have the focus more on the offence rather than the offender, especially for the offences which inherently call for a punitive action. The rights of a victim cannot be brushed aside merely because they are in dispute with the age of the offender. It is hoped that coming years would bring with them a tilt towards reality rather than abstraction.&nbsp;

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

The system needs to be receptive to the society and change its law and perception according to the need of the hour.

The juvenile jurisprudence in India seemed to have come of age with the decision of trying the 16 years old perpetrator of the murder in Ryan International School in Gurugram as an adult in view of the original juvenile legislation being replaced by Juvenile Justice (Care and Protection of Children) Act, 2015 (The Act). The new Act lowered the age of adult criminal liability from 18 to 16 with certain conditions. This was the result of an outcry in the wake of infamous Nirbhaya gang-rape and murder case in 2012, where the most brutal of the accused was treated as a juvenile despite he was just a little under 18 years. The government did get up, took notice and made some amendments as stated above but the concept does need a deeper analysis. One of the arguments advanced in support of keeping the juvenile law as invasive as possible is that, till the age of 18 (now 16), the mental faculty of the child is not developed enough so as to be able to understand the nature and consequences of the action. But it is to be understood that this assertion was justified at the time when the technology was not as advanced and surrounding societal circumstances were conducive. In the present scenario, technology has provided every information at the fingertips of an individual and, as such, the child is able to imbibe that much earlier than what he would have been able to, a few decades ago. In terms of society, the prevalent hostile environment has also caused the children of a reasonable age to experience the same and start responding to it at a much younger age. The system needs to be receptive to the environment and change its perception according to the need of the hour. The brain is only an organ of the body but the mind is referred to as the ability of an individual to be aware of things, to think and to feel. That ability differs from person to person depending upon the circumstances that child is surrounded by. As a reference, a child who is exposed to a greater degree of public interaction would end up being more street smart as compared to a child of the same age who lives in the protective environment of the household. The Act has, for the purpose of the application, classified the offences in three categories: Firstly, petty - which include the offences with a maximum punishment up to 3 years. Secondly, serious - which include the offences for which punishment is between 3 to 7 years. Thirdly, heinous - which include the offences for which minimum punishment is 7 years or more. It is to be noted that, except heinous offences, for all other offences, the juvenile will not be trialled as an adult but would receive the institutional care for a maximum period of three years. Even for heinous offences, the minor accused, aged more than 16, would be presented before the Juvenile Justice Board and the Board will decide as to whether to send the child for trial as an adult or to send the accused to rehabilitation centre based upon the mental and physical ability of the child. The present form of the statute, although better than before, still leaves a lot wanting and is just not sufficient to rein in the growing menace of juvenile crimes when even the serious offences are considered to have been committed without knowing the consequences of the action. It is reiterated that mental ability is an abstract principle and it changes with the circumstances. Criminal law provides two major touchstones to determine criminal liability i.e. a guilty mind and a criminal act in pursuance thereof. There are certain offences where, irrespective of age, if committed, the guilt of the individual automatically follows. We cannot forget the Guwahati molestation case where a young lady was sexually assaulted for about 40 minutes in full public view. One of the perpetrators there was a juvenile. Unfortunately, even after the present amendment, this sinister offence would not make the accused liable to be trialled as an adult since the punishment for the same is a maximum term of five years. No stretch of the imagination could justify the argument that the juvenile there was not aware of his actions. The changing paradigm of society makes it imperative to have the focus more on the offence rather than the offender, especially for the offences which inherently call for a punitive action. The rights of a victim cannot be brushed aside merely because they are in dispute with the age of the offender. It is hoped that coming years would bring with them a tilt towards reality rather than abstraction. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: Why India's juvenile law fails to control crime

8th January 2018 was the day when the Supreme Court of India, in the case of Navtej Singh Johar vs Union of India, rekindled the hopes in the minds of the members of LGBT community who, for long, had been considered criminals in the statute book and was seen as outcast in the eyes of many. This was the day when it was decided by the Apex Court to reconsider it&#39;s 2013 decision, whereby, Section 377 of the IPC was reinstated in the statute while setting aside the judgment of Delhi High Court in the Naz Foundation Case.

