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Notes for All India Bar Examination

This new Act has expressly recognised certain acts as offences which were dealt under related laws. These new offences like, acid attack, sexual harassment, voyeurism, stalking have been incorporated into the Indian Penal Code: Section Offence Punishment Notes

326A

Acid attack

Imprisonment not less than ten years but which may extend to imprisonment for life and with fine which shall be just and Gender neutral reasonable to meet the medical expenses and it shall be paid to the victim

326B

Imprisonment not less than five Attempt to years but which may extend to Gender neutral Acid attack seven years, and shall also be liable to fine Gender neutral i. Rigorous imprisonment up to five years, or with fine, or with both in case of offence described in clauses (i) & (ii) Imprisonment up to one year, or with fine, or with both in other cases iv. v. physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours; or making sexually remarks; or coloured

ii. iii.

354A

Sexual harassment

forcibly showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

354B

Act

with Imprisonment not less than three Assaults or uses criminal force to any

intent disrobe woman

to years but which may extend to woman or abets such act with the a seven years and with fine. intention of disrobing or compelling her to be naked In case of first conviction, imprisonment not less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. Watching or capturing a woman in private act, which includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim's genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.

354C

Voyeurism

354D

Stalking

Only for women. TO follow a woman and contact, or attempt to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such Imprisonment not less than one woman; or monitor the use by a year but which may extend to woman of the internet, email or any three years, and shall also be other form of electronic liable to fine communication. There are exceptions to this section which include such act being in course of preventing or detecting a crime authorised by State or in compliance of certain law or was reasonable and justified.

Changes in law
Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370 and 370A which deals with trafficking of person for exploitation. If a person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution, slavery, forced organ removal, etc. will be punished with imprisonment ranging from at least 7 years to imprisonment for the remainder of that persons natural life depending on the number or category of persons trafficked. [16]Employment of a trafficked person will attract penal provision as well.[16]

The most important change that has been made is the change in definition of rape under IPC. The word rape has been replaced with sexual assault in Section 375, and have added penetrations other than penile penetration an offence. The definition is broadly worded and gender neutral in some aspect, with acts like penetration of penis, or any object or any part of body to any extent, into the vagina, mouth,urethra or anus of another person or making another person do so, apply of mouth or touching private parts constitutes the offence of sexual assault. The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. A new section, 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that persons natural life, or with death." [17] In case of "gang rape", persons involved regardless of their gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim. The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitutestatutory rape. Certain changes has been introduced in the CrPC and Evidence Act, like the process of recording the statement of the victim has been made more victim friendly and easy but the two critical changes are: 1. the 'character of the victim' is now rendered totally irrelevant, and 2. there is now a presumption of 'no consent' in a case where sexual intercourse is proved and the victim states in the court that she did not consent. The Bill was passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, making certain changes from the provisions in the Ordinance. The Bill received Presidential assent on 2 April 2013 and came into force from 3 April 2013. The changes made in the Act incomparison with the Ordinance is listed as follows: Offence Changes

Acid attack

Fine shall be just and reasonable to meet medical expenses for treatment of victim, while in the Ordinance it was fine up to Rupees 10 lakhs.

Sexual

"Clause (v) any other unwelcome physical, verbal or non-verbal conduct of sexual

harassment

nature" has been removed. Punishment for offence under clause (i) and (ii) has been reduced from five years of imprisonment to three years. The offence is no longer gender-neutral, only a man can commit the offence on a woman.

Voyeurism

The offence is no longer gender-neutral, only a man can commit the offence on a woman.

Stalking

The offence is no longer gender-neutral, only a man can commit the offence on a woman. The definition has been reworded and broken down into clauses, The exclusion clause and the following sentence has been removed "or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking". Punishment for the offence has been changed; A man committing the offence of stalking would be liable for imprisonment up to three years for the first offence, and shall also be liable to fine and for any subsequent conviction would be liable for imprisonment up to five years and with fine.

Trafficking of "Prostitution" has been removed from the explanation clause person

Rape

The word sexual assault has been replaced back to rape. The offence is no longer gender-neutral, only a man can commit the offence on a woman. The clause related to touching of private parts has been removed.

Recent Judgments by the Supreme Court Resurgence India V Election Commission of India & Anr
The court directed the Election Commission to provide the NOTA button in the EVM. For democracy to survive, it is essential that the best available men should be chosen for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote. Thus the NOTA option would indeed compel political parties to nominate sound candidates, said a Bench of Chief Justice P.

