This article is written by Kathakali Banerjee. This article gives a detailed analysis of the effect of the DK Basu Judgment. This article further elaborates on the definition of custodial violence, causes of custodial violence, types of custodial violence, background of the case, facts of the case, issues raised, contentions raised by both parties, the rationale behind the judgement and aftermath of the case.
Table of Contents
Introduction
Police officers being a very important part of law enforcement have a duty to enforce laws and prevent crimes along with that. It is also the duty of the police officers to get hold of the law violators and present them before a magistrate for a fair trial. But for ages, we have seen that the policemen have misused the powers conferred upon them. We have seen innumerable custodial violence which has occurred due to the turning of protectors into perpetrators. Throughout the world, third-degree torture by police officers has always been a topic of great concern and debate. In this article, I endeavour to articulate how the Supreme Court of India has tried to curb custodial violence through its guidelines laid down in DK Basu Vs State of West Bengal (1997). It is considered to be a landmark judgement in criminal jurisprudence.
Causes of Custodial Violence
Even though Section 25 of the Indian Evidence Act 1872 clearly says that confessions made in front of police officers do not hold any evidentiary value in the eyes of the law, police officers exert pressure on the prisoners either to solve cases quickly or for personal bias. Common problems that lead to custodial violence are-
Many police officers are totally unaware of the fact that confessions collected by them in custody do not have any validity in the eyes of law.
Many officers are not even properly trained to handle and interrogate the inmates properly.
Certain psychological factors like stress, trauma and unchecked bias lead to this aggressive behaviour by the police officers.
Medical negligence and lack of proper medical treatment of ill inmates is another major reason for custodial deaths. Lack of proper administrative functions also makes the environment in which an inmate lives unhealthy.
Types of Custodial Violence
Custodial violence can be broadly classified into three categories
Physical violence includes injuries inflicted on the body of an individual in custody by the police authorities
Psychological/Mental violence includes threatening and causing certain acts that would be detrimental to the mental health of the individual. With the passage of time, physical injuries heal to some effect, but these psychological harms make an individual incompetent to live the life of an ordinary person even after they are out of custody.
Sexual violence includes rape, sodomy or any kind of sexual assault caused on women by police authorities on an individual while he is in custody.
Background of DK Basu vs. State of West Bengal (1997)
Definition of custodial violence.
Custodial violence is defined as, any violence including torture, death, or rape by police authorities on inmates while their stay in the judicial or police custody. Violence includes both physical and mental torture, and in many cases we have seen that it has resulted in the death of the individual.
One of the very basic fundamentals of criminal justice jurisprudence is that a person is assumed to be innocent until he is proven guilty. But in most of the cases we have observed that as soon as a police officer gets hold of an individual on the basis of an FIR or complaint, inhumane harassment is inflicted on the person till the date of the judgement. Most of the time we have seen individuals who are not proven to be guilty at the end and get acquitted have suffered unnecessary harassment. Even though they become free to go back to their normal lives, the mental and physical harm they suffered while being in custody, keeps them haunting forever throughout their lives. Custodial violence is considered one of the worst crimes happening in a civilised society.
Before the DK Basu case, the police could not be held liable for their misuse of powers in custody. The victims of custodial violence even though they were awarded compensation, there were no specific guidelines for that. In prominent cases like Rudul Shah vs. State of Bihar (1983), the convicted man was illegally detained for a time period more than his prescribed punishment. This case deals with illegal detention and is an important case relating to compensation in cases of unlawful detention. The court granted compensation to the sufferer, and it was held that the illegal detention of an individual amounts to an infringement of fundamental rights enshrined in our Constitution, especially Article 21. Even though the court granted compensation in the matter, they did not follow any proper guidelines for doing the same.
Another prominent case in this field is Nilabati Behera vs. State of Orissa (1993) which deals with the custodial death of an individual alleged to have committed offence of theft. The judgement given in this case is established as a precedent for holding states liable in cases of custodial deaths. The Apex Court also awarded compensation to the mother of the victim but did not follow any proper guidelines for that. Even while deciding the above-mentioned cases, there were no proper guidelines for the police officers to follow while arresting and treating an individual in prison. A series of custodial deaths and the various decisions given in various judgements caused a lot of dissatisfaction in Indian society. Then came the DK Basu case in 1997, which is considered the most remarkable judgement on custodial violence and death.
Facts of DK Basu vs. State of West Bengal (1997)
The matter of custodial violence was brought before the court by Dr D.K. Basu, executive chairman of the Legal Aid Services of West Bengal to the Chief Justice of India through a letter. On 26th August 1986, Mr Basu posted this letter based on news of custodial violence given in a newspaper. He sent a letter to the then Chief Justice of India, Justice Ranganath Mishra after several deaths in 1986 and recommended that the Court should develop “custody jurisprudence” and formulate modes for awarding compensation. The CJI considered it as a matter of grave concern and treated it as a writ petition invoking the Court’s original jurisdiction under Article 131 of the Constitution of India.
Another letter was followed from the Aligarh province detailing a death in police custody. The letter mentioned sending notices to all state governments and law commissions for suggestions. The Supreme Court considered both the letters addressed to it and appointed Mr Abhishek Manu Singhvi as the amicus curiae for assisting the court in addressing this issue of custodial violence. The Apex Court also took notice of the widespread allegations relating to custodial violence arising from different states, finally giving very important suggestions and guidelines.
Issues of the case
Whether custodial violence and death violate the right to life and personal liberty mentioned under Article 21 of our Constitution?
Is there a need for well-framed rules and guidelines to be followed by police officers while arresting?
Do prisoners have a right to life even while they are behind bars and does custodial death and violence constitute a violation of Article 21?
Can police officers be made liable for causing custodial violence?
On what basis compensation will be awarded to the victims?
Contentions raised by the petitioner
Excessive use of physical power by police officers on detainees to get confessions should be prevented. Use of third degree methods should be curbed.
Violence including rape and physical assault causes severe mental trauma to the detainees which extend beyond what the law tries to address. Causing violence leads to misutilisation of the powers conferred upon the police authorities.
Contentions raised by the respondent
Counsel representing different states asserted that everything relating to the concerned issue was already well established within their respective states.
The state argued that there is no need for legal counsel at the time of arresting an individual.
The state emphasised that they were already framing steps to control the problem of custodial violence.
The responsibility of the police officers in case of custodial violence was discussed. The state contended that action was initiated against the police who misused their power.
Argument raised in DK Basu vs. State of West Bengal (1997)
Presented by petitioners
The petitioners argued that there was a need to have proper guidelines to stop the violence in custody as it violated human rights. They also argued that the right to life and personal liberty enshrined under Article 21 of the Constitution of India. The prisoners even though arrested and are behind the bars have the fundamental right to live. It was also argued that the state should perform its duty to protect the rights of all individuals including those who are arrested and detained. If the state fails to perform its duty , it should be made vicariously liable for the wrongful acts of the police authorities.
The petitioners highlighted the pathetic scenario of ill treatment that goes behind the bars.
Presented by respondents
The respondents on the other hand argued that there is necessity of these custodial procedures and it is necessary for proper enforcement of law and to prevent crimes. Imposing restrictions on the powers of the police authorities will cause hindrance on their part to properly implement the laws. It was also claimed that the conduct of the officers were presumed to be in accordance with the law until and unless proven otherwise. The various challenges faced by the law enforcement authorities like inadequate training, limited resources, pressure to solve a case within limited time were highlighted.
The respondents tried to justify their actions and practices in custody by emphasising the need for a number of procedures for law enforcement purposes.
Judgement in DK Basu vs. State of West Bengal (1997)
The judgement by the bench of Justice A.S. Anand and Justice Kuldip Singh was composed of two parts: establishing procedural safeguards and elaborating a system of compensation for victims of police abuse. The judgement emphasized the global effort against torture. It was also upheld that detainees have their fundamental rights protected, only legally permissible restrictions can be imposed on the enjoyment. A number of important guidelines were laid to be followed by the police officers while arresting someone.
The following was observed by the Apex Court
Custodial violence including rape, torture and death in police custody infringes Article 21 of The Constitution of India as well as basic human rights.
Article 22(1) gives the right of the arrested persons to be informed about their grounds of arrest and the right to be defended by a legal practitioner of his choice. The court held that it also violated the fundamental right enshrined under Article 22(1) of The Indian Constitution.
Interrogation though essential must be conducted on scientific and humane principles: third-degree methods are totally impermissible.
Transparency and accountability in the police actions, while they are arresting an individual, should be there to check the abuse of police power.
Regarding compensation in cases of custodial violence by public servants, the State will also be vicariously liable for their act. The arrested persons also do have their rights which the police authorities must respect.
Proper training including the way of arresting an individual and the treatment of that individual in custody should be given to the police officers before carrying out their arrest duties.
The guidelines given by the Apex Court in cases of arrest and detention
The police officer who arrests a person should bear proper name tags and designations so that they can be easily identified. The particulars of the officers who will interrogate must be recorded in a register.
An arrest memo should be prepared by the police officer carrying out the arrest. The memo shall also be attested by at least one witness including either a family member or a respectable person of the society from where the arrest is made.
The person arrested will have the right to inform any of his close friends or relatives about his arrest as early as possible.
Every detail regarding the arrest like the time, place of arrest and venue of custody of the arrestee must be notified by the police. Where the next friend or relative of the arrestee lives outside the district or town, they should also be informed within a period of 8 to 12 hours after the arrest through the legal aid organisation in the district and the police station of the area concerned telegraphically.
An entry must be made in the diary at the place of detention regarding the arrest of the person as well as the particulars of the friend or relative who has the information about the arrest. The police officers under whose custody the arrestee is shall also be mentioned.
On request, examination can be conducted on the arrestee and every detail regarding any major or minor injury on the body of the arrestee shall be recorded. The inspection memo must be signed by both the arrestee and the police officer affecting the arrest and its copy must be provided to the arrestee.
Within 48 hours of detention, a medical examination should be performed on the arrestee by a trained doctor. The medical examination can also be performed by a doctor appointed by the Director of Health Services of the concerned state.
The arrestee may be permitted to meet his lawyer during interrogation though not throughout the interrogation.
A police control room should be set up at all districts and state headquarters so as to collect information regarding the arrest and place of custody of the arrestee. The information shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest and it should be displayed conspicuously on the notice board of the police control room.
The court mentioned forwarding the required guidelines to the Director General of Police and the Home Secretary of every State/Union Territory, and it shall be their duty to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. Broadcasting of the guidelines through All India Radio National Network of Doordarshan was suggested by the court so that the guidelines could reach the maximum number of people. Distribution of pamphlets in the local language was another method suggested by the Apex Court to spread awareness.
The court also mentioned that if any officer does not follow the guidelines, then he will be liable for contempt of court. These conclusions tried to ensure accountability and transparency in police actions.
Effectiveness of DK Basu guidelines
If we properly study the number of custodial deaths, we will see a good decrease in the number of cases. But still, the graph keeps on fluctuating every year. 2019-20 saw a decrease in custodial violence and deaths as compared to the statistics of 2018-19. Again the graph showed an increase in the rate of violence and deaths in 2021-22. The guidelines do have brought changes in the scenario but proper implementation of certain guidelines is still required to eradicate this practice. Though awareness has been circulated to a great extent, but still traces of unawareness are quite profound at the grassroots level, especially in rural areas. Many cases even go unreported due to lack of proper enforcement. Resource plays an important role in the implementation of the guidelines, India being a poverty-stricken country is always scarce with money. These resource constraints lead to limited staffing and inadequate training facilities for the authorities.
Recent cases like Jayaraj and Bennicks Case (2020)have shown alleged police brutality on these two individuals while they were in custody for violating COVID-19 lockdown restrictions. These points out the loopholes which are present in the guidelines and are required to be overcome. DK Basu case guidelines have been effective to some extent in protecting the rights of the individuals in custody but still, there’s room for improvement.
Contribution of the 113th Law Commission Report
The 113th Law Commission’s Report focuses on the injuries suffered by individuals while in custody. This was presented after the observation of the Apex Court in State of UP vs Ram Sagar Yadav (1985). The law commission responded to the notice sent by the Apex Court by proposing the suggestions given by the 113th Law Commission Report. The incorporation of section 114B was suggested but unfortunately, it was not included in The Indian Evidence Act. With the introduction of the concept of presumptive liability for police authorities causing violence, the report had made the scope of future development impacting significantly the guidelines enunciated in the DK Basu case. Even the Apex Court has acknowledged the influence of the Law Commission’s recommendations on the guidelines.
Compensation for the families of the victims
Though the Supreme Court has stated that every state would be liable for any kind of violence in custody and adequate compensation is to be provided to them, the amount and procedure for compensation varies from state to state. Various judicial directives and legal mechanisms have been framed to deal with the compensation to be granted to the victim or his family members in case of violence in custody. The amount of compensation depends on the type and amount of injury suffered, the nature and extent of torture inflicted and other related factors. The compensation will also be based on the amount of funds required for the treatment of the injuries and rehabilitation of the victim. Other factors like the financial background of the victim will also be considered while compensating a victim of custodial violence. So the compensation varies from case to case and there is no straight jacket formulae to calculate the amount of compensation.
It’s a well-established fact that in most jurisdictions the pecuniary compensation is regarded as the best form of compensation. The State is held vicariously liable for the wrong acts committed by the public servants. We can say that the concept of strict liability is applicable here to which the defence of sovereign immunity is not available. The victim gets the right to revive the compensation from the state itself, but that shall be indemnified by the wrongdoer later.
Aftermath of DK Basu vs. State of West Bengal (1997)
The Supreme Court has laid down guidelines in a detailed manner to be followed by the Central and State Investigating security agencies in all cases of arrest and detention. While the guidelines were intended to ensure the protection of the rights of the detainees, their implementation varied across the different states over time. An Anti torture bill was discussed in 2010 in parliament but was unfortunately not passed, but the guidelines established in DK Basu vs. State of West Bengal have been integrated into the Criminal Procedure Code 1973, through the Code of Criminal Procedure (Amendment) Act 2008, effective from November 1, 2010. This amendment brought changes like allowing video conferencing technology to record evidence of witnesses and speedy trials including the establishment of special courts. We have seen changes in the pattern of arrest by the police officers and the procedure to be followed by them after arrest. These guidelines have increased awareness among law enforcement agencies. Various training programs have been initiated to educate police officers about the guidelines and ensure compliance with them. After the DK Basu case, police could be held liable for inflicting any kind of harm on the prisoners. Prisoners too have their right to life and it should be protected under Article 21 of the Constitution.
Severe issues like control of police brutality and abuse of powers and the need for enhanced safeguards to control this was the main concern in this case. The Apex Court also directed that these guidelines shall be widely circulated amongst the concerned authorities. The court also held that in case of any kind of disobedience on the part to follow the guidelines will attract punishment for contempt of court.
Analysis of the judgement
After analysing the scenario before and after the pronouncement of the guidelines and their implementation in the Indian scenario, a few positive effects, as well as drawbacks of the judgement, can be framed.
Positive Effects of the Judgement
India being a Common Law Country gives a lot of importance to precedents. A landmark judgement on this severe crime was very much required to control the abuse of powers by the police officers. The guidelines provided give a detailed answer as to the conduct of the police authorities while dealing with undertrial prisoners. Besides that the guidelines have also highlighted the rights of the individuals behind bars.
The judgement raised awareness about the torture made by policemen in custody among the law enforcement agencies as well as the public at large.
Earlier many cases of custodial violence were not reported, but after the pronouncement of the guidelines, the conduct of the police officers is properly scrutinised and any misbehaviour on their part is recorded and reported.
Drawbacks of the Judgement
Loopholes in the Legal framework like delays in the procedure of investigation have resulted in ineffective implementation of the guidelines pronounced in the judgement. Due to this delay in the legal framework, many perpetrators have escaped punishment.
The lack of literacy and resources in our country has caused insufficient awareness among the public and proper training facilities among the police authorities. Many times we have observed that a police officer is unaware of the method of treatment of prisoners similarly individuals behind bars are not aware of their rights. Many times it is also observed that neither a victim nor his family members are aware of their right to compensation for the damage suffered.
We all know that law and society are interlinked with each other. So law should also be dynamic with the changing needs of the society. The guidelines in this judgement were laid down a long time back so its update with the change in society is very much required. With the evolution of the norms of society there is a need to review and update the guidelines given. But no such updates have been observed.