&nbsp;

As a brief overview, Section 377 also criminalises the sexual relationship between two consenting adults which is against the order of nature. The provision became a part of the Indian legal system at the time of introduction of the Indian Penal Code in 1860 when India was still a colony of the British.

&nbsp;

While debating upon this issue, it becomes abundantly clear that the primary thrust of the supporters of homophobic regulations rests upon the abstract principles, such as public morality and order of nature. A deeper analysis, thereof, would reveal that India is, in fact, labouring under the weight of someone else&rsquo;s misjudgment.

&nbsp;

Pre-colonial India never recognised any discrimination based on someone&rsquo;s sexual inclination, let alone criminalising the same, and our ancient scriptures and sculptures are a testimony to the fact that homosexuality was an accepted facet of our culture.&nbsp;

&nbsp;

On the contrary, the western world, particularly the United Kingdom, which laid the foundation of the modern Indian legal fa&ccedil;ade, was averse to homosexuality owing to both social and religious considerations.

&nbsp;

As the Delhi High Court recounted in its judgment, the earliest records of homosexuality as a crime in the English common law were chronicled as early as 1290. Subsequently, under the Buggery Act of 1533, homosexuality came to be penalised by hanging. By mid-1800&rsquo;s, the death penalty on homosexuality was abolished but it still remained a crime, &lsquo;not to be mentioned by Christians&rsquo;.

&nbsp;

At the time the Indian Penal Code was enacted in 1860, India was still a colony of the British and it was, actually, the English morality on the subject which came to be enforced upon the Indian society. Even after 70 years of independence, we still consider ourselves shackled in the Victorian mindset.

&nbsp;

Order of nature is another argument that is advanced to defame homosexuality on every forum. In extending the same order of nature argument, we can say, members of LGBT community are born different and, for them, that is their respective order or nature.

Unfortunately, in the world of humans, laws of nature no more hold good and it is only the likings and dislikings of a select few that become the touchstone for the remainder. In the wisdom of our legislature, which, at times, gets claustrophobic, sexual intercourse is meant only for the purpose of procreation and nothing else. This sentiment is reflected in the very language of the section when it speaks about carnal intercourse against the order of nature.&nbsp;

&nbsp;

However, the Supreme Court seems to be opening up to the wider connotation of this concept. In Navtej Singh Johar case, it was observed that order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and, accordingly, change takes place. Morality which public perceives, the Constitution may not conceive of.

&nbsp;

Indian lawmakers, on the other hand, have failed to come to terms with the positive aspects of their own ancient culture and, even now, are consistently digging their heels against the legal developments across the world which have been introduced to meet the genuine demands of society.

&nbsp;

In the light of above, it would be worthwhile to analyse as to what is the stand towards homosexuality in the United Kingdom now. While India continues to carry the burden of a negative perception and the corresponding law which was enforced upon her by her conqueror, it has already become redundant in UK. Interestingly, United Kingdom had decriminalised homosexuality in 1967 onwards and, in 2014, gay marriages also became legal in England, Wales and Scotland.

&nbsp;

This head-in-the-sand attitude of the Indian system is not new and was witnessed in the past too when age-old and fossilised arguments were advanced in order to scuttle some revolutionary developments at the hands of Courts.&nbsp;

&nbsp;

It is high time that India begins to drive away from age-old legislations which snatch the basic fundamental rights of citizens. It is possible only when we let the realities of the time sink in and open up to changes required to deal with them. Hopefully, the Supreme Court would, finally, open the doors of acceptance to LGBT community and confer upon them their right to live with dignity.