Sathasivam and Justices Ranjana Desai and Ranjan Gogoi, while allowing a petition filed by the Peoples Union for Civil Liberties. Writing the judgment, the CJI said: Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval of the kind of candidates being put up by the parties. Gradually, there will be a systemic change and the parties will be forced to accept the will of the people and field candidates who are known for their integrity. The Bench said the NOTA option will accelerate effective political participation in the present state of the democratic system and the voters will in fact be empowered. The right to cast a negative vote, at a time when electioneering is in full swing, will foster the purity of the electoral process and also fulfil one of its objectives, namely, wide participation of people.

Decriminalization of Gay Sex Suresh Kumar Koushal and another V. NAZ Foundation and others
On December 11, a Supreme Court bench comprising justices G S Singhvi and S J Mukhopadhaya set aside the Delhi High Court's verdict which had in 2009 decriminalised gay sex among consenting adults in private. It ruled that Section 377 in the Indian Penal Code will continue making gay sex -- "irrespective of age and consent" -- an offence punishable with a sentence up to life term and put the onus Parliament "to consider the desirability and propriety of deleting Section 377 from the statute book or amend it. The bench discarded the "anxiety" shown by the high court "to protect the so-called rights of LGBT persons" and said that it had wrongly relied upon the judgments of other jurisdictions which may be informative in relation to the plight of sexual minorities but it could not be applied "blindfolded" for deciding the constitutionality of the law enacted by the Indian legislature. Demolishing the argument that Section 377 targeted LGBTs, the court said that it did not criminalize a particular people or identity or orientation. "It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation," it said. Activists campaigning for LGBT rights expressed anguish as well as fear of being vulnerable to all sorts of exploitation, prejudice and feeling ostracised.

Even the political class is divided on the issue. While the BJP supported the verdict, terming homosexuality as against the established norms of society, the government and the Congress went on an overdrive and indicated that various options, including ordinance, were available for negating the verdict.

Unconstitutional Section 8 (4) of the Representation of the People Act The Chief Election Commissioner Etc. V Jan Chaukidar (Peoples Watch) & Ors
On July 11, the Supreme Court held that charge-sheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months time for appeal, as was the case before. A bench of Justices A K Patnaik and S J Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. Section 8 of the RP Act deals with disqualification on conviction for certain offences: A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months. The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected. The first politicians to lose their Parliament membership were Congressman Rasheed Masood (convicted for cheating, criminal conspiracy and forgery and sentenced to 4 years in jail), RJD chief Lalu Prasad Yadav and JD-U MP Jagdish Sharma (both convicted in the Bihar fodder scam) According to the Association of Democratic Reforms as many as 72 sitting MPs face criminal charges and could be disqualified if convicted for over two years

Restoring the power of the red beacon Abhay Singh V State of Uttar Pradesh and others
On December 11, the Supreme Court slammed the rampant misuse of red beacon lights on
cars, saying the practice had perhaps no parallel in the world democracies.

A Bench of Justices G S Singhvi and C Nagappan directed the states to amend the Motor Vehicle Rules to restrict the use of the red beacon and impose an exemplary fine on those who misused it. "The use of red lights on the vehicles carrying the holders of constitutional posts will in no manner compromise with the dignity of other citizens and individuals or embolden them to think that they are superior to other people, more so, because this distinction would be available to them only while on duty and would be co-terminus with their tenure," it said. Urging the parliament to make laws for imposition of "adequate" and "deterrent" penalty for any misuse, the bench ordered the state governments to revise their lists of "high dignitaries". The Bench said, "The red lights symbolise power and a stark differentiation between those who are allowed to use it and the ones who are not. A large number of those using vehicles with red lights have no respect for the laws of the country and they treat the ordinary citizens with contempt. The use of red lights on the vehicles of public representatives and civil servants has perhaps no parallel in the world democracies," it noted. The bench said the last four decades have witnessed the best political and executive practices being distorted to a massive extent, and the best example of this is the use of symbols of authority, including red lights on vehicles of public representatives and civil servants of various cadres.