Conclusion
Third degree torture by the officers could be controlled to some extent after the pronouncement of these guidelines. This judgement made it clear that failure to comply with the guidelines should, apart from rendering the official concerned liable for departmental action, also render him liable to contempt of the court and the proceedings for contempt may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
Even though we have observed a reduction in custodial deaths and violence, this problem has not been entirely eradicated as some of the guidelines are more of theoretical regulations. We have seen instances of how police torture detainees only to show their power. Famous bollywood movies like “Gangajal” and “Jai Bhim” have portrayed police brutality and custodial deaths. Police officers in rural areas should be trained about these guidelines more properly. People residing in rural areas are not so aware of their rights so officers there get a chance to overpower them. Illiteracy is always a curse on society. Besides the officers, the detainees should be also aware of their rights while they are detained. Knowing of the individual rights properly and proper implementation of the guidelines given in DK Basu would definitely help us to overcome this problem.
Frequently Asked Questions (FAQs)
What is the importance of the DK Basu Case?
The DK Basu judgement is considered to be a landmark judgement in the field of criminal jurisprudence as it has addressed grave matters like custodial violence, the rights of the arrested persons and the conduct of police officers. These three main points are discussed below.
Custodial Violence: This judgement has served as a deterrent against the violence inflicted by police officers on individuals in custody. Laying down obligations on the police authorities through these guidelines has helped to curb custodial violence to some extent.
Rights of the arrested persons: The guidelines pronounced in this judgement gave light on the fact that arrested persons do have their fundamental right to live mentioned under Article 21 of The Indian Constitution, so it’s the duty of the authorities in charge to protect the inmate’s fundamental rights. Besides that the guidelines also stipulated that the individual has a right to know the grounds of his arrest and the other information relating to his arrest. This judgement has tried to ensure the right to life, dignity and personal liberty of the arrested persons.
Conduct of police officers: This judgement through its guidelines has tried to establish procedural safeguards to prevent arbitrary and abusive powers by the police authorities.
What are the consequences for the non-compliance of the DK Basu Judgement?
The court held that non-compliance with the guidelines laid down by this case would initiate:
Departmental actions against the alleged police officer and he would also be held liable for contempt of court. This can lead to legal proceedings ultimately resulting in the conviction of the alleged police officer.
Disobedience of the guidelines by the authorities can attract reputational damage to the entire law enforcement agency. Police authorities are there for the public, any misconduct on their part can undermine the public trust in the police personnel.
The individual victim who suffered the violence or any of his family members can file a suit for compensation for the damages caused. The amount of damages varies from case to case depending on a number of factors like the amount of pain and suffering caused, the effect on the loss of livelihood of the victim, the psychological impact on the victim and various other relevant factors.
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“There is sufficiency in the world for man’s need but not for man’s greed” – Mohandas. K. Gandhi. God has designed this earth in the most perfect manner, where human life has sustained and thrived until our growing demand, population and habits have started straining this delicate creation. Everyone knows and uses the word environment every day, but how many of them add sustainability to it? With the mammoth increase in technology and production, it has become very important today to not apply brakes, maybe but to definitely shift gears to make the trajectory efficient and sustainable.
What is environmental sustainability
Environmental sustainability is reducing and efficiently consuming natural resources for a better future. As it is, we have consumed natural resources shamefully. At a very basic domestic level, anyone wasting food is part of that shameful band of humans. Traditionally, our ancestors have taught us not to waste even a single piece of rice on your plate. This thought is not about being miserly, as many perceive it. Every action, even as small as saving a grain of rice, echoes into the years to come. It’s a thought that initiates actions towards environmental sustainability. A key aspect of environmental sustainability is a future looking approach, as today’s decision does not impact nature immediately. Environmental issues faced today are the results of wrong actions taken in the past.
Take for example, the surge in solar power generation with all the enormous zero carbon energy targets set by the global powers. While it is an extremely good direction that we are moving in by generating energy from renewable sources like the sun, one must also think of what will happen to the millions and millions of solar cells being installed at the end of their life cycle. There is no clear end of life policy for these panels. Just for your information, they have a standard 25 years life cycle, with the installation taking place in 2018. Today, while I’m writing this article, there are no separate solar waste management policies laid down. If the right steps are not taken today, we are in the process of creating tonnes and tonnes of hazardous solar panel waste in the future. That will effectively lead to a renewable energy crusade done in a non-sustainable manner, leading humanity to a hornet’s nest.
In India, a country rich with diverse cultures where we see rivers as gods and goddesses , what have we done to the river Yamuna? All we witness every year is a political slug throwing contest for a period of time, with the media raising their volume in the quest for TRP and then all goes into silence. This is not a result of today’s action but unsustainable industrialization actions in the past have led to this. To add to it my ears and eyes have not come across any sustainable action being taken even today. A few good soul nature crusaders might have the will to get their hands dirty and clean it in tits and bits but that is not sustainable. That is what we call firefighting.
In recent years, we have witnessed a surge in natural disasters occurring, causing several deaths. Our once serene natural hill stations have now been converted into a money-making machine, with an exponential increase in hotels and commercial centres attracting more and more tourists. Most of the hill stations today cannot be entered without crossing congested uphill roads, most of the time for hours and hours. Clearly, in these cases, money minting behind the curtains of development has far exceeded what nature can withstand. Consumption is way more than capacity. Today, anywhere you go in the name of having some nature time, I’m sure you will see plastic waste lying all around. This is both an environmental and a cultural issue for us. While we clean our homes daily with maids and servants to help, we ensure that trash is sent out of our dwelling every day. We don’t feel and act in the same way as mother nature. This is not only an environmental crisis; it’s a cultural disconnect. It’s time for responsible tourism.
The economy and environment are codependent. Hence, development should be achieved in such a sustainable manner that we ensure that we honour our moral obligation to hand over the earth to our future generations in good shape. The United Nations Conference on Environment and Development (UNCED) defined sustainable development as “development that meets the needs of the present generation without compromising the ability of the future generation to meet their own needs.”
Types of sustainability
Broadly, there are three types of environmental sustainability: natural, economic and social.
Natural sustainability
It is the balance between extraction and consumption. The natural environment of our planet has been the foundation of human life and for that matter, all living organisms. Whatever we eat comes directly or indirectly from nature. The environment has given us the air we breathe, which is essential for our lives. We drink water and it is a gift to us from our mother nature. All these are extractions that we do from nature to fulfil our consumption requirements. Sustainability would mean we reduce our consumption by using efficient, green methods and reducing waste. Take for example, the consumption of sea fish. The fish trade is currently a $360 billion industry, as so many people rely on protein from fish. Fish has been a part of human food habits across the globe for centuries and it is not that fishing is inherently bad for the ocean. It has become bad due to overfishing. Overfishing not only means catching more fish; it also means unwanted sea life getting captured in the process. Overfishing is the reason for several species of sharks, including the great hammerhead, being pushed towards extinction. It impacts the overall food chain of the ocean by causing severe degradation to the ecosystem. Such a large industry equates to so many job creations and livelihoods but at a huge cost to the environment unless run in a sustainable manner.
Social sustainability
Social sustainability is not about extraction; rather, it is about our consumption habits, patterns, and their effect on the environment. It primarily points to the irresponsible behaviour adopted by us when we cause waste by not consuming responsibly. The point I had stated at the very beginning of this article. I know for a fact, without naming the eatery chain’s globally recognised brand, how they consume irresponsibly. One thing that is very good about them is that they have a very stringent quality check department to ensure the quality of food served to their customers, preserving their brand image. But to do that, what goes behind the scenes is the dumping of unsold items within 24 hours, which on their low sales days accounts for almost 60 percent of the food for sale. I questioned the insider, do they have a process for distributing that food to so many hungry people across the city? His answer was negative. It was a shock because the company has a strong nation builder and socially responsible image. I’m sure all of us have witnessed the same happening in our marriage functions, which is now in itself a billion dollar industry.
The number of motor vehicles has increased from 3 lakh in 1951 to 30 crore in 2019. Most families today have more than one car, so let me not go to the billionaires of India and their collection of CO2 emitters. While the sustainable method is to share transport, we have taken the approach of buying more than what is essentially needed and, in the end, polluting the air that we breathe.
Economic sustainability
The economy represents the selling and buying of natural resources to further refine, produce and reproduce final products essentially for human consumption. It would cover the entire value chain, from extracting to manufacturing to selling—the value chain that would finally monetize the natural resource. Economic sustainability is the method of reducing consumption by adopting efficient methods and reducing waste throughout the entire value chain. Consider this as per various reports in 2021, wheat and rice lost in the last 4 years could have fed 82 million Indians for a month. This loss was mainly due to transit and filching. Translate it into tax payer hard earned money and you will feel the real pain. Our country’s food storage and transit facilities need a major overhaul with sustainability in mind. Economic sustainability will begin right from a small household making the right choices while buying for its consumption to the government body, which needs to provide the necessary laws and infrastructure that will result in economic sustainability.
The pitfalls
While the introduction has given you a fair enough idea of what environmental sustainability is and why we are where we are, it is important to understand the challenges faced.
Poverty
One out of five people is ruined by poverty in developing nations. This leads to multi fold issues ranging from diseases, malnutrition, family breakdown, increase in criminal activities, increase in drug addiction, etc. In a struggle for survival, people and society at large may be forced to adopt sustainable practices. With no money in your pocket. How will you have a sustainable approach to life?
Political instability
It leads to a hindrance to economic and social stability, crashing down any efforts taken or to be taken towards sustainability. If the government is not sure about tomorrow, will it take the effort to implement a sustainable policy? Environmental policies need a continuous and consistent approach; otherwise, they’re as good as not done.
Population growth
The increase in population further puts pressure on the natural resources of the Earth. Although consumption patterns per person are more impactful than the sheer increase in population, the growth in population is still concerning. An increase in population leads to an increase in environmental waste and expands human settlement.
Deteriorating environment
With the increase in consumption, the first casualties are forest land and its natural flora and fauna. Earth’s natural resource depletion is happening at a neck breaking speed beyond sustainable capacity. Increasing pollution levels are affecting the earth’s natural habitat from all corners.
Marginalization
There is a huge disparity between countries from an economic point of view. Huge external debt, food and energy insecurity, corruption and the burden of slow economic growth cause the marginalisation of such countries. Marginalised communities have a lack of access to resources and opportunities, a lack of voice and knowledge gaps. These effects are multigenerational, leading to long term impacts.
A few silver lines
Now let us look at some of the strategies that need to be put in motion to achieve sustainability for the environment. The ultimate aim is to reduce energy use and emissions, create a sustainable and resilient community, protect our nature and environment and achieve a circular economy. Every country will have to adopt a specific strategy that is based on its own socioeconomic and cultural fabric.
Non-conventional energy source
For a sustainable future and to preserve the Earth, it is extremely important that we lean towards the non-conventional energy sources available to us in abundance. In the recent past, there has been a significant move towards solar and wind energy. The use of LPG, CNG and biogas should be adopted more and more. The concept of mini hydel plants can be very successful, especially in mountains where there are abundant small streams flowing. The research in solar energy generation is moving very fast, with not only silicon cells but also cells based on CdTe technology now available on the market with better efficiency. However, as highlighted in the beginning, merely using non-conventional sources will not solve the problem; they need to be used in a circular economic way as much as possible.
Biocomposting
To win the race for increased production, the agriculture industry has shifted completely to the use of chemicals, which have not only polluted nature but have also had side effects on our health. Compost is made of organic waste and is a powerful natural fertiliser. It is a sustainable method for every household to recycle its organic waste. There has been an upward trend visible in recent years but it is far from what is actually required. One additional benefit of composting is that it presents us with a significant decrease in the volume of waste in landfills.
Biopest control
Chemical pesticide usage has led to multiple environmental and health issues. Its adverse effects have been visible in the farm produce, resulting in water bodies being contaminated. In some cases, it has had a profound negative impact on the soil quality. To avoid this, we must move towards biopesticides. Biopesticides are derived from natural materials like plants, bacteria, and animals. More work needs to be done from research and development points to enhance their efficacy, which is less than that of traditional chemical pesticides.
Recycling
It is a close looping process of reusing used items to create new products. There are various types of recycling like organic waste recycling, electronic waste recycling, water recycling, plastic recycling and many more. However, the challenge is that recycling is a complex value chain. It involves identification, collection, sorting, and processing, which finally leads to reproduction.
Embracing the journey
This is not a task to be accomplished by one but by all. By all means, I mean we as individuals, along with the policymakers, the bureaucrats and the corporations. Small steps taken by individuals may look miniscule, but they contribute to building a sustainable environment. But when looked at collectively as a society and as a country, the benefits and dividends are unimaginable. Just imagine you and your local population dumping garbage every day, and then imagine that same population embracing house composting. Such a massive reduction in garbage dumping pressure on your city’s environment while improving your home garden using 100 percent organic fertiliser.
Robust ecological policies, just on paper, with accountability and measurability, are the need of the hour. There have been multiple reported cases where government bodies designed to protect the environment have failed miserably. For example, responding to a lawsuit filed by non-governmental organisation (NGO) Samaj Parivartana Samudaya in 2011, the SC suspended iron-ore mining in Karnataka’s Bellary district (Samaj Parivartana Samudaya and Ors. vs. State of Karnataka and Ors. (2012)). What is seen here is that the honourable Supreme Court had to intervene because, in spite of the Lokayukta report documenting several mines operating without environmental and forest clearances, the MoEFCC (Ministry of Environment, forest and Climate Change) did not take any action. This is just one of the many such failures on the part of the governing bodies’ failure or keeping eyes closed stance adopted. To add to this, the MoEFCC has brought in the Forest (Conservation) Rules of 2022 under the 1980 Forest Conservation Act, which effectively bypasses the previously required consent of the Gram Sabha (elected village councils). With this new rule, the forest dwelling communities will have no say in deforestation projects pertaining to their areas.
However, there are many success stories too. From a global point of view, the Montreal Protocol has been successful in reversing the depletion of the ozone layer. It is projected that the ozone layer will reach its 1980 levels by the mid-2030s. In India, there have also been many successful efforts, one of which is the return of tigers. At one point in time, tigers were being pushed towards extinction. But with sustained efforts, their population has been seeing an upward trend. Another success story goes back to the 1970’s and is popularly known as the ‘Chipko Movement’. This environmental non-violent movement originated in modern day Uttarakhand in the early 1970’s. It was aimed at protecting trees from logging and deforestation. The protesters would form human chains and hug the tree to stop contractors from cutting the tree. The movement garnered quite a few successes, bringing in a temporary ban on tree cutting in the Himalayas. It is a powerful reminder of the importance of protecting jungles and how even a small group of people can make significant changes.
Corporates big or small need to imbibe environmental corporatism, with their mantra being reduce, reuse, and recycle. They should transfer accountability to non-traditional stakeholders more and more. They must continuously identify each corner of their manufacturing and operational processes to look for opportunities to apply the above mantra. Like all business parameters are reported and reviewed with key performance parameters attached, environmental sustainability should also be driven. The good sign is that with an increased level of education and awareness and an increase in per capita income, consumers today are ready to pay more for environmentally sustainable products.
Conclusion
Finally, I believe culture and education are the keys to environmental sustainability. We all must have heard the saying “like father, like son.” Our future generation will be what they see and learn from us and our actions. Education today should put tremendous focus on the importance of environmental sustainability and the inexorable and disastrous implications of not doing so. It should not remain on a few pages of a particular subject; rather, it should be a subject. A sustainable environment would lead to stability, which would bring in investment and lead to prosperity.
Let’s rethink our relationship with nature’s resources, starting with the leftover rice on our plate.
While reading or drafting agreements or contracts, have you ever witnessed that there are some clauses that are standard while others specify the actions of parties and are different in every agreement or contract? These are boilerplate and operational clauses, respectively. Now, the question arises, why are these clauses necessary? The answer to this question is because of their intent. There is a common intent among all these clauses, which is ‘clarification’.
So, let’s discuss the practical insights of these clauses further in this article.
Operative clauses
Operative clauses are the ones that identify actions, i.e., what is to be done or what is not to be done. These are the heart of a contract, as they outline the rights, obligations and responsibilities of the contracting parties and specify the actions that parties must take to fulfil their contractual obligations. They set forth the precise actions that must be undertaken to fulfil the contractual obligations. These clauses are essentially the “to-do” or “not-to-do” list of the contract. They provide the framework for the performance of the contract and establish the expectations of the parties.
The significance of operative clauses cannot be overstated. They create legally binding commitments that the parties are required to adhere to. These clauses define the scope of the contract, specify the terms of payment, outline the delivery or service requirements, and address any other essential elements relevant to the agreement. In essence, the operative clauses are the heart of the contract, giving it purpose and substance.