&nbsp;

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)&nbsp;&nbsp;

&nbsp;

Pre-colonial India never recognised any discrimination based on someone’s sexual inclination, let alone criminalising the same.

8th January 2018 was the day when the Supreme Court of India, in the case of Navtej Singh Johar vs Union of India, rekindled the hopes in the minds of the members of LGBT community who, for long, had been considered criminals in the statute book and was seen as outcast in the eyes of many. This was the day when it was decided by the Apex Court to reconsider it's 2013 decision, whereby, Section 377 of the IPC was reinstated in the statute while setting aside the judgment of Delhi High Court in the Naz Foundation Case. As a brief overview, Section 377 also criminalises the sexual relationship between two consenting adults which is against the order of nature. The provision became a part of the Indian legal system at the time of introduction of the Indian Penal Code in 1860 when India was still a colony of the British. While debating upon this issue, it becomes abundantly clear that the primary thrust of the supporters of homophobic regulations rests upon the abstract principles, such as public morality and order of nature. A deeper analysis, thereof, would reveal that India is, in fact, labouring under the weight of someone else’s misjudgment. Pre-colonial India never recognised any discrimination based on someone’s sexual inclination, let alone criminalising the same, and our ancient scriptures and sculptures are a testimony to the fact that homosexuality was an accepted facet of our culture. On the contrary, the western world, particularly the United Kingdom, which laid the foundation of the modern Indian legal façade, was averse to homosexuality owing to both social and religious considerations. As the Delhi High Court recounted in its judgment, the earliest records of homosexuality as a crime in the English common law were chronicled as early as 1290. Subsequently, under the Buggery Act of 1533, homosexuality came to be penalised by hanging. By mid-1800’s, the death penalty on homosexuality was abolished but it still remained a crime, ‘not to be mentioned by Christians’. At the time the Indian Penal Code was enacted in 1860, India was still a colony of the British and it was, actually, the English morality on the subject which came to be enforced upon the Indian society. Even after 70 years of independence, we still consider ourselves shackled in the Victorian mindset. Order of nature is another argument that is advanced to defame homosexuality on every forum. In extending the same order of nature argument, we can say, members of LGBT community are born different and, for them, that is their respective order or nature. Unfortunately, in the world of humans, laws of nature no more hold good and it is only the likings and dislikings of a select few that become the touchstone for the remainder. In the wisdom of our legislature, which, at times, gets claustrophobic, sexual intercourse is meant only for the purpose of procreation and nothing else. This sentiment is reflected in the very language of the section when it speaks about carnal intercourse against the order of nature. However, the Supreme Court seems to be opening up to the wider connotation of this concept. In Navtej Singh Johar case, it was observed that order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and, accordingly, change takes place. Morality which public perceives, the Constitution may not conceive of. Indian lawmakers, on the other hand, have failed to come to terms with the positive aspects of their own ancient culture and, even now, are consistently digging their heels against the legal developments across the world which have been introduced to meet the genuine demands of society. In the light of above, it would be worthwhile to analyse as to what is the stand towards homosexuality in the United Kingdom now. While India continues to carry the burden of a negative perception and the corresponding law which was enforced upon her by her conqueror, it has already become redundant in UK. Interestingly, United Kingdom had decriminalised homosexuality in 1967 onwards and, in 2014, gay marriages also became legal in England, Wales and Scotland. This head-in-the-sand attitude of the Indian system is not new and was witnessed in the past too when age-old and fossilised arguments were advanced in order to scuttle some revolutionary developments at the hands of Courts. It is high time that India begins to drive away from age-old legislations which snatch the basic fundamental rights of citizens. It is possible only when we let the realities of the time sink in and open up to changes required to deal with them. Hopefully, the Supreme Court would, finally, open the doors of acceptance to LGBT community and confer upon them their right to live with dignity. (Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Opinion: Superpower India treats LGBTs as per discriminatory colonial laws

Author

Zee News Rajasthan

Editor

Siddharth Jain

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