Keeping hope alive for cheaper cancer drug NOVARTIS AG V UNION OF INDIA & OTHERS and NATCO PHARMA LTD. V UNION OF INDIA & OTHERS
In
yet another landmark judgment, the Supreme Court on April 1 rejected a patent plea by Swiss drugmaker Novartis AG for cancer drug Glivec, boosting the case for cheaper drugs for life-threatening diseases. The decision in the seven-year legal battle was keenly awaited by the two most interested parties -- big pharma companies and health aid groups -- with both sides saying the outcome will set a precedent with far-reaching consequences for the future availability of the drugs. A bench of justices Aftab Alam and Ranjana Prakash Desai refused to give credence to Novartis' claim that 'Imatinib Mesylate', a substance used in the cancer drug, is a new product and the outcome of an invention.

In its 98-page verdict, the bench said that law of patent in the country should not be developed on the lines where patent is determined not on the intrinsic worth of invention but by the artful drafting of companies' claims. The legal battle over the patent, in which the claim of the Swiss firm was vehemently opposed by the Indian companies and health activists, was keenly watched by pharma companies across the world and will clear hurdles coming in the way of the manufacture of generic drugs in the country for cancer patients. According to official estimates there are over 28 lakh cancer patients in the country. "We certainly do not wish the law of patent in this country to develop on the lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skillful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent," the bench said. The apex court judgment can pave the way for cancer patients getting cheaper drugs as a onemonth dose of Glivec costs around Rs 1.2 lakh, while generic drugs, manufactured by Indian companies, for the same period, are priced at Rs 8,000.

Unshackling bureaucracy (Transfer of Civil Service Officers) T.S.R. Subramanian & Ors. V Union of India & Ors
Bureaucrats in India have always complained of political
duties. The Supreme Court, on October 31, addressed that issue in a landmark verdict. The court ruled that bureaucrats should not act on verbal orders given by political bosses, as it sought an end to frequent transfers and suggested a fixed tenure to insulate them from political interference. Suggesting sweeping reforms in the functioning of bureaucracy, a bench headed by Justice K S Radhakrishnan said Parliament must enact a law to regulate postings, transfers and disciplinary action against bureaucrats. Holding that much of the deterioration in bureaucracy is because of political interference, it said that civil servants should not act on verbal orders given by political executives and all actions must be taken by them on the basis of written communication. interference while discharging their

The bench, which also had Justice P C Ghose, said giving a fixed minimum tenure to a civil servant will not only promote professionalism and efficiency, but also good governance. It asked the Centre and all State governments along with Union Territories to issue directions within three months for providing fixed tenure to civil servants. The bench also said Civil Services Board should be constituted at the Centre and Statelevels. The verdict, which is on the line of apex court's earlier order on police reforms for giving fixed tenure to senior police officers in Prakash Singh case, will go a long way in giving freedom and independence to the functioning of bureaucracy. The judgment came close on the heels of controversies surrounding Ashok Khemka, Indian Administrative Service officer of Haryana cadre, over DLF-Robert Vadra land deal, and Durga Sakhti Nagpal, Uttar Pradesh cadre IAS officer, who was targeted by the state government for alleged misconduct. The apex court passed the verdict on a Public-Interest Litigation filed by 83 retired bureaucrats, including former Cabinet Secretary T S R Subramanian seeking its directions for insulating bureaucracy from political interference.

Landmark judgments in the Indian constitution


Champakam Dorairajan Vs State of Madras 1951 Well before Arjun Singh, this case concerning admissions of backward classes to educational institutions led B.R. Ambedkar, then the law minister, to pilot the first-ever amendment to the Constitution. K.M. Nanavati Vs State of Maharashtra 1960 The crime of passion, where Commander Kawas Maneckshaw Nanavati murdered his wife's lover, marked the end of jury trials in India when the officer was let off. Golaknath Vs State of Punjab 1967 The Supreme Court made fundamental rights immune from amendment until Parliament reasserted its authority in 1971 by amending Articles 13 and 368 of the Constitution. Madhav Jiwaji Rao Scindia Vs Union of India 1970 The Supreme Court rejected a 1970 presidential order abolishing titles, privileges and privy purses of India's erstwhile princely rulers. Kesavananda Bharati Vs State of Kerala 1973 In 1971, Parliament empowered itself to amend any part of the Constitution. However, the Supreme Court laid down that such amendments