When drafting operative clauses, precision and clarity are most important. Ambiguous or imprecise language can lead to disputes and misunderstandings down the line. It is crucial to ensure that the actions to be performed or avoided are clearly defined, leaving no room for interpretation. Additionally, the operative clauses should be consistent with the overall intent and purpose of the contract, aligning with the recitals and boilerplate provisions.
By carefully crafting operative clauses, parties can establish a solid foundation for their contractual relationship. These clauses serve as the compass guiding the parties’ actions and responsibilities throughout the duration of the contract. They provide a clear roadmap for the performance and fulfilment of contractual obligations, ultimately facilitating a successful and harmonious business relationship.
Types of operative clauses
Operative Clauses are divided into four categories
Essential operative clauses
As the name suggests, these are the essential clauses in operative clauses that form the core of a contract’s obligations. These clauses ensure to clearly define the purpose of contract and encompass provisions related to essential aspects of work like scope of work, performance standards, deliverables, etc.
Typically, essential clauses cover a number of key areas, including but not limited to:
Scope of work: This clause outlines the specific tasks, activities, and services to be performed under the contract. It defines the boundaries of the project, clearly delineating what is expected from the contractor or service provider.
Performance standards: These clauses set forth the specific criteria that must be met in terms of quality, accuracy, and timeliness. They establish benchmarks against which the contractor’s performance can be evaluated and measured.
Deliverables: Essential clauses often specify the deliverables to be provided as part of the contract. This includes tangible items such as products, reports, or software, as well as intangible outputs like services or outcomes achieved.
Acceptance criteria: Acceptance criteria define the conditions under which the deliverables or services provided by the contractor will be deemed satisfactory and accepted by the client or organisation.
Payment terms: These clauses outline the terms and conditions related to payment, including the amount, method, and schedule of payments to be made.
By incorporating essential clauses into a contract, parties can effectively communicate their intentions, reduce uncertainties, and minimise the potential for misunderstandings. These clauses serve as a solid foundation upon which the entire contract is built, ensuring a clear and legally binding agreement between the parties involved.
Performance related operative clauses
In every contract, it is important to determine the schedules, milestones, quality, and benchmarks to articulate the performance of each party and performance-related operational clauses deal with the same. These clauses provided a basis for evaluating performance, thus safeguarding the interests of both parties.
Performance-related operational clauses address various aspects that are critical to the successful execution of the contract. These clauses may include provisions related to the following:
Reporting and communication: These clauses outline the specific reporting requirements and communication channels to be used by the parties involved. They ensure that both parties are kept informed about the progress, issues, and any changes related to the contract.
Inspection and testing: These clauses specify the procedures and criteria for inspecting and testing the deliverables or services provided under the contract. They ensure that the deliverables meet the agreed-upon quality standards and specifications.
Warranties and guarantees: These clauses provide assurance from one party to another regarding the quality, performance, or specific characteristics of the deliverables or services. They protect the interests of the party receiving the deliverables by ensuring that they meet the specified standards.
Remedies and penalties: These clauses outline the consequences and actions that may be taken in the event of a party failing to meet the performance standards or breaching the terms of the contract. They provide a mechanism for seeking remedies or imposing penalties to safeguard the interests of the non-breaching party.
Time-sensitive operative clauses
‘Time is an essence’, is important to take into account while drafting clauses. So, time-sensitive operative clauses contribute to the smooth execution of a contract by establishing timeframes and deadlines to fulfil the contractual obligations and allowing for remedies in case of delays or breaches.
Dispute resolution operative clauses
Defining the dispute resolution mechanism in the contract helps parties in case a dispute arises in the future. The dispute resolution operative clauses serve as a vital tool for preventing and managing disputes. They define whether the parties will opt for litigation or alternative dispute resolution like arbitration, mediation, negotiation, etc.
Important operative clauses
Some of the important operative clauses are:
Service levels clause
Service levels address the performance level of services. Performance here indicates uptime, latency, etc. and can be present in a cloud service or an IT professional services agreement. Service levels would either address the specifications in a separate document or incorporate them into a service level agreement. Its major sub-clauses are:
Response, repair and remedy- It acknowledges service requests to fix or provide credits or other resolutions. Response refers to email, telephone or in person acknowledgement of a support request, and remedy refers to the solution. Repair is the process by which a remedy will be performed.
Material breach and termination- It protects the vendor from being outright terminated and remedies the breach.
Revision of service levels- It should be mutual.
Also, in this clause, errors and targets should be clearly defined. Error means any failure of the system to perform as required in technical specifications and target refers to the minimum performance level.
Confidentiality clause
To protect Intellectual Property, confidentiality clauses play a very important role because they protect know-how, trade secrets, sensitive business information, manuals, pricing information, etc. It puts restrictions on its use, which means no one will be allowed to pass the information.
Data management and security clause
The data management and security clause is a very important clause in a contract as it states that the vendor cannot access, process, or otherwise use customer data other than as necessary to facilitate the services and shall manage and protect the data of its customers. Also, only the customer retains all rights, titles, and interests in and to customer data.
Disaster recovery clause
A disaster recovery clause in any contract is a must. It is the creation of backup data so that, in case a site experiences a crash, backup data can be used. The disaster recovery plan might be anything from a set of steps for getting a crashed system running to a whole backup data centre ready to take over on a minute’s notice.
Schedule and milestone clause
Schedule and Milestone Clause describe the ‘When’ scenario in a contract and help remove uncertainty with regards to deadlines. If it provides measurability for assessing completion/compliance, you would be held liable. Fixing the schedule and milestone clause is a win-win situation for both the vendor and the customer. While a vendor can get his work done on time by specifying a schedule clause, the customer can get his payment on the completion of each milestone. The essence of this clause is that if for any reason, the vendor is not able to deliver the deliverables on time or the technical specifications are not up to par, the customer can sue the vendor for such breaches and will not be liable to pay him further.
Delivery, acceptance and rejection clause
Let’s think of a scenario where the parties haven’t laid down or clarified to each other the delivery of the goods/product, as to when the party will deliver the product (deadline), at which location, etc. What will happen? It will result in utter chaos. So, the acceptance and rejection clause gives the authority to accept and reject the delivered products/goods under certain conditions, like what condition the goods should be in, Time and place of delivery, Quality, Time-bound delivery, etc. It throws light on the ‘How’ scenario connecting the ‘When’ scenario.
Warranty clause
A warranty is a clause that can never be neglected. Generally speaking, whenever we buy a new product, the first thing we ask is what its warranty period is. Therefore, every contract must have a warrant clause because it guarantees that something is true or will happen. It is a stipulation that provides that if the guaranteed fact doesn’t turn out to be true, the promisor will be on the hook for some remedy. Warranties shift legal risk and can cover any topic, and they can come from either the customer or the vendor, though warranties from vendors come more often.
Indemnity clause
In the Indemnity Clause, two terms are needed to remember- Indemnifying the indemnifying party and the indemnified party, in which the indemnifying party demands payment from the indemnified party, which the latter is required to pay. In short, one party needs to take responsibility for the other party. Now, that other party can be the opposite party or commonly, it is a third-party.
For instance, the customer risks a patent, copyright, or trade secret claim or lawsuit by using the vendor’s technology, and the vendor/ indemnitor promises to protect the customer against such a claim.
Mutual Indemnity
In mutual indemnity, each party promises to protect the other against the same type of claim. For instance, in data breach indemnity, each party promises to provide protection against claims related to data breaches that party caused or breaches it is accused of causing.
In an IP indemnity, each party promises to provide protection against infringement claims related to technology or content that the other party provided.
Limitation of liability clause
Have you ever seen a clause in an agreement that is written in caps and bold? That’s the limitation of the liability clause. The limitation of liability clause says that if one party injures the other, it is not liable for the full damages. This clause can be a bit hard to swallow. In fact, courts often will not enforce the clause if they think the customer didn’t grasp its importance, particularly if the customer is a consumer. That’s why the limitation of liability usually stands out, printed in capital letters.
But the vendor wants to establish that if the customer didn’t notice the clause or recognise its importance, it is the customer’s own fault.
Term and termination clause
A term and termination clause describes when a contract or agreement can be terminated and under what conditions. The usual cause for termination is breach of contract but the breach must be material. That means a minor breach, like delivering software a day late, will not authorise termination. Often, terminations for breach clauses require advance notice, usually 30 days, and an opportunity to cure.
But some contracts allow immediate termination without an opportunity to cure, for particularly important deadlines, usually through terms saying “time is of the essence” for that particular performance. Nevertheless, termination triggers certain clauses. They go into effect the moment the contract terminates. Termination can trigger a variety of obligations. For instance, in some contracts, each party should promise to return the other’s property upon termination or shortly after.
Payment mechanisms clause
In a software development agreement, payments can be made based on achieving different milestones, whereas in some cases, there may be stricter clauses stating that ownership of the software will only be transferred to the client once full payment is received. If payment is not made, the vendor is not obligated to transfer ownership of the software. In an outsourcing agreement, the payment structure can vary. It can be a fixed fee, a payment per transaction, or based on the number of resources dedicated by the service provider. The chosen payment model depends on the business’s needs and the type of service provided. In some cases, a profit-sharing approach may be used if the outsourced process is crucial for the customer’s overall business success.
Boilerplate clauses
Boilerplate clauses are the standard or general clauses, which are non-negotiable and can be found in various documents. These are usually stated at the end of an agreement, inviting very limited or no attention. The reason that these clauses go without negotiation is because they have been intact for such a long time that even if one party tries to change them, the other party gets sceptical of losing something important.
Important boilerplate clauses
Some important boilerplate clauses are:
Entire agreement
The agreement clause constitutes the entire agreement, along with exhibits, schedules, annexures, and attachments. Since the parties exchange a lot of pre-contractual statements that do not form part of the agreement, the entire agreement clause ensures that the parties have certainty of the agreed terms and conditions and limits the outside of the agreement dealings. This clause supersedes any prior discussions, understanding or agreements between the parties.
Notice
The legal vocabulary of communication is notice. The Notice Clause provides the mechanism by which communications are to take place between the parties or how the notices are to be served. It is pertinent to note here that the notice shall be in writing and sent to the proper address of the party. Also, compliance with the notice is a must, the absence of which negatively affects the enforceability or validity of the notice.
Force majeure
Before going ahead with the force majeure clause, let’s answer a simple yet complicated question.
What if a party is not able to comply with the contract due to a flood, war, strike or lockout? Will that party be liable for breach of contract?
The answer is no; all such events, including acts of God, invasion, armed conflict, earthquakes, lighting, cyclones, etc., are part of the force majeure clause. Therefore, the Force Majeure Clause provides immunity to the parties from performing any contractual obligation, thereby preventing them from any liability that could arise from the non-performance of such events that are beyond the control of the parties. Although its detailing has to be done by the parties themselves since this clause has not been explained anywhere in the law.
Severability
We all might have seen the parties arguing in court on the enforceability of a contract, claiming one of its clauses is invalid, prohibited or unenforceable by the changes or amendments in the law.
Therefore, to counter such a situation, the parties add a severability clause in the contract, which means that in case of any question about the invalidity, prohibition or enforceability of any provision, the enforceability of the rest of the contract will remain unaltered.
Reliance or no reliance
Reliance or no-reliance clause refers to the binding or non-binding of the parties. This clause operates depending upon the nature and circumstances of the agreement in the respective fields of the parties and works in a similar manner as an Entire Agreement Clause, so that parties do not rely on what’s written in the agreement only and don’t go beyond the scope of the same.
No waiver
This clause specifies that there should be no waiver due to a material breach of technical or functional specifications outright; instead, the defaulting party should be given some time to cure the breach.
Governing law and jurisdiction
To avoid any dispute in the future, the parties clearly state the law by which they will be governed and the jurisdiction of the court. For instance, parties use the arbitration clause to save time and money on litigation expenses.
Also, between cross-border transactions, let’s say between India and the USA, it would be convenient to decide first by which law they will be governed and whether the jurisdiction will be the Indian or USA Court.
Conclusion
The operative and boilerplate clauses play a significant role in the drafting of a contract by taking into account all the possibilities that are taking place or could take place amongst the parties. Further, this article discussed which clauses can be standard and which are to be put in place as per the needs of the parties.
Drugs are substances that are used to treat illness, alter perception, change mood or change behaviour. Here we will be talking about the drugs that are abused by people for recreational use and can cause addiction. Globally, drugs have been used to get euphoria throughout history and have been an integral part of the celebration. Some countries and communities have a culture of using drugs as a main party ingredient or as a welcoming drink, like the Marwari community, which uses opium as a welcome drink and at functions. The native Indians used cannabis for medicinal and spiritual purposes. With colonialism, the colonists forced people to grow crops like opium, coca, etc., but at the same time they banned drugs in the countries and hence started a war on drugs by making legislation like the Dangerous Drugs Act, 1930. But now, in the 21st century, many countries like the USA, Canada, EU, etc. are legalising and decriminalising drugs while at the same time suffering from the bad effects of drugs, like an increase in crimes against society and drug users becoming a burden on the state. But still, decriminalisation of drugs is rapidly growing, hence making drugs a necessary evil and the world a new world of and for drugs.
Types of drugs
There are 7 types of drugs based on their effects. Each type of drug has its own set of characteristics and dangers.
Stimulants
Stimulants increase activity in the central nervous system. The increased brain activity can make you feel like you are speeding up. Stimulants can increase your heart rate, blood pressure and level of alertness. These drugs typically come in pill form. However, they can also be eaten, drunk, or snorted. For example, Ritalin, cocaine, ecstasy, and synthetic marijuana
Associated risks: Students or athletes can abuse these substances to improve their performances. When abused, stimulants can lead to a variety of unwanted consequences. These effects include paranoia anxiety psychosis depression stroke seizures high body temperature, etc.
Opioids
Opioids are powerful painkillers that can give you a sense of euphoria. Doctors typically prescribe opioids to people experiencing severe pain. Opioids can be injected and consumed as pills. A few examples are heroin morphine opium norco, etc.
Associated risks- Opioid abuse can ruin a person’s life. Because it’s highly addictive, it can get a person addicted in just a few days. Some symptoms include nausea, vomiting, diarrhoea, anxiety and an inability to sleep.
Depressants
Depressants don’t make you feel depressed. Like stimulants, they affect the central nervous system and slow down the messages between the brain and the body. Some examples of depressants include barbiturates, alcohol, Xanax, and valium.
Associated risks: Abusing depressants can cause issues both long and short-term, including confusion Dizziness, extreme sleepiness, slowed heart rate, and difficulty speaking.
Hallucinogens
Hallucinogens work by disrupting brain activity. As the name implies, the drug affects a person’s sensory perception, causing hallucinations. Some examples are psilocybin peyote LSD.
Associated risks: Hallucinogen fears distorted cognition psychosis, etc.
Dissociatives
Dissociative drugs work by interfering with the brain’s receptors for glutamate. This chemical plays a significant role in cognition, emotionality and pain perception.
These drugs can be taken as liquids, powders, gases, or solids. Some examples of dissociative drugs include ketamine, DXM, and PCP.
Associated risks: These drugs give the abuser a false sense of invincibility and can cause long-lasting effects along with memory loss speech difficulties suicidal thoughts social withdrawal numbness, etc.
Inhalants
Inhalants are volatile chemical substances that turn into vapours and, when inhaled, cause mind-altering effects and euphoria. These are mostly made up of everyday household items Some examples of inhalants are marker paint, gasoline, nitrous oxide aerosol sprays, etc.
Associated risks: They can have devastating immediate and long term effects, including smell loss, nosebleed weakness, brain damage, increased heart rate, etc.
Cannabis
Cannabis or marijuana, is a natural psychoactive drug derived from the cannabis plant. It can be smoked, eaten or inhaled. A few sources of cannabis are marijuana leaves, hashish, hash oil, sativex, etc.
Associated risks: Cannabis is listed as a Schedule 1 drug, which means it is highly addictive. Abusing this substance leads to both short and long-term effects. Including low sperm count, sedation, lower immunity, chronic anxiety, etc.