could not destroy the 'basic structure' of the Constitution-fundamental rights are part of the 'basic structure'. Himmat Lal Shah Vs Commissioner of Police 1973 It dealt with a common citizen's right to hold public meetings on streets and the extent to which the state could regulate this right. Indira Gandhi Vs Raj Narain 1975 Indira Gandhi declared Emergency after being ordered by the Allahabad High Court to vacate her seat for malpractice. The Supreme Court later overturned the decision. A.D.M. Jabalpur Vs S. Shukla 1976 The Supreme Court declared the right to move court under Articles 14, 21 and 22 would remain suspended during the Emergency. Maneka Gandhi Vs Union of India 1978 The case caused a huge uproar over the definition of freedom of speech.The court ruled that the procedure must be fair and the law must not violate other fundamental rights. Minerva Mills Vs Union of India 1980 The Supreme Court again applied the 'basic structure' theory, saying that social welfare laws could not curb fundamental rights. Ramesh Dalal Vs Union of India 1988 The case dealt with the subject of pre-Partition communal violence, and how its depiction was not in violation of Constitutional articles. Rajan Case 1981 Involving the torture and death of a final year engineering student in custody in Kerala, the case led to the resignation of K. Karunakaran, then the home minister, and imprisonment of the officers accused. Kehar Singh Vs Delhi Administration 1984 Kehar Singh was accused of taking part in the murder of Indira Gandhi. Though the death sentence was upheld by the Supreme Court, its accuracy has often been questioned. Babri Masjid, Ayodhya Case 1994 The case questioned the Constitutional validity of the acquisition of a certain area adjoining the disputed site. The Supreme Court upheld status quo on the disputed structures. Best Bakery Case 2006 The controversial trial came to an end with the conviction of nine people. The case related to 14 deaths in an arson attack on the Best Bakery in Vadodara in 2002. A retrial was ordered in 2004 after a local court acquitted all 21 accused. Shah Bano Case 1985 The case, related to the issue of Muslim personal law, caused a furore as the court awarded Shah Bano a maintenance allowance after divorce. Indira Sawhney Vs Union of India 1992 The Supreme Court upheld the implementation of recommendations made by the Mandal Commission. It also defined the "creamy layer" criteria

and

reiterated

that

the

quota

could

not

exceed

50

per

cent.

St. Stephen's College Vs University of Delhi 1992 The identity of St. Stephen's College as a minority-run institution was put under the scanner as it was receiving grant-in-aid from the Government. The court ruled that grants could not change the minority character of an institution. S.R. Bommai Vs Union of India 1994 The case laid down the guidelines in proving a majority under Article 356. The recent Arjun Munda case judgement was also passed with reference to the Bommai case. R. Rajagopal Vs State of Tamil Nadu 1994 The case decided that the right to privacy subsisted even if a matter became one of public record. The right to be let alone is part of personal liberty. P.A. Inamdar Vs State of Maharashtra 2005 The Supreme Court stated that "neither the policy of reservation can be enforced by the state nor any quota of admissions be carved out in private educational institutions". Sarla Mudgal Vs Union of India 1995 The Supreme Court held that a second marriage solemnised while the first existed was a punishable offence, though it did not become null and void. Jamaat-e-Islami Hind Vs Union of India 1995 The association was banned for unlawful activities. But the decision was reversed due to lack of evidence. Ministry of I&B Vs Cricket Association of Bengal 1995 The case, which dealt with the broadcast of the Hero Cup, was the first tussle involving the telecast of an international event by a private broadcaster. Vishaka Vs State of Rajasthan 1997 For the first time, sexual harassment, including sexually coloured remarks and physical contact, was explicitly and legally defined as an unwelcome sexual gesture. It stated that every instance of sexual harassment is a violation of fundamental rights. Samatha Vs State of AP 1997 The Supreme Court said government land, tribal land, and forest land in scheduled areas could not be leased to non-tribals or private companies for mining or industrial operations. Such activity can only be done by tribal people or by a government undertaking. Rupan Deol Bajaj Vs K. P. S. Gill 1998 K.P.S. Gill, former chief of Punjab Police, was fined Rs.2.5 lakh in lieu of three months' rigorous imprisonment for slapping senior IAS officer Rupan Deol Bajaj on the posterior.

Representation of the People (Amendment) Act 2002 The judgement of a three-member Bench ordered candidates contesting elections to declare their assets and all criminal cases pending against them at the time of filing of nominations. Tamil Nadu Vs Suhas Katti 2004 The first case involving conviction under the Information Technology Act, 2000, related to the posting of obscene messages on the Internet. Om Prakash Vs Dil Bahar 2006 In a severe deterrent to incidents of rape, the Supreme Court held that a rape accused could be convicted on the sole evidence of the victim, even if medical evidence did not prove rape.