History of drugs
The history of drug or substance use goes way back in time. Contrary to what people generally think, some scientist believe that the relationship between humans and alcohol is about 100,000 years old, as theoretically, they believe that palaeolithic humans and their ancestors know that leaving fruits in jars for a period will make alcohol as early as 25000 BCE the Venus of Laussel, found in caves in France, is a palaeolithic age carving showcasing a woman holding a horn shape jar, which inferred drinking in horn jars. Besides that, hallucinogens have been found in caves in Peru dating back to 8600 BCE -5600 BCE. Evidence of the earliest production of wine was found in China, dating to 7000 BCE. Statues of giant mushrooms found in El Salvador date back to 1000 BCE. Burnt cannabis seeds are found in graves in
India and Serbia date back to 500 BCE. The cultivation of opium was found in Mesopotamia in the 4th millennium BCE, then coffee consumption began in Ethiopia and later spread to the Islamic world in the 11th century. In the 15th century, tobacco smoking and chewing became popular in Europe. Coca leaves were explored in the 16th century, in the 1950s and 1960s, with the discovery and use of LSD and other psychedelics. Late 20th-century crack cocaine epidemics in the USA and, in the 21st century, synthetic drugs like spice/k2 etc. are emerging.
Social impacts of drug or substance abuse
The abuse of drugs leads to addiction to them. Addiction is a brain disease, and it’s not a simple disease but rather a complex one that not only damages an individual’s physical and mental health but also damages his/her social status and also impacts the lives of his/her peers, friends, family and the society in which he/she is living. Substance abuse has affected nearly all aspects of life, including communities, homes, schools, workplaces, jails, etc.
To understand the social impacts of drug abuse, it’s important to know why people abuse drugs. A deeper understanding of the motivation and causes behind drug abuse can help in framing better policies for the problem.
Why do people abuse drugs
Addiction is not a choice. Many who develop this disorder come as a result of seeking a solution to discomfort, as many of the drugs, such as opioids, directly affect the central nervous system, giving a euphoric feeling.
Some other factors that make people abuse drugs are:
Using a substance in peer pressure or out of fear of missing out
Using a substance to improve performance and remove anxiety and nervousness
Using a substance to relieve stress
Using a substance to improve mood and feel better physically, mentally or both.
There are other reasons as well for people leaning towards drug abuse, such as poverty. Poverty is one of the strong reasons people get addicted. In a report, it was shown that opioid addiction in 17 states is more prevalent in economically disadvantaged zip codes. Another big reason is that homelessness also increases the risk of drug addiction. Some social stigma also plays an important role in drug addiction, such as racism and stigma related to certain appearances, certain backgrounds, etc. When people belong to these particular areas or communities and face social distrust for them, they tend to submit to drug addiction.
Social effects of drug abuse
The abuse of substances not only affects a person’s physical or mental health but also has serious negative social consequences that are:
Short-term effects of drugs – people suffering from addiction can notice a change in their behaviour as the disease progresses, which may have short-term negative effects.
Long-term effects of drugs – long-term effects of drugs can be seen after long chronic use of drugs. When the body falls into drug dependence, one can observe a drastic change in one’s personality that can be called a long-term effect of drugs that causes harm to oneself or causes harm to another person due to unemployment.
Some other social effects include:
Homelessness: Spending most of your money on drugs will eventually lead you to be homeless.
End of relationship: It is seen that people engaged in substance abuse often end their relationship with their loved ones
Violence: It is seen that people abusing drugs are often violent and can cause harm to themselves and others
Legal issues: Buying, selling or consuming unprescribed or illegal drugs can also bring legal issues to your door, and you can face prosecution.
Corruption: Drug cartels and drug lords also buy off the police and prosecutors to get away with a law that: also increases corruption in the country.
Sexual effects: Illegal drugs are also perceived as sexual stimulants and aphrodisiacs. Drugs like marijuana can increase the sexual mood, which leads to sex-related crimes like rape. Also, sexual health is compromised by substance use diseases like AIDS and other infectious STDs that are spread among drug addicts.
Signs of drug abuse
Signs of drug abuse are:
Neglect in grooming
Changes in appetite and sleep patterns
Sudden weight loss or weight gain
Mood swings and unnecessary fear
Secret behaviour
Abnormality of pupil size or bloodshot eyes
Hyperactivity, etc.
Drugs and crime
Drugs and crime go hand in hand with the increase in drug abuse and crime drugs are the main reason for most of the crime happening on the streets crime are two types one is organised crime other is unorganised. Unorganised crime is referred to as a crime carried out by individuals or small groups without any hierarchy or formal structure for example, petty theft or sometimes murder. Most of the people engaged in crimes like that are drug abusers. According to a study,around 65% of people in jail in the USA have a substance use disorder [SUD]. Drug trafficking alone is the most widespread and lucrative organised crime in the USA, which constitutes 40% of the estimated annual income of as much as 110 billion dollars. Most of the drug related organised crime is done by cartels around the world, some of them also engage in other crimes such as human trafficking, prostitution extortion murder, etc. Some terrorist organisations, like theTaliban, are also engaged in drug trafficking. The history of drug trafficking in the USA started at least in the 1800s with the opium influx from China. In the 20th century, the USA saw the trafficking of marijuana and cocaine in the 1980s. Drug-related crimes are growing and becoming more violent day by day. For instance, in a small, peaceful country like Ecuador, 210 tonnes of drugs were seized and 4500 killings were recorded last year. Drug cartels are recruiting children in Ecuador. For estimating the cost of drug crimes, let’s take the example of England. Examples of users needing £15,000 to £30,000 a year to fund drug habits have often been given. To make such amounts of money from stolen goods, police often suggest multiplying by three, on the basis that stolen goods will fetch about one-third of their normal value. There are estimates of around 306,000 heroin and/or crack users in England, with around 200,000 of them in treatment in any one year. That is a lot of theft, burglary, fraud, or shoplifting if all are stealing to pay for things. This has led some people to suggest that up to half of all acquisitive crime is drug-related and that the market value of goods stolen involved could be between £2-2.5 billion each year. With these frightening stats, we can understand how dangerous the situation is.
How the war on drugs increases violence and rewards the cartels
In 1971, the United States of America adopted a national policy to fight drugs and declared a war on drugs, which failed to curb the drug-related violence in the USA and Latin America. The death toll is rising, continuing in Mexico, which has claimed more than 35,000 lives since December 2006. In another report, it was stated that over 30,000 people have died each year since 2018 in Mexico. Government policies targeting drug trafficking have inadvertently fueled violence, as crackdowns on drug operations can lead to increased violence. Government seizures of illegal drugs may reduce supply, but they also drive up prices, increasing profits for drug cartels and leading to conflicts over higher profits. Arresting or killing drug kingpins can make them more impatient and less concerned about long-term profits, leading to increased conflict and violence within cartels. The research showed that the government should reexamine the policies to cope with the problem.
Economics of drugs
Understanding the economics of drugs is very important to understand the importance and gravity of the problem. RAND Corporation found that drug abusers bought $100 billion worth of drugs annually. Only opioid abuse, overdose, and treatment costs reached $75 billion in the US in 2013. National drug control agencies are also demanding $46.1 billion in total to support drug treatment and prevention. Also, it is evident that the drugs are inflation-proof as no matter what the price of drugs is, people who are addicted to them are going to buy them no matter what. Also, the margins on drugs are very high. Also, with time, the drug trafficking industry evolved using the latest technology. Now, drug cartels are using decentralised cryptocurrencies like bitcoin; annually, $76 billion worth of transactions are made with cryptocurrencies. Drug cartels are now financing drug marketplaces on the dark web and also supplying free samples, running a properly organised market place on the dark web for illegal drug trafficking, making it more concerning for the governments of countries around the globe. With those numbers of drug sales, we can now estimate how big this industry is.
Drug abuse by celebrities, performers, and athletes
Drug abuse in pop culture is a serious problem, glamourization of drugs by the media only adds to the problem of drugs in society as people tend to make media personalities their ideals and tend to follow everything they do in their movies and songs. Several movies and songs glorify drug abuse. Some examples are Wolf of Wall Street, Scarface, etc., where drug use is glorified by the hero of the movie. Various artists, including Daniel Radcliffe [Harry Potter], are also suffering from substance abuse disorder. These instances and glorification of drugs influence children and teens, as well as some adults, to move towards the drug, and they start to use drugs to look cool like their heroes, gradually binding themselves into the darkness of substance abuse disorder.
Policies for drugs around the globe
The world has a split view on drugs. Some countries are moving towards the legalisation of drugs, some are making stricter laws for drug abuse or selling; and some are somewhere in between strict laws and legislation that decriminalises drugs. The question is why decriminalise or legalise drugs? The demand for decriminalising started when people started thinking that the war on drugs was a failure and in a 2021 poll majority of 66% of people voted to decriminalise drugs instead of the opposite; they thought that previous policies were a failure and should focus on the health approach the reasoning behind that is the money spent on catching drug offender and then punishing them should rather be spent on volunteer rehabilitation, drug education, etc. Oregon became the first state to decriminalise hard drugs and the Netherlands was the first country to completely decriminalise the sale and use of cannabis. Countries like Switzerland have safe rooms sponsored by the government where heroin addicts can have a dose in a safe environment with safe needles. Also, Switzerland is considering legalising cocaine for recreational use to make the country’s rampant drug use safer.
India
In India, the laws regulating the use of drugs are multifaceted and stringent, aiming to maintain public health and safety. These laws are primarily governed by the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) of 1985, which classifies and controls various substances, their production, possession, cultivation, sale, purchase, and consumption.
Classification of drugs:
The NDPS Act categorises drugs into five schedules based on their potential for abuse or dependence:
Schedule I: Includes substances with high potential for abuse and no accepted medical use, such as heroin, LSD, and cocaine.
Schedule II: Contains drugs with high potential for abuse and limited accepted medical use, such as morphine and pethidine.
Schedule III: Includes drugs with moderate potential for abuse and some accepted medical use, such as codeine and buprenorphine.
Schedule IV: Consists of drugs with low potential for abuse and primarily used for scientific or industrial purposes, such as dextromethorphan and ephedrine.
Schedule V: Includes drugs with low potential for abuse and minimal risk of physical or psychological dependence, such as dextromethorphan-containing cough syrups.
Controlled substances:
The NDPS Act strictly regulates the production, possession, and distribution of controlled substances, which include drugs listed in Schedules I to IV.
Manufacturing and distribution of these substances require a licence from the Central Government, and production is restricted to authorised facilities.
Penalties for unauthorised manufacture or distribution can be severe, including imprisonment and fines.
Restrictions on possession and consumption:
The NDPS Act prohibits the possession, consumption, and sale of controlled substances without a valid prescription from a registered medical practitioner.
It also restricts the quantity of certain drugs that can be prescribed and dispensed.
Violation of these provisions can result in legal consequences, including arrest, prosecution, and punishment.
Drug trafficking and illicit drug trade:
The NDPS Act addresses drug trafficking and the illicit drug trade by defining offences such as illegal import, export, production, and sale of controlled substances.
It empowers law enforcement agencies to investigate, arrest, and prosecute individuals involved in drug trafficking activities.
Severe penalties are prescribed for drug trafficking offences, including imprisonment for long terms and substantial fines.
Drug abuse prevention and treatment:
The NDPS Act also recognises the need for drug abuse prevention and treatment. It provides a legal framework for establishing drug de-addiction centres and rehabilitation programmes.
The government has undertaken various initiatives, such as the National Drug Demand Reduction Programme, to create awareness about drug abuse, promote prevention measures, and provide treatment and rehabilitation services to individuals struggling with drug addiction.
Drug law enforcement:
The NDPS Act is enforced by various law enforcement agencies, including the Central Bureau of Narcotics (CBN) and the Narcotics Control Bureau (NCB).
These agencies conduct investigations, seize illegal drugs, and apprehend individuals involved in drug trafficking and abuse.
They also work in collaboration with international organisations and other countries to combat drug trafficking and ensure effective drug law enforcement.
Overall, the laws on the usage of drugs in India are aimed at preventing drug abuse, controlling the supply and distribution of controlled substances, combating drug trafficking, and providing a framework for drug abuse prevention and treatment. These laws are essential in safeguarding public health, reducing drug-related crimes, and promoting the welfare of individuals and society as a whole.
Legalising cannabis
Another surprising thing trending on the internet is the reasons people are giving to legalise cannabis. From economic reasons to portraying it as a step towards ending racism. Here are some reasons why cannabis must be legalised.
Economic burden
For decades, millions of Americans were put behind bars and arrested for marijuana possession—more than murder, rape, robbery, and aggravated assault combined. Prohibition also hurts the economy in terms of lost wages and also affects the future of people, as Americans with criminal records find it hard to get the jobs and education they want.
For the environment
Legalisation of cannabis can increase biodiversity and if grown illegally, it will be grown in environment-damaging ways. But if legalised, the precious seed of marijuana can be saved, which will increase biodiversity and be beneficial for the environment.
Legalisation for public health
The legalisation of marijuana will improve the health sector as well because of its medicinal properties, as it is also beneficial for many syndromes like PTSD. States that legalised cannabis also recorded fewer opioid overdose deaths and people will not use hard drugs.
For revenue
Legalisation of cannabis will generate revenue from taxes for governments. The states that have legalised marijuana have earned millions of dollars from taxes, with California generating a whopping 1.2 billion from marijuana taxes. It will also generate jobs and employment.
For racial justice
The legalisation of marijuana also has its roots in racism, as marijuana prohibition was done because of anti-Mexican sentiments. With the Mexican Revolution in 1910, the government started to regulate and make strict laws on marijuana, gradually outlawing it. Also, people of colour, like black Americans, have a higher chance of getting arrested in cases of marijuana possession. People think legalising cannabis will stop people stereotyping people of colour as criminals and police will not regularly search their communities for marijuana.
Cannabis is safer than alcohol
Research has shown that cannabis is safer than alcohol as it has less potential for addiction. People die more because of alcohol than because of cannabis. More than 50,000 people die because of alcohol.
Global stance on hard drugs
Global stances on hard drugs are split. Some countries have a strict prohibition approach, while others are taking a liberal approach to it. Countries like the Philippines have the death penalty for drug trafficking, and countries like Switzerland legalize them for recreational use.
The emergence of new deadly hard drugs
With countries having liberal approaches towards hard drugs and decriminalising and legalising them for recreational use, the emerging of new deadly and highly addictive drugs hitting the streets of countries like the USA is catching them completely off guard. Drugs like xylazine or tranq are becoming a threat to the country because the drug is highly addictive and “just eats the skin away,” experts say, making it a threat to the nation. Other new drugs in this segment are carfentanil, which is 10,000 times more potent than morphine and synthetic cannabis, which is a fake weed more dangerous than its leafy counterpart. Drugs like xylazine and flakka are also called zombie drugs as they lead to necrosis and then painful death.
Conclusion
As we have established, the problem of drugs is not new; drugs were an integral part of society and developed along with humans, from alcohol in the Palaeolithic age to flakka in the modern day. There were times the drugs were considered some potion from the gods in some ancient cultures, then they became social evil and further transitioned into an essential element for happiness and an important ingredient of modern-day parties. Now drugs are a new global trendsetter as many protests are going on for decriminalisation and legalisation of drugs, changing the point of view and portraying them in a new picture, making cannabis safer than alcohol, using hard drugs is liberal, etc. Economics say it’s a good approach as it will bring revenue to the nation, generate jobs, and make everyone happy, but the other side of the coin is that people are becoming addicts and losing it. New and more dangerous drugs are introduced by the cartels frequently, violence is increasing, children are joining cartels and crime is still there. By legalising it, the government is making it easier for the cartels to supply drugs. In the end, I’ll leave it to you to decide whether you like this new world of drugs or not.
If you or anyone you love is suffering from a problem of drug abuse or substance abuse disorder, you can give a call to the national helpline at 1800-11-0031 for assistance from the government.
This article has been written by Shahela. This article seeks to analyse, through the case of Sakiri Vasu v. State of U.P., the role and power of the police under Section 154 of the CrPC and the power of the Magistrate to oversee the investigation under Section 156 of the CrPC in detail. Further, the article deals with the laws and precedents discussed in this case, along with the doctrines of implied power and updating the construction of statutes. Section 482 of the CrPC is also discussed to analyse the power of the high court to entertain the writ petition and its maintainability.
Table of Contents
Introduction
The case of Sakiri vasu v. State of UP and others (2007) is one of the remarkable judgments of the Supreme Court of India. It deals with and discusses the importance of Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as the CrPC) and the powers of the Judicial Magistrate to ensure a proper investigation of the matter. The provisions of Section 156(3) of the CrPC have an extremely wide scope. During this case, the Supreme Court under Section 482 of the CrPC directed the Magistrate by empowering him under Section 156(3) of the CrPC to instruct the police for the proper investigation and for the registration of an FIR, which was not done in this case previously.
According to Section 154(1) of CrPC, if any information of cognizable offence is given to a police officer orally in the police station, then that police officer is accountable for writing down the information by himself or under his direction by any of his subordinates, which will be signed by himself/herself along with the person who gives the information. After that, the complaint will be forwarded to the Superintendent of Police (SP) under Section 154(3) of the CrPC. The SP, upon receiving the complaint in writing, will check the genuinity of the complaint, and if the complaint discloses the attributes of the cognizable offence, then the investigation will be made by himself or the direction for the investigation will be given by him to any of his subordinates in the manner laid down under CrPC. The Judicial Magistrate, under Section 156(3) of the CrPC, is enshrined with the power to look into the cognizable cases where directions for investigation are given by the Magistrate to the police under Section 190 of the CrPC.
The above-mentioned procedure is available in the CrPC to the person who made the complaint for any cognizable offence for the proper investigation of the matter by the police as directed by the Judicial Magistrate. First, there’s the filing of the complaint in writing, as made orally by the complainant. If there’s any failure to register the FIR under Section 154 of the CrPC, then the complainant can, through written application, reach out to the SP under Section 154(3) of the CrPC. And if SP also does not register the complaint, then the complainant under Section 156(3) of CrPC, can reach out to the Magistrate to direct the police for the registration of the FIR and also for a proper investigation of the case.
Details of Sakiri Vasu v. State of UP (2007)
Case Name: Sakiri Vasu v. State of Uttar Pradesh and Others
Important provisions: Articles 21, 32, 136, and 226 of the Indian Constitution; Sections 154 read with Sections 36, 156(3), 200, and 482 of the Criminal Procedure Code, 1973; and Section 3 of the Delhi Special Police Establishment Act, 1946.
Court: Supreme Court
Bench: 2 judges bench; A.K. Mathur & Markandey Katju, JJ.
Petitioners: Sakiri Vasu
Respondents: State of Uttar Pradesh and Others
Judgement Date: 07/12/2007
Powers of Judicial Magistrate to vigil the investigation
The Judicial Magistrate, under Section 156 of the CrPC, has the power to direct the police for a proper investigation. This power to vigil the investigation by the Magistrate has some stages, which can be understood below:
The first stage is to direct the police for investigation immediately after the filing of the FIR.
The second stage is where the person gets arrested in the process of investigation. He or she shall be required to be presented by the police within 24 hours to the magistrate to determine the validity of the arrest and to further decide the category of arrest, judicial or police.
The third stage is the intervention of the judicial magistrate for recording statements under Section 164 of the CrPC, where a person makes a confession before the magistrate as well as for ID verification, identification and seeking applications.
The fourth stage is monitoring the investigation.
The fifth stage is a direction for further investigation under Section 173 of the CrPC after the filing of the FIR.
Facts of Sakiri Vasu v. State of UP (2007)
This appeal was made by the appellant aggrieved against the order and judgement of the Allahabad High Court passed on 13.07.2003, in Criminal Misc. Writ Petition No. 9308 of 2007. The appellant has a son named S. Ravishankar, who was a Major in the Indian Army. His dead body was found at the Mathura Railway Station on 23.08.2003. The Govt. Railway Police (G.R.P.), Mathura, investigated the case of the deceased and submitted a detailed report on 29.08.2003 concluding it was either an accident or suicide.
During the inquiry, the court relied on the statements of the Sahayak (Domestic Servant) and the main eye-witness, Ram Swaroop. Sahayak (Domestic Servant) made a statement that Major S. Ravishankar was never a cheerful person, he used to sit on the verandah on a chair and always look at the ceiling with aloof, blank eyes. He was always in some kind of deep thought and was unaware of his surroundings. The eyewitness, Gangman Ram Swaroop, stated that Major Ravishankar was hit by the goods train coming from Delhi. But the father of the deceased was suspicious of his son’s death and claimed it was murder instead of suicide. He stated that his son told him about the ongoing corruption in the Mathura unit of the Army, and he also made complaints about this to his superiors. According to the appellant, due to this reason, his son was murdered.
The first court inquiry into the matter was made by the Army, which held its report in 2003, holding it to be a case of suicide. Unsatisfied with the report, the appellant on 24.04.2004 demanded another detailed investigation by the then Chief of the Army Staff, Gen. N.V. Vij, but the conclusion of the report was the same, holding the matter a suicide. The appellant, aggrieved by both the investigations of the Army Court, filed a writ petition in the Allahabad High Court. The appellant prayed for the investigation to be done by the Central Bureau of Investigation (CBI), which was dismissed. Hence, this appeal was filed by the appellant in the Supreme Court by special leave.
Issues raised
Whether the Magistrate has the power under Section 156(3) of the CrPC to pass an order for the investigation by the CBI?
Whether the Magistrate has power under Section 156(3) of the CrPC to dismiss the order for the registration of an FIR?
Whether an individual can approach the High Court even if there are alternative remedies available in CrPC?
Is it possible for the aggrieved party to ask for a specific agency for the investigation?
Whether the Magistrate has the power to dismiss the re-opening order for the investigation after the ‘Final Report’ is submitted under Section 156(3) of CrPC.
Arguments of the parties in Sakiri Vasu v. State of UP (2007)
Appellant
The appellant made the argument that the appellant’s son, Major S. Ravishankar, was aware of the corruption happening in the Mathura Army Unit. He made an oral complaint about the same to his superiors and also informed his father about this corruption. The appellant argued that his son was murdered due to this very reason.
The appellant also argued that the proper investigation was not done by the GRP Mathura, and the detailed report submitted by them concluding his son’s death as suicide is faulted.
Lastly, the appellant was not satisfied with the investigation and inquiries made by the GRP Mathura and Army Courts, he prayed in his writ petition for the CBI investigation.
Respondent
The Ld. Counsel for the State of UP argued that, as per the inquiry made by the Army, relying upon the statement of Sahayak (domestic help), Major S. Ravishankar sometimes remains unaware of his surroundings, resulting in the inquiry that Major S. Ravishankar died by accident as he was struck by the goods train coming from Delhi. The same was witnessed by the eyewitness, Gangman Ram Swaroop.
The argument made by the respondent was that the GRP investigation also concluded that the appellant’s son’s death was either an accident or suicide, but as the appellant was unsatisfied with the investigation results, the order for another investigation was made by the state to the Army Court.
The respondent alleged that a person cannot specifically demand an investigation from a particular agency; instead, a demand for another investigation can be made.
Laws and precedents discussed in Sakiri Vasu v. State of UP (2007)
The following are the sections and Articles deal within the case
Section 154(1) CrPC: This provision states that the aggrieved person can make a complaint about the cognizable offence committed against him to the police officer in charge of the police station. It shall be reduced to the writing by him or on his order by some other police, and the same will be read to the complainant.
Section 154(3) CrPC: If the FIR is not registered by the police in charge of the police station, then the aggrieved can approach the Superintendent of Police (SP) by writing an application. SP either himself or directs any of his subordinates to investigate the same.
Section 156(3) CrPC: The aggrieved person can make a complaint before the judicial magistrate if his FIR is not registered or a proper investigation has not been done. The magistrate can order for both.
Section 36 CrPC: Section 36 talks about the concerned police officers to whom the complaint has to be made in case of refusal from an officer in charge or SP, i.e., DIG, DGP or IG.
Section 200 CrPC: A criminal complaint can be made by the aggrieved to the magistrate for the registration of a crime that has been committed.
Section 482 CrPC: It is the inherent power of the High Court to pass an order in case any expressed provision is not available in the Code to maintain justice.
Section 173(8) CrPC: If the investigation officer finds further any oral or documentary evidence which is very important for the proceeding of the case. Then the evidence will be put before the magistrate in a prescribed manner, and nothing can prevent the magistrate from passing an order for further investigation, even after the final report has been submitted by the police.
Article 136: It talks about the special jurisdiction through which an aggrieved person can file a writ petition in the Supreme Court by Special Leave (SL). Under this provision, an individual aggrieved by the decision of any tribunal or court can file a petition. It is the discretionary power of the Supreme Court to grant SL under Article 136.
Article 226: It talks about the jurisdiction of the High Court, where the writ petition by the aggrieved can be filed.
The court relied on several case laws for the pronouncement of judgment.
CBI v. State of Rajasthan (2007)
In this case, it was held that the Magistrate does not hold the power to order the CBI to investigate, but the High Court and Supreme Court, under Articles 136 and Article 226, can order the CBI to investigate the case. It would be done only in rare cases, otherwise the CBI would be burdened with unnecessary cases, and the relevance of the police would be in conflict.
CBI v. Rajesh Gandhi and Others (1997)
In this case, it has been held by the SC that no one can ask for a specific agency for the investigation of the matter. An aggrieved person has a right to claim for the proper investigation of the case he alleges, but he has no right to claim for the investigation to be done by a specific agency of his choice.
Mohd. Yousuf v. Afaq Jahan and Another (2006)
In this case, the Supreme Court observed that any judicial magistrate can direct an order to the police for the investigation under Section 156(3) of the CrPC before taking cognizance of an offence. Even if the judicial magistrate does not specifically order the registration of an FIR under Section 156(3) of the CrPC, the officer in charge of the police station has to register the FIR of the cognizable offence made by the complainant so the record of the components of the offence can be registered and a proper investigation can be done.
Dilawar Singh v. State of Delhi (2007)
In this case, a similar view to the above mentioned case of Mohd. Yousuf v. Afaq Jahn, was taken by the court in this matter. The court clarified that even if the FIR has been registered and an investigation has been done by the police or the investigation is ongoing, if the aggrieved party is not satisfied with it, then such a person can approach the magistrate under Section 156(3) CrPC. The magistrate can order a proper investigation after he is satisfied and pass any other orders he thinks are suitable for the proper investigation of the matter.
State of Bihar v. J.A.C. Saldanha (1980)
In this case, the magistrate has independent power under Section 156(3) of the CrPC to order further investigation when the detailed report of the investigation is submitted by the investigating officer under Section 173(8) of the CrPC. Hence, the order for reopening the case can be made by the magistrate after submitting the final report, if the magistrate is not satisfied with the investigation report.
Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage & Ors. (2010)
In this case, it was determined that if the complaint had not been registered by a police officer or a proper investigation had not been done, then an alternative remedy is available to the aggrieved person instead of approaching the High Court under Article 226 of the Constitution, which is to approach the Magistrate under Section 156(3) of the CrPC.
High Court’s power under section 482 CrPC
The High Court has an inherent power under Section 482 of the CrPC, which enables the High Court to make any order necessary to prevent any abuse by any court and secure the ends of justice. The Hon’ble Apex Court relied on the case of Mohd. Yousuf v. Afaq Jahan. It was observed that in India the High Courts are flooded with writ petitions praying for an order for the registration of an FIR or a proper investigation. The Supreme Court asked the High Court not to entertain such petitions and asked to refuse such matters as other alternative remedies are already present in the Code. First, under sections 154(3) CrPC and section 36 of Delhi Special Police Establishment Act, 1946 the aggrieved can approach the police, and if such a complaint is denied by the police officer, then, secondly, the aggrieved can approach the judicial magistrate under section 156(3) of the CrPC instead of filing a writ petition under section 482 of the CrPC, increasing the burden on the High Court. Further, the remedy of filing a complaint under Section 200 CrPC is also available.
Doctrines discussed in Sakiri Vasu v. State of UP (2007)
Some of the doctrines discussed in the case are as follows:
Doctrine of implied power
It is already stated that when any power is expressly granted by a statute to any authority, it includes implied powers for doing things properly, without any special mention. If there’s any refusal or denial of such implied powers, it will be considered ineffective under that provision. Hence, if any act or statute grants any expressed power, the implied power to do the same is already given, and it’s extremely important for the execution of such powers.
Crawford expresses the reason for such a rule in his Statutory Construction, observing, “….if these details could not be inserted by implication, the drafting of legislation would be an interminable process, and the legislative intent would likely be defeated by a most insignificant omission.”
In Savitri v. Govind Singh Rawat (1986),the court held that the power of the Magistrate under Section 125 CrPC to grant maintenance to the wife implies the power to grant interim maintenance to the wife while the matter is pending.
From considering the above-mentioned legal position, it is obvious, as Section 156(3) is briefly worded, that there’s an implied power of the Magistrate to order the registration of an FIR for a criminal offence and to direct the police for the proper investigation of the matter. Even if these procedures are not expressly mentioned under Section 156(3) of the CrPC, they are the implied powers of the magistrate in the above provision.
Doctrine of updating construction
As per the doctrine of construction, the law should evolve along with the evolution of society. Hon’ble J. Bhagwati, in National Textile Workers Union v. P.R. Ramakrishnan(1981), said that law cannot be stagnant and stand still; it needs to be changed with social values and concepts. Section 156(3) requires the matter to be sent in writing via post. Before technological advancement, it would be considered the fastest mode of communication. After the technological developments, there are different modes of communication, such as WhatsApp, e-mail, or cellular calls, available for interpretation in writing and through the post. This doctrine should be used to cover such modes of investigation.
Judgement of Sakiri Vasu v. State of UP (2007)
The Supreme Court, relying on the case of CBI v. Rajesh Gandhi & Ors., held that any person who is aggrieved by the decision of any court or by an investigation by the police can refer the claim for the proper investigation but cannot demand the investigation by a specified agency. The Supreme Court believed that when an alternative remedy is present, there’s no need to approach the High Court as it would increase the burden and number of cases.
The Supreme Court affirmed the judgement of the High Court, rejecting the plea of the appellant asking for the CBI investigation, as there was no prima facie case to allow for such an investigation by the CBI. The previous inquiries done by the G.R.P. Mathura and two times by Army authorities have already shown that the cause of death of the deceased was an accident or suicide.
The court also stated that the position of acceptance of the final report of the investigation was not clear, whether it was accepted by the magistrate or not. If the report is not accepted, then the matter is still deemed pending before the magistrate, and no order has been made. If the report is accepted by the magistrate then the matter would be considered completed.
Rationale behind the judgement
The Hon’ble J. Markandey Katju stated that an alternative remedy is present before an individual in the court instead of approaching the High Court. He said if any man or woman had to make a complaint, they would approach the police station, and the officer in charge would register their FIR under Section 154(1) CrPC; if the approach was denied, they’ll resort to the Superintendent of Police (SP) under Section 154(3) or Section 36. If the complaint is not registered, then the aggrieved person will approach the magistrate under Section 156(3) of the CrPC instead of filing a writ petition under Section 482 of the CrPC to seek justice. Moreover, the person can also file a criminal complaint in court under Section 200 of CrPC.
It is an alternative remedy presented to the aggrieved person, but it doesn’t bar a person from approaching the High Court. The writ petition could be filed in the High Court under both Section 482 CrPC and Article 226 of the Constitution. However, the High Court reserves the right to reject the petition if an alternative remedy is available
Court’s observation and guidelines in Sakiri Vasu v. State of UP (2007)
The guidelines made by the Supreme Court are:
Report the complaint to the office in charge of the police station under Section 154(1) of the CrPC.
Report to the Superintendent of Police (SP) if the officer in charge refuses to register an FIR under Section 154(3) of the CrPC.
Report to the police officer superior of SP, i.e., DIG, DGP, IG under Section 36.
Report to the judicial magistrate in case of failure in the filing of an FIR by any of the police authorities under Section 156(3) of the CrPC.
The judicial magistrate has the power to file a criminal complaint under Section 200 of the CrPC.
The inherent power of the High Court under Section 482 of the CrPC.
File a writ petition in the High Court and in the Supreme Court under Article 226.
Conclusion
The Supreme Court, by making the remarkable landmark judgement in this case, has supported the idea of the alternative remedies present to the individuals for resorting to their issues regarding the registration of an FIR or for proper investigation under Sections 154 and 156 of the CrPC instead of directly reaching to the High Courts or the Hon’ble Supreme Court.
It is evident from this judgement that, for any proper investigation, the registration of the FIR is necessary by the police officials. Then the magistrate must take cognizance of an offence based on the report presented before him by the investigation officer to order the further proper investigation of the matter.
In the recent judgement of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage & Ors(2010), it was determined that if the complaint has not been registered by a police officer or a proper investigation has not been done, an alternative remedy is available to the aggrieved person instead of approaching the High Court under Article 226 of the Constitution, which is to approach the Magistrate under Section 156(3) of the CrPC.
Frequently Asked Questions (FAQs)
Does the High Court have the power under Section 482 CrPC to reject the writ petition?
The High Court has the inherent power under Section 482 of the CrPC to either accept or reject a writ petition filed under Article 226 of the Constitution, especially when an individual is aggrieved with the decision of lower courts. The High Court will entertain such a petition only in cases where no alternative remedy is present, particularly when a First Information Report (FIR) was not registered under Section 154 of the CrPC and a proper investigation was not conducted under Section 156 of the CrPC. It is also important to note that, before approaching the High Court, several alternative remedies are available to the aggrieved party. These remedies include seeking redress from the Superintendent of Police under Section 154(3) of the CrPC, addressing the DIG, DGP, and IG under Section 36 of the Delhi Special Police Establishment Act, 1946, and filing a complaint under Section 200 of the CrPC before a Judicial Magistrate.
Can the magistrate have the power to reopen the investigation?
The Magistrate has power under Section 178 CrPC to order the investigation officer to re-investigation of the complaint in two conditions. Firstly, if he is not satisfied with the final report submitted by the police. Secondly, if there is any new concrete evidence came into the picture.
References
Earl T Crawford, The Construction of Statutes 1008 (1940).
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In the modern world, the immigration crisis has become a cancer-like disease for countries in one way or another, just like cancer harms the body by starting with a tumour at one place and then becoming malignant, transferring to other parts/organs of the body, and starting to multiply, thus damaging the body. Similarly, an immigration crisis occurs like cancer in a country, starting with the uncontrolled, unauthorised, and unregulated growth of immigration and turning into an economic, social, and political crisis in the country.
Today, almost the whole world is suffering from the immigration crisis. As of now, the US elections are on the horizon, and the immigration crisis is the main agenda for political parties and leaders not only in the USA but also in Europe.
India plays a key role in the crisis as the world’s largest origin for international migrants. We are going to try to answer the tough questions about the immigration crisis, India, the world, and its potential solutions.
Understanding immigration and immigration crisis
Immigration means the process of moving from one country to another to stay, work, or study. An immigration crisis occurs when immigration becomes uncontrolled, unauthorised, and unregulated in a country. The immigration crisis has negative effects on countries’ economic, social, and political health. Sometimes it also compromises the country’s security. There are an estimated 272 million international migrants around the world. That equals 3.5 percent of the world’s population. It already surpasses the projection for 2050.
Global case studies on the immigration crisis
The USA
The United States of America is a classic example of an immigration crisis in today’s world. This year, an unprecedented number of immigrants arrived in the USA from the USA–Mexico border alone, which is 2.5 million. The USA has the largest number of migrants in the world, with 51 million in the year 2020, leading the world in this measure by a wide margin.
History of immigration in the USA
The history of immigration goes back to the Ice Age concerning the USA. The first immigrants came to North America from Asia in the Ice Age at least 20,000 years ago; they were the ancestors of Native Americans. Then came the Europeans, crossing the Atlantic Ocean. By the early 1600s, the Europeans had settled their colonies in the USA, including the Spanish in Florida, the English in New England and Virginia, and the Dutch in New York, among others. Pilgrims and Puritans came to the USA seeking religious freedom.
Forced and voluntary migration
Individuals arrived in British colonies via two very different paths. Some were forced to move, while others came voluntarily. Forced individuals came to the USA through slavery or transportation. The British brought immigrants to the USA through slavery and others through transportation, a criminal term for forced emigration that allowed Britain to expel its socially undesirables, criminals, and others as a way to populate their North American colony. In practice, those who were sentenced to death were asked either to be transported to North America or to hang. By 1717, the Transportation Act granted English courts the ability to sentence convicts to transportation, thus streamlining the process. Those who came voluntarily sought cheap land, new work, and a new life, among other reasons.
Immigration after independence [1776-present]
After gaining independence in 1776, the USA began granting citizenship to white men of good character through the Naturalisation Act of 1790. This was followed by waves of immigration, starting with the Irish wave of immigration in 1815, then Chinese immigration in the 1850s, and later Mexicans filling the labour shortage in World War II. People have continued migrating to the USA in pursuit of the American dream, especially post-2000.
Making of a crisis
There was a time in the history of America when immigrants played a vital role in their economy. Slogans like “immigrants make America great” are often being raised in the US elections. But now immigration has become a problem for the USA between October 2022 and September 2023. There were 3.1 million attempts of border crossing along the southern border. Of that, an estimated 600,000 migrants were able to cross the border undetected, according to the Department of Homeland Security. The U.S. government had 2.5 million migrant “encounters,” 83 percent of which occurred between designated ports of entry, often in dangerous, remote locations like the Sonoran Desert. Over half a million migrants were expelled under Title 42, a policy enacted during the pandemic that allowed border officials to expel migrants without a deportation hearing. The Biden administration lifted the policy in May 2023. Most were processed under Title 8 immigration law, which covers a wide range of issues, including asylum, visas, refugees, and deportations. Almost 200,000 were placed into expedited removal proceedings, usually because of a criminal record or a prior border apprehension. Others voluntarily left to avoid further processing. Many were given humanitarian parole. Almost 1.5 million cases were registered with the immigration court in the last fiscal year. There are about 1.3 million deportation orders.
Impacts of immigration
As we have established, the immigration crisis occurs with an increase in illegal or unregulated immigration. Here are some of the impacts of immigration on the USA-
Strain on public utilities
Illegal immigrants mostly use public utilities like buses, parks, subways, public schools, and health facilities, but they don’t pay taxes for the maintenance of these utilities.
Ready supply of cheap labour
Illegal immigrants are mostly desperate for jobs and income, so they are ready to work for less money, which ideally fulfils the labour shortage and also provides cheap labour. However, the downside is that it increases corporate crimes like exploitation of labourers, bondage, slavery, debt traps, etc., and these migrants can’t even sue the employer.
Loss of tax revenue
Illegal immigrants get away with taxes as they don’t have any documents that make them pay taxes.
Loss of jobs for citizen
Illegal immigrants also take jobs from the local citizens, as they are cheaper and easier to get.
Rise in criminal activities
While many came for employment and a better lifestyle, most of them are also engaged in criminal activities, and a few of them are even involved in terrorism. The MS-13 gang, which is composed of Central American immigrants, is a classic example of immigrants turning into criminals. It is also considered one of the most dangerous gangs in the world.
Overcrowding
Illegal immigrants also cause overcrowding in the cities.
Increase budget deficit and government debt
Related to the welfare argument is the argument that immigrants consume more government benefits than they generate in tax revenue. The empirics on this are fairly consistent—immigrants in the United States have about a net‐zero impact on government budgets.
Increased economic inequality
Illegal immigrants also increase the economic inequality of a country, as they are generally economically weaker than the original citizens of the country but are present in large numbers, thereby increasing economic inequality.
Reasons for migrants flowing to the USA
Haiti crisis deepens
The crisis in Haiti is deepening and becoming worse day by day with increasing instability, disease outbreaks, natural disasters, high fuel costs, high rates of unemployment, etc. making people of Haiti move to the USA through a life-endangering journey in the hope of having a new and better life.
Northern triangle exodus continues
Over 541,000 of the more than two million migrants who arrived at the southern U.S. border in fiscal year 2022 (FY2022) hailed from the so-called Northern Triangle countries of El Salvador, Guatemala, and Honduras. After decades of civil war and political instability, the Northern Triangle countries have among the lowest economic output and highest homicide rates in Latin America. Criminal violence was on the rise in 2022, and El Salvador’s sudden spike in gang violence led to a sweeping government crackdown.
Immigration backlog hits all-time high
The backlog of cases pending in U.S. immigration courts currently sits at almost two million—the most in history. From just over 186,000 cases in FY2008, the backlog began accelerating under Presidents Barack Obama and Trump before soaring during the Biden administration. Making people illegally immigrate to the USA. Legal analysts have largely attributed the surge in cases to staffing issues; the COVID-19 pandemic, which temporarily halted in-person services and processing; and a deluge of new court filings that began in late 2021. Wait times for a hearing now average almost five years, including for migrants seeking asylum or other emergency humanitarian relief. Meanwhile, the average caseload for immigration judges has grown, with some having as many as five thousand pending cases on their dockets.
Smuggling of people to the USA increases
In recent times, people have also been lured to the USA by smuggling cartels. They lure people from unstable countries towards the USA, promising them to give them the life they dream of, to take money from them, and then traffic them to the USA. This is a cartel working in many countries, including India.
Indians migrating to the USA
There are several push factors, such as the lack of sufficient job opportunities and economic prospects in India, that prompt individuals to seek better employment prospects abroad. Social conflicts or a lack of confidence in the governance structure in India may drive some individuals to seek a more stable environment elsewhere. The US’s reputation for offering better employment, higher wages, and career advancement acts as a significant pull factor for migrants. The enticement of quality education and prestigious academic institutions in the USA attracts students and families seeking educational opportunities. Desires to reunite with family members or relatives already settled in the USA drive some migrants to seek illegal entry for proximity to loved ones.
Europe
Europe has a long history of immigration, starting with the first immigration during prehistoric times, when people from Africa and Asia migrated to Europe during 4000-1000 BCE. Then the infamous slave trade by European colonisers like England, Spain, Portugal, etc. forced immigration during wartime to people illegally migrating to Europe for their dream, better future, and some in the hope of saving their lives.
Germany
Germany is one of the countries in Europe where immigration is a main issue nowadays. The migration flow in Germany started with the 30 Years War [1618-1648] which led to a serious reduction of the German population in some regions. After that, during WW2, many people fled Germany and many entered due to forced labour. Many people are moving to Germany to have a better European life, which is causing a crisis in Germany, especially after the border crackdown. Many Afghan migrants who fled Afghanistan amid the Taliban takeover after the USA left were now moving into Germany from Poland’s borders, along with refugees from Ukraine. After the crime spike due to immigrants, the economic burden, and the spread of Islamic terrorism, Germany is now pushing new immigration policies and planning for mass deportations. Germany has now joined hands with Italy, by shutting its doors and outsourcing its immigration crisis.
Italy
Italy is another country currently facing a tough immigration crisis. PM Georgia Meloni thinks that refugees are the problem and started a cold war with the Islamic migration by stating, “Islam is not compatible with Europe”. She also started the deportation programme and advocated the complete naval blockade as thousands of people migrated to Italy by sea. She started deporting or outsourcing the migrants through a 3rd country solution, shipping thousands of migrants to Albania as Italy processed their asylum documents.
UK
The United Kingdom is another example of Europe’s migrant crisis, and it was one of the reasons for Brexit. Now, according to British PM Rishi Sunak, migrants are terrorising and weaponizing the streets of the UK. Britain adopted the Rwanda Policy to deal with the migrant crisis by transporting or deporting the migrants to Rwanda. This involved sealing the deal for 120 million pounds with the Rwandan government so that the UK could ship the migrants to Rwanda until their asylum application was reviewed.
Sweden
Sweden is experiencing a gang war. In the last decade, Sweden had the lowest gun violence rates, but now it has the second highest in Europe. Sweden is facing a crisis due to its poor handling of immigration. Now, Sweden has become the gun capital of Europe, with gangs predominantly run by migrants in Sweden. Now Sweden is also joining Europe’s war with the immigration crisis.
India and its immigration crisis
India, also known as Bharat or Hindustan, was once called Aryavarta in history. The name Aryavarta is connected to the Aryan invasion theory, which 21st-century science has debunked, challenging 19th-century ideology. Recent developments suggest that people of Indian origin migrated to Europe 5,000 years ago. Additionally, archaeological findings prove that Indians were present globally, as Hindu idols have been excavated around the world, from Saudi Arabia to Mexico to Germany. This evidence supports the idea that Indians have been migrating for thousands of years. Records from the 19th century proved that Indian ethnic groups had settled their communities on almost every continent.
India is the country with the largest diaspora and one of the countries with both immigration and emigration crises, with people leaving and coming to the country at the same time, making the Indian government restless and tense.
India has the largest diaspora, with over 18 million people living outside India in 2020. Leading the world with the largest diaspora, India is facing two-way problems: firstly, with people leaving the country, and secondly, with people coming to India.
People leaving the country
This started with the immigration of the people during colonial rule, when the Britishers took Indian slaves to Western countries, including Europe, Africa, and America. Since then, people have been continuously moving out of the country. Various factors are making people move out of the country. Some of the factors are:
Push factors- Adverse economic conditions as a consequence of poverty, unemployment and exhaustion of resources
Pull factors- The factors that attract migrants towards an area are high wages, a better life, etc.
Socio-cultural factors-
Marriage- Marriage is the main factor in migration among women.
Caste- Caste-based discrimination and violence are also reasons for migration.
Religion- Religious discrimination and religious-based violence also cause individuals to migrate.
Political factors- Political factors such as political instability, political violence, separatist movements, etc. are the reasons for the politically caused migration.
Environment factor- Environment factors such as natural disasters, exhaustion of resources, etc. are the reason for the migration.
Consequences of migrations
Migration has both positive and negative consequences, such as economic consequences like remittances and demographic consequences that lead to redistribution of the population in the country, etc.
Immigration laws in India
The Immigration Act of 1971 is the primary legislation governing immigration in India. This act establishes the legal framework for the entry, stay, and departure of foreigners in India, and it also provides for the establishment of the Bureau of Immigration (BOI), which is responsible for enforcing the immigration laws.
The BOI is responsible for issuing visas, permits, and other documents that allow foreigners to enter and stay in India. It also conducts background checks on visa applicants and maintains a database of all foreigners who are present in India.
The immigration laws of India are subject to regular review and amendment. In recent years, there have been a number of changes to the laws, including the introduction of a new electronic visa system and the streamlining of the visa application process.
Key features of India’s immigration laws
Visa requirements: Foreign nationals from most countries require a visa to enter India. Visas can be obtained from Indian diplomatic missions abroad or online through the e-Visa system.
Length of stay: The length of stay granted on a visa will vary depending on the purpose of the visit. Tourist visas are typically valid for 30 days, while business visas may be valid for up to 6 months.
Registration requirements: Foreign nationals who stay in India for more than 180 days are required to register with the local police authorities.
Work permits: Foreign nationals who wish to work in India must obtain a work permit. Work permits are issued by the Ministry of Labour and Employment.
Deportation: Foreign nationals who violate the terms of their visa or who are otherwise deemed to be a threat to national security or public order may be deported from India.
Recent changes to India’s immigration laws
In recent years, the Indian government has made a number of changes to its immigration laws. These changes include:
The introduction of the e-visa system: The e-Visa system allows foreign nationals from certain countries to obtain visas online.
The extension of the validity of tourist visas: Tourist visas are now valid for 30 days, up from the previous 10 days.
The introduction of a new work permit category: The new work permit category is designed to attract highly skilled foreign workers.
Challenges facing India’s immigration system
India’s immigration system faces a number of challenges, including:
The large number of illegal immigrants: There are an estimated 20 million illegal immigrants living in India.
The lack of a comprehensive immigration policy: India does not have a comprehensive immigration policy that addresses all aspects of immigration, such as illegal immigration, refugee protection, and skilled migration.
The need for more effective enforcement: The Indian government needs to do more to enforce its immigration laws, including deporting illegal immigrants and prosecuting employers who hire illegal workers.
Future of India’s immigration system
The future of India’s immigration system is uncertain. The Indian government is considering a number of reforms to its immigration laws, but it is unclear when or if these reforms will be implemented. It is likely that India’s immigration system will continue to evolve in the years to come, as the country seeks to balance the need for security with the need to attract foreign workers and investment. Several factors contribute to the uncertainty surrounding India’s future immigration system. One key factor is the country’s complex geopolitical landscape and its relations with neighbouring countries. India shares land borders with Pakistan, Bangladesh, Nepal, Bhutan, Myanmar, and China, presenting challenges in terms of border security and undocumented migration. Additionally, India’s strained relationship with Pakistan, in particular, has implications for cross-border movement and visa regulations.
Another factor influencing the future of India’s immigration system is the country’s economic growth and development aspirations. India has emerged as a major economic power in recent years, and the government recognises the importance of attracting foreign investment and skilled workers to sustain this growth. However, there are concerns that overly restrictive immigration policies could hinder economic competitiveness and innovation.
The Indian government has proposed a number of reforms to its immigration system in an attempt to address these challenges. One proposal involves simplifying and streamlining the visa application process, particularly for business travellers and investors. Another proposal aims to create a dedicated visa category for skilled foreign workers in sectors such as technology, healthcare, and finance. Additionally, the government has discussed plans to enhance border security and strengthen enforcement measures to combat illegal immigration.
People coming into the country
India is facing illegal immigration from its neighbouring countries like Pakistan, Myanmar, Afghanistan, Bangladesh, and Sri Lanka. About 7,000 refugees are now settled in the northeastern states of India from Myanmar and many have migrated to India from the western border of Pakistan during partition. About 10 million people have been uprooted and migrated to India and Pakistan since 1947. People who had a fear of persecution in Pakistan are migrating to India regularly, putting a burden on the state and instilling a sense of danger and terrorism, as the relations between the two neighbours are hostile and have been marked by war and cold war continuously since independence. People of Tamil descent are also migrating to India from Sri Lanka, fearing persecution there, but they also contribute to terrorism and other crimes in India. The country is also facing the same problem as other European countries and America in solving this problem. The government is trying to bring policies to address the migration problem; one of the main steps towards this was the CAA Bill 2019, which granted citizenship to people who migrated to India from countries like Pakistan, Afghanistan, Bangladesh, and Myanmar and belonged to 6 religions, i.e., Hindu, Sikh, Parsi, Buddhist, Jain, and Christian.
Conclusion
Immigration, once seen as a reason for diversity in the world, has now become a cancer for the world and society. Indians got potatoes, tomatoes, and tobacco from immigration. The US became a superpower with the help of immigration, while Europe benefited in terms of labour, literature, art, and craft. Now, immigration often brings with it economic debt, terrorism, and security threats. Countries are taking various steps to get rid of this problem, from shipping immigrants to other countries to making a wall on the border. However, the question of how to manage immigration effectively remains unanswered.
This article has been written by Suryanshi Bothra. This article delves into the principles of the retributive theory of punishment. It examines its origins and critiques. The article also questions its role in shaping modern legal frameworks. The applicability of the retributive theory of punishment to the Indian legal system and prominent case laws is also discussed.
Table of Contents
Introduction
The quest for justice since the beginning of time has sparked debates about the best course of punishment. The maximum discourse has always been on the topic of retributive punishments. This theory is rooted in the principles of ‘eye for an eye’ and ‘tooth for a tooth’. The retributive theory of punishment is believed to be extracted from the Old Testament and is considered overly harsh. Retributivism seeks to turn the crime back on the criminal. This theory is often considered synonymous with vengeance, bloodlust, revenge, retaliation, and many other negative phrases. However, the retributive theory of punishment gained popularity due to some of the major features of modern retribution. According to some, it is considered to be the theory that seeks higher moral ground. It is one of the foundational principles that laid the foundation for the legal system. This article explores all the significant aspects and principles of retributive theory. The article addresses major questions regarding the theory and brings together the perspectives of a lot of legal philosophers.
Meaning and objective of punishment
The most fundamental aspect of criminal law is punishment. It is essential to hold the offenders accountable for their actions. Punishments are the infliction of suffering upon the person who has committed a certain offence or has violated the law. Only the state has the authority to sanction such punishments, and this authority is derived from the law. The main goal of punishment is to deter criminals from committing further crimes. Punishments play a significant role in ensuring the well-being of society by ensuring that people abide by the laws of the country, and those who don’t abide by them are penalised. Another important objective of punishment is to provide justice to the victim. It replenishes the faith of society in the justice system.
Theories of punishment
Punishments are devised on the basis of popularly known theories of punishment. Legal philosophers for centuries have worked on theorising the forms of punishments. Countries mostly follow a combination of these theories of punishment. Different crimes warrant different kinds of punishment as prescribed by these theories. Most kinds of punishments that policymakers and judges favour can be categorised into the following theories:
Deterrent theory
The deterrent theory of punishment is a utilitarian theory based on the principles of hedonism. This theory relies on making the criminals aware that the crime is not worthwhile in proportion to the punishment. While giving the punishment, its effects on the general public are considered. One of the major problems with the theory is that if the punishment is too lenient, it does nothing to prevent crime. On the other hand, if the punishment is excessively harsh, it will only gather the public’s sympathy. It can be observed that even a death sentence has failed to deter the most heinous crimes.
Restorative theory
This theory of punishment focuses primarily on repairing the harm caused by offenders. It is a victim-centred approach to punishment. It provides the victims with a voice, where the victim and the offender come together to assess the harm done and find the solution. Society, the victim, and the community become active participants in the conflict resolution process. It is based on the ideas of reparation, healing, and reconciliation. The offenders are given an opportunity to make amends. Plea bargaining, probation, and parole are all excellent examples of the application of the theory of restorative punishment.
Preventive theory
This theory of punishment aims to dissuade criminals from committing crimes in the future. It relies on transforming the criminal permanently, or at least temporarily. Many utilitarian philosophers like Bentham, Mill, and Austin, supported the preventive theory due to its humanising nature. This form of punishment strongly relies on the fact that society could be improved if the criminal is unable to commit the crime. Disablement can be achieved through various methods, including by giving the offenders jail time and reforming them. However, incarceration is the most popular and practised form of preventative punishment.
Retributive theory
People who support the retributive theory of punishment support the consequentialist theories. This theory is built on the bedrock of revenge. In this form of punishment, the offender must be responsible for the act for which he is held liable. The theory allows defences of insanity and intellectual disability. Mens rea, or guilty conscience, is considered the deciding factor. If a person possesses criminal intent, they are exempt from punishment. These are reasons why its supporters believe that this theory is rooted in fairness and justice. However, its critics call it barbaric due to their moral objections to the concept of revenge.
Reformative theory
The aim of reformative punishments is to transform criminals into law-abiding citizens. This theory is centred around individualism. The idea of reformative justice can be observed in the Juvenile Justice (Care and Protection of Children) Act, 2015. Probation, parole, and indeterminate sentences are all critical aspects of the reformative theory of punishment. The Indian Penal Code (1860) also allows for the commutation of sentences based on certain requirements. In the case of habitual criminals, this theory is not applicable. Most victims consider this approach unfair since it is very offender-centric. People believe that, in many cases, this theory of punishment fails to deliver justice.
Comparison between different theories of punishment
Aspect
Retributive
Deterrent
Reformative
Restorative
Focus
This theory focuses on proportional punishment for the crime.
This theory focuses on the prevention of future crimes through deterrence.
This theory focuses on reforming the convicts and rehabilitating them.
This theory focuses on repairing the harm and restoring their relationships.
Purpose
It satisfies the moral demands for justice and punishment.
It discourages potential offenders.
It addresses the root causes of the crime. It reintegrates the convicts into society.
This theory promotes accountability. It warrants healing and dialogue between parties.
Approach to punishment
The punishment is proportional to the crime committed.
It is a tool to deter others from committing the same crimes.
It focuses on education and reformation.
This form of punishment focuses on community involvement and restitution.
Advantages
This provides justice to the victims. There are clear guidelines and moral justifications.
There is flexibility in punishment, which has a preventive effect on society.
It is a more humanitarian approach to punishment. It reduces the rate of relapsing into a life of crime.
This approach reduces hostility and focuses more on healing.
Disadvantages
It has moral and ethical implications. It lacks rehabilitation.
It creates the potential for injustice. It works on the principle that people will make rational decisions.
It has the potential for leniency, and there is no guarantee for the desired results.
It is quite time-consuming and does not suit all types of offenders and offences.
What is retributive theory of punishment
The retributive theory of punishment relies on the foundation that crimes have consequences, and the consequences should be proportional to the crime of the individual. Immanuel Kant was one of the biggest advocates of retributive punishment and provided multiple practical aspects of its application. He is the most extensively read author on retributive theory. His books described retributivism as providing punishment to the offender just because the criminal deserves it. This fundamental aspect of retributivism is considered both its strength and weakness.
Retributive theory emphasises that since crime is a negation of rights, the punishment cancels the crime. Punishment is merely the negation of the negation. It can also be termed as two wrongs to restore a right. The Doctrine of Correctional Vengeance gives the basic idea of retributive theory. This doctrine states that when society, trying to get justice, demands the authorities to inflict revengeful punishments on criminals to get justice for the victims, it is said to exhibit correctional vengeance.
The retributive theory of punishment has consistently refrained from justifying the punishment of the innocent. In contrast to other theories, it does not employ offenders to achieve additional objectives, such as serving as a deterrent or setting an example.The only goal is to provide justice to the victim and punish the offender for the wrongs they have committed. The severity of the punishment is decided on a proportionate basis. The punishment is equivalent to the moral liability or blameworthiness of the offender. This theory provides a clear way of distinguishing who deserves punishment and who doesn’t. Punishment, therefore, is only given based on guilt. Retributive punishment acts as a strong deterrent. It helps in giving moral justice to the victim. It instils a feeling of trust within society towards the judiciary.
Origin and basis of retributive theory of punishment
Retribution, one of the oldest concepts in moral philosophy, is prominently featured in various religious texts. Within Christianity, numerous references to punishment for wrongdoing can be found, with the belief that sinners will face consequences for their actions in the afterlife. Hindus and Jains attribute retribution to ‘Karma’. The earliest application of retributive theory can be observed in “Mahabharata”. It has several instances with very good examples of how retributive punishment should be inflicted. Arjun was about to leave the battlefield during the war. He was too scared and had moral objections to go against his relatives. Lord Krishna conveyed to Arjuna that war should only be resorted to when all other paths are closed. Krishna explained that if, in such circumstances, an individual refuses to fight, it would result in grave injustice to society as a whole.
Further, the Quran discusses retribution in the form of punishment for the wicked and disobedient. The Islamic rulers of India were the ones who introduced Islamic law. Theft, adultery, murder, and all heinous offences warrant grave punishments under Sharia law. Punishments like amputation of limbs, beheading, and stoning were prescribed. The objectives of all such punishments were rooted in the principles of delivering justice to the aggrieved.
Paranjape, in his book titled, ‘Criminology, Penology, and ‘Studies in Jurisprudence and Legal Theory, talks about various theories of punishment. In the book, he explained the retributive theory of punishment as a theory emphasising that the pain proportional to the pain of the victim should be inflicted on the offender.
In 1901 C.E., a French explorer found a set of inscriptions at Susa. This code, with around 282 laws, was enacted by Hammurabi. He was a Babylonian king and enacted one of the oldest complete legal codes. The code had provisions that, if a person causes a man of rank to lose his limb, let the limb of the offender be shattered. Similar philosophies were applied to the eyes and teeth. However, the codes dictated that the injuries of a poor man could be compensated with silver. His principle was based on equal and direct retribution and was governed by the state.
Cesare Beccaria, an Italian criminologist, is known for his authorship of multiple books on crime and punishment. In contrast to other authors who emphasised the principle of lex talionis, Beccaria focused more on retribution or revenge. From the 1970s onward, legal scholars, philosophers, state courts, and the supreme courts across the world saw a huge rise in the popularity of the retributive theory of punishment. Over the years, retributive theory has manifested itself in various legislation and Supreme Court judgements in the form of severe punishments and the death penalty.
Lex talionis and retributive theory
Lex talionis, in Latin, means the law of retaliation. It is often expressed under the motto, “Let the punishment fit the crime.” In ancient Rome and Palestine, bodily harm, injury, and theft were considered private wrongs. As such, the matter was settled between the victim and the wrongdoer. It was usually done without the involvement of the state. According to this principle, talion was the ultimate satisfaction the injured person could demand. This could be an eye for an eye or money. The vengeance-based forms of lex talionis have been severely criticised. It potentially begins an endless cycle of hurt and violence.
Principles of retributive theory of punishment
H.L.A. Hart was a legal professional and philosopher. He gave new insights into the retributive theory of punishment. He believed that the existing theorists who wrote on retributive punishment did not emphasise some crucial elements of the theory. Therefore, he proposed a theory in which he emphasised three principles. Desert is considered the fourth principle of retribution. All different variants of the retributive theory are formulated using these three principles as the foundation. Variations and amendments to these principles are used to create the theory. Those three principles are as follows:
Principle of responsibility
The principle of responsibility indicates that a person may only be punished if he/she has voluntarily done something wrong. According to the retributive theory of punishment, a guilty mind and a guilty conscience are essential. In short, the person will only be eligible for punishment if they are guilty of the act. These principles provided by Hart are not exclusive to retributive theory. They apply to almost all theories of punishment, just in a different way and with different objectives. This principle provides an answer to the question, “What sort of conduct may be punished?” However, these principles raise a very important question when talking about responsibility. What would be the stance of the retributive theory of punishment in cases of strict liability offences? Strict liability, according to tort and criminal law, is an offence when the defendant is guilty of committing an action regardless of the intent to cause harm. Retributive punishment theories, however, fail to provide solutions to the question of strict liability.
Principle of proportionality
The punishment for an offence should either be equivalent to or match the intensity of the offence. Retributive punishment embodies the idea of something being paid back by the wrongdoer. This principle provides an answer to the question, ”How severely?” It must be similar to the crimes committed against the victim. It relies heavily on the concepts of punitive harm, deprivation, and suffering. Some philosophers and legal writers have suggested a few modifications to the principles of Hart. One suggested modification is that punishment under this theory will only be valid if it causes harm to the offender.
Principle of just requital
This principle of retributive theory addresses the question of why punishment is essential. It offers a rationale for penalising the offender. It asserts that punishment rectifies the moral wrongs committed by the criminal. Proponents of retributivism say that punishment rights moral evils, therefore it is morally good. This principle advocates for the victims. It says that the victims are entitled to see the wrongdoer getting punished. Non-retributivists generally oppose this aspect of the theory, as they argue that two wrongs do not make a right.
Desert
This concept focuses on culpable acts and omissions. The principle states that punishment may be imposed for the person’s bad faith, fraud, or wilful misconduct in carrying out his obligations. Hart’s model discussed above omits the principles of the desert. Some legal philosophers claim that even though Hart does not explicitly talk about the concept of desert, it can be observed in his first principle of responsibility. The desert can be seen as an additional fundamental principle of retributive justice. Desert, in a sense, is a moral concept. It can be analysed as a relation between the person who deserves something, what they deserve, and in what virtue. Some models that include the concept of desert categorise it into three specific categories based on the questions they answer. They are the desert object, the desert subject, and the desert basis. The concept of the desert also talks about who can appropriately give the desert subjects what they deserve. They can be referred to as desert agents. Let’s dive a little deeper into all the aspects of the desert.
Desert subject
In the retributive theory of punishment, it is fairly easy to determine the subject of the desert. It is simply the wrongdoer. The problem arises when the offender is either a child or an insane adult. Similar problems arise in cases where the offenders are entities like the state or corporations. In the above-mentioned cases, it is questionable if the party being punished can understand that they are being condemned. Small children and insane people cannot understand the harm caused by them and its consequences.
Desert object
Desert object helps us answer the question of what crime deserves what punishment. It can help us categorise different punishments for different wrongs. Retributivism claims that it is unjust to punish the wrongdoer more harshly than is deserved. Disproportionate punishments are wrong for both the criminal and the victim. It is equated with punishing an innocent person. Concepts like plea bargaining are not usually entertained by retributivists.
Desert basis
The desert basis deals with the relevant kinds of wrong that can be punished under retributive theory. This discusses two important questions of the retributive theory. Murders and rapes are grave offences. Punishments for them can be defined; however, what would constitute an attempt is debated. In cases where the mental state of the offenders is less culpable, the punishment becomes less obvious. The retributive theory of punishment allows punishments for harms that are not caused only by moral wrongs.
Types of retributivism
There are a considerably large number of variations in retributive theory. These different types have very minute differences.
Negative and positive retributivism
Negative or weak retributivism asserts that based on the crime, the wrongdoer must not be punished more than the wrongdoer deserves. Positive or strong retributivism claims the opposite. It emphasises the fullest extent of punishment on the basis of the offender’s just deserts.
Moralistic and legalistic retributivism
Different versions of retributive theory also differ on the basis of what the punishment is imposed for. In moralistic retributivism, moral culpability is considered central. It makes offences punishable even if they do not amount to a violation of the law. On the other hand, legalistic retributivism punishes the violation of a law even if there is no moral wrongdoing. There is also a combined version of these two variations of retributive theory. In this context, morally culpable offences as well as violations of criminal law are necessary individually for the justification of punishment.
Communicative and consequentialist retributivism
Communicative retributivism is yet another approach to retributive theory. This variation holds some scepticism over harsh treatments. Its core idea is to express strong disapproval of wrongdoing. It is often considered the default position of retributivists. Consequentialist retributivism also exists, which is quite different from regular retributivism. It is based on conceptual and logical consequences. Limiting retributivism limits the constraints of proportionality. Comparative proportionality is one of the major factors that determine the punishment for a crime.
Deterrent Retributivism
Retribution is not primarily focused on deterrence. However, the public spectacle created by retributive punishment may act as a deterrent for potential offenders. The idea is that witnessing the offender face the consequences of his/her actions discourages others from engaging in similar criminal behaviour. Retributive punishments reinforce the shared values of the community by punishing individuals who violate moral principles and societal norms. Ensuring that offenders face the consequences of their crimes and retribution seeks to provide justice to victims in that form. Holding perpetrators accountable restores the confidence of the victims in the system. This encourages the victims to report crimes and cooperate with law enforcement. All of these indirectly contribute to crime reduction.
Retributive theory of punishment in India
In ancient India, punishment philosophies were primarily focused on rehabilitation and reformation. It has emphasised the importance of moral and ethical principles in changing criminal behaviour rather than retribution. British colonialism saw a shift towards a more punitive and disciplinary approach. However, in recent years, holistic and restorative approaches to punishment have been gaining recognition. Overall, an interplay between historical, cultural, and social factors is reflected in the growth of punishment philosophies in India. Indian public attitudes towards crime and justice have significantly changed with the spread of social media.
Despite the shift to preventive and reformative theories of punishment, glimpses of the application of the retributive theory of punishment are visible in the legislation as well as landmark cases in India. The penalties are proportionate to the severity of the crime. Indian courts, while sentencing consider both the crime and the criminal. An approach that takes into account all the various factors and circumstances leading up to the crime. Close attention is paid to the criminal’s social and economic circumstances. It is ensured that the sentences are just. It is usually tailored to the specific circumstances of the case. This aligns with the retributive principles of punishment. The punishment corresponds to the seriousness of the wrongdoing.
Death penalty in India is retained for only heinous offences. Death penalties are guided by the principles of proportionality. Hence, they are often discussed in the context of retribution. The supporters of this theory argue that for the most heinous crimes, it is the only just punishment. In India, judges have certain discretion when giving out sentences, which allows them the liberty to decide on the punishment while staying within the ambit of the punishment prescribed according to the legislation. However, the checks and balances, as well as the appeals system, ensure that discretion is exercised judiciously. It is ensured, according to the retributive principles, that the punishment is neither too lenient nor excessively harsh.
Let’s look at a few landmark cases to understand the application of retributive principles in India.
In Anwar Ahmad v. State of Uttar Pradesh and Anr. (1975) before the trial and conviction, the convict had already undergone a six-month imprisonment term. Later, he was officially sentenced to six months in prison. The Court held that it was not necessary to sentence him again since the required ‘blemish’ had already been imposed upon him. Following the principle of retributive punishment, the court reasoned that it would inflict a very big loss on the family as well. The principle of proportionality was enforced in this judgement.
InSri Ashim Dutta Alias Nilu v. State of West Bengal (1998), the application of both deterrent and retributive punishment was observed. It was done to prevent the recurrence of the offence. Rapid societal progress and increased advancement in science and technology have led to a change in the outlook of people towards punishment. Due to an increase in literacy rates people have started thinking differently about punishments. Experts in different branches of knowledge have been trying to understand the nuances of the theory. The retributive theory of an eye for an eye and a tooth for a tooth is no longer considered the correct approach.
The Delhi gang rape and murder case (2012) is another great example of the application of the retributive theory of punishment. The case is a tragic and notorious incident that sparked widespread outrage among the Indian population. Every discussion about retributive punishment in India discusses this case. In this Supreme Court judgement, four out of six felons were sentenced and hanged. Retributive punishment was given to the convicts involved in the extremely heinous Nirbhaya case. This judgement was much awaited and celebrated by society.
However, after such judgements, jurists and policymakers in India questioned whether retributive punishments like the death penalty really are the best ways to deal with crime. The 262nd report of the Law Commission of India, chaired by Justice A.P. Shah, discussed the death penalty in 2015. The commission concluded that India should make its first move towards the abolition of the death penalty. The commission claimed that there is no justification for treating terrorism differently from other cases. The commission discussed the concerns of lawmakers in mind. They debated the abolition of the death penalty for terrorism-related offences and waging war. Therefore, the commission suggested the abolition of the death penalty for all offences other than terrorism-related offences.
Criticism of retributive theory of punishment
The main criticism of this theory is that punishment per se is not a remedy for the crime of the offender. Critics say that it just aggravates the mischief. Society sees punishment in itself as an evil curing evil. The only reason it is justified is the faith that it yields better results. The application of the retributive principle is filled with inconsistencies within the legal system.
Retributivism is quite often criticised because it fails to consider the specific circumstances surrounding a crime. Sometimes giving the eye for an eye punishment defeats the purpose of the punishment. Let’s take an example, What would be the punishment if a person raped someone? Capital punishments are given as a retributive measure. In this case, the basic principle of retribution suggests we give the person back what he did, i.e., sex. However, it would probably be more pleasurable for a criminal than torture for him. The root causes of crime often go unnoticed because retributive punishments focus on punishing past offences.
This theory leads to society developing feelings of vengeance. This is followed by destructive tendencies. This raises ethical questions regarding the motivations behind punishment. Revenge is like wild justice. Critics argue that the retributive principle may help enforce the rule of the jungle but cannot ensure the rule of law in a civil society. Sometimes the punishments become disproportionate to the grievousness of the crime.
Consequences of a shift to retributive theory of punishment
There was a comparative study undertaken to compare the outcomes of retributive punishment and rehabilitative punishment. They examined the Tihar Jail in India and Halden Prison in Norway. This study objectively compares the jails, conditions, infrastructure, and treatment of prisoners. The study concluded that the Norwegian system was better. Norway focuses on the social and moral rehabilitation of offenders, while Indian prison systems are understaffed and the offenders are subject to bad treatment. The rate of convicts who go back to a life of crime in Norway is much less than in India.
Countries like the United States of America, Saudi Arabia, Brazil, India, and the United Kingdom all have aspects of the retributive theory of punishment in their legal systems. There are also disparities in sentencing based on race, socioeconomic status, and political influence. In the states, African Americans, Hispanics and Mexicans are much more likely to get higher sentences. Due to the private prison system, the principles of retributive theory have been applied more often than necessary. The incarceration rates have increased exponentially. In Sudan, a man’s hand was amputated for theft. These raise multiple human rights and ethical considerations. Countries like Brazil and India have problems with overcrowded prisons due to a retributive approach. This puts a strain on the prison facilities, and there isn’t sufficient investment in rehabilitation. This leads to convicts relapsing their way into the prison system again.
Conclusion
In conclusion, the retributive theory of punishment stands as a significant philosophy within the realm of criminal justice. It has endured the test of time and has still managed to hold its significance. Retribution has played a central role in the creation of legal systems around the world. It influences societal attitudes towards justice. However, the retributive theory has its challenges and criticisms. Moral scepticism and concerns about potential errors have always been at the forefront of debates. The irreversibility of punitive measures such as the death penalty forces the sentence to make sure that the right person is convicted. Moreover, retributive theory coexists in a dynamic landscape. This landscape is filled with multiple opinions on justice. Philosophers, legislators and legal professionals have had differing opinions on utilitarianism, rehabilitative approaches, and human rights principles.
With evolving societies, the discourse surrounding the effectiveness of retribution has come into question. A detailed understanding of all the different theories of punishment helps create a balanced approach to punishment. Striking the right balance between retribution, deterrence, and rehabilitation can help reform the criminal justice system. Societal protection remains a challenge for all parties involved in law-making and law enforcement. Whether retribution maintains its prominence and adapts to the changing requirements of the era is questionable.
Frequently Asked Questions (FAQs)
What is an example of the retributive theory of punishment?
Eye for an eye, tooth for tooth, and life for life are all animation examples of the retributive theory of punishment. Modern-day capital punishment can be seen as the best example of the same. In countries like Sudan, Saudi Arabia, and many others that follow Islamic law, retributive theory is still followed. Amputations, stoning, and death remain common punishments.
What are the characteristics of retributivism?
The principles of responsibility, proportionality, just requital, and desert are the main pillars of retributivism.
What is the difference between the retributive theory of justice and Lex talionis?
The retributive theory of punishment is a moral and philosophical theory that provides proportionate punishment based on the crime committed by the offender. Lex talionis is an ancient theory that advocates mirror punishment. It literally states, “eye for an eye” and “tooth for a tooth”. Whatever harm is caused by the offender, the same harm should be inflicted upon him/her.
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This article has been written by Ashutosh. This is an exhaustive article which deals with how to get an Indian Citizenship, and it focuses on all the aspects of getting an Indian Citizenship. Other than that, this article widely covers information about the various ways and steps through which Indian Citizenship can be obtained, terminated, designated, etc.
Table of Contents
Introduction
Are you someone who wants to get Indian Citizenship and want to permanently shift to India to carry on your business or to pursue your dreams in the land of vast resources and opportunities? Then don’t worry, we have got your back and you have landed at the right place.
Indian citizenship can be obtained in various ways such as by birth, by descent, by naturalisation etc. and the Ministry of Home Affairs is the body which deals with the matter of granting Indian Citizenship to non-residents of India. Foreigners can get Indian Citizenship under Section 5 and Section 6 of the Indian Citizenship Act, 1955 if they fulfil all the eligibility criteria and have all the required documents with them. Read the whole article to get all the insights about getting Indian Citizenship.
What is the Citizenship Act, 1955
People seeking to get Indian citizenship must have a brief knowledge of the Citizenship Act 1955 (hereinafter referred to as the Citizenship Act). The Citizenship Act 1955 is an Act that provides all kinds of rights and duties to an Indian citizen.
This Act makes sure that all the individuals of the country hold a position as an Indian National. (hereinafter referred to as the Citizenship Act) it consists of 19 sections and each section has its importance in providing Indian Citizenship.
Brief introduction of Indian Nationality Law
The Indian Nationality Law talks about the conditions through which a person holds Citizenship of India. Under this law, there are two main pieces of legislation which govern all the essential requirements to get Indian Citizenship and those two legislations are the Citizenship Act and the Indian Constitution.
Under the Section 3 of the Indian Nationality law, all the individuals who were born in India between the period of January 26th and July 1st 1987 were automatically granted Indian Citizenship by virtue of their birth no matter what the nationalities of their parents were. All the individuals who were born between the period of July 1st 1987 and December 3rd 2004 were granted the Citizenship of India only if any of the parents was a citizen of India. But all the persons who are born in India after this period have received the Citizenship of India during their birth only when both the parents are citizens of India, or only if one of the parents is an Indian Citizen and the other one is not an illegal migrant.
According to the Indian Nationality Law, foreigners are also entitled to get the Citizenship of India through the process of Naturalisation, if they stay in India for 12 years and if they renounce their previous nationalities. Some of the minority communities from the neighbouring countries of India such as Bangladesh and Pakistan have received a reduced requirement, that is those people belonging to minority communities can avail of the Citizenship of India if they stay in India for 6 years.
Foreigners can also get an Indian Citizenship through registration by applying an online application form under their category form, available on the website of the Ministry of Home Affairs. We will be dealing in detail with all the ways through which Indian Citizenship can be obtained further in this article, so keep reading this article till the very end if you want to know more about it.
Difference between Citizenship and Nationality
Nationality and Citizenship are two different words with completely different meanings. The main difference between Citizenship and Nationality is that nationality indicates the ancestral place of birth of an individual (the place in which a person is born). On the other hand, Citizenship indicates the place of registration.
An individual can not have more than one nationality but an Individual can become a citizen of more than one country.
What is Indian citizenship
Indian Citizenship simply means the relation of an Individual with India, and legally speaking, Indian Citizenship provides recognition to an individual of the right to vote, to be a member of the polity of India, to seek public office, and to enjoy all kinds of rights guaranteed under the Constitution of India.
The Citizenship Act in India along with all its amendments gives a clear picture and the legal understanding of the Indian Citizenship and also of its acquisition, resumption, cessation and delineation. On a simpler note, Indian Citizenship provides all kinds of responsibilities and rights to its citizens such as a passport, access to all kinds of social welfare schemes, etc. Thus, it provides a legal status to all its citizens.
Provisions pertaining to citizenship in Part II of the Indian Constitution
Article 5– This Article talks about the citizenship of those people who were citizens of India during the commencement of the constitution (26th January 1950). Under this Article citizenship is provided to those people who have their domicile in India and-
who was born in India,
whose either of the parents were born in India
Article 6– This Article talks about the citizenship of those persons who have migrated from Pakistan during the commencement of the Constitution.
Article 7– This Article deals with the rights of those people who had migrated to Pakistan after 1st March, 1947 but later came back to India.
Article 8– This Article talks about the citizenship of those persons who live outside India
Article 9– This Article talks about how people who voluntarily acquire citizenship in any other country will not be considered Indian citizens.
Article 10- Any individual who is considered an Indian citizen under any of the provisions of this part will continue to be an Indian citizen.
Article 11- This Article talks about the right of parliament to regulate the right of citizenship by Law.
What are the benefits of Indian Citizenship
There are multiple benefits of getting Indian Citizenship, and some of the major benefits of getting Indian Citizenship is mentioned below.
Job Opportunities– The citizens of India get unrestricted access to all the employment sectors in India, and also to all the governmental positions and various public services that are limited only to Indian citizens.
Voting Rights– All the citizens of India have a legal right to participate in all kinds of democratic voting processes, by voting in any state, national and local elections happening in India.
Right to own property– The citizens of India have an exclusive right to deal with their property. They can sell, hold, and transfer their property according to their will, no restrictions can be placed upon them.
Benefits of Social Security– All the citizens of India have ultimate access to all kinds of social schemes which are being run by the Indian Government for the benefit of their citizens.
Legal Protections– The citizens of India get access to all kinds of legal protections and constitutional rights. Such as the right to freedom of speech, right to equality and right to personal liberty.
Holding Public Office– All citizens with Indian citizenship have a right to political representation and stand for public office positions.
Cultural Connection– The citizens of India have a right to explore Indian culture and feel a sense of connection with the culture, traditions, history and heritage of India.
How can Indian citizenship be acquired
There are multiple ways through which Indian Citizenship is granted under the provisions of the Indian Citizenship Act, of 1955, such as:
Indian Citizenship is granted by Birth under Section 3
Indian Citizenship granted by Descent under Section 4
Indian Citizenship granted by Registration under Section 5(1)
Indian Citizenship is granted by Registration under section 5(4) (minors)
Indian Citizenship is granted by Naturalisation under Section 6
Indian Citizenship granted by the Corporation of Territory under Section 7
Now let us understand all these sections in detail, further in this article.
Indian Citizenship by birth
Section 3 of the Indian Citizenship Act, of 1955 deals with the categories under which individuals are considered as citizens of India by birth. So section 3 of the Indian Citizenship Act provides that.
Any individual who is born in India between the period of January 26th 1950, and July 1st, 1987 will be considered a citizen of India by birth. Even if the parents of the child are not Indian nationals the child can still be considered as an Indian Citizen.
Any individual who is born in India between the period of July 1st 1987, and December 3rd 2004, will be considered an Indian Citizen by birth if any of his parents is an Indian National during the time of birth. It is not necessary for both parents to be of Indian Origin if the child is born during this period.
Any individual who is born in India on or after the period December 3rd 2004, will be considered a Citizen of India only if both the parents of such child are an Indian national, Or if one of the parents is an Indian National and the other one is not an illegal migrant.
Please Note
According to Section 2(1)(b) of the Citizenship Act, any foreigner who enters the premises of India without a valid passport ID and other valid travel documents is considered an illegal migrant. Also, those persons who have all the valid documents and Passport IDs but stay in India for more than the permitted period are also considered as illegal migrants.
Tabular Representation of Section 3 of Indian Citizenship Act, 1955
Date of Birth
Place of Birth
Conditions required
Born between the period of 26.01.1950 and the period of 01.07.1987
India
No required conditions other than is required
Born between the period of 01.07.1987 and the period of 03.12.2004
India
Either the parent of such a child should be an Indian National during the time of birth
Born between the period of on or after 3rd December 2004
India
Both the parents of such a child should be an Indian National at the time of birth. OrIf not, then one of the parents should be an Indian National and the other one should not be an illegal migrant during the time of birth.
Indian citizenship by descent
Section 4 of the Indian Citizenship Act, of 1955 deals with the categories under which individuals are considered as the citizens of India by Descent. Section 4 of the Indian Citizenship Act provides that.
Any individual who is born outside the premises of India on or after January 26th 1950 but before the period of December 10th 1992, will be considered an Indian National by Descent only if the father of such individual was an Indian National by birth during the period of his child’s birth. In case the father of such a person was also an Indian citizen through Descent only then in such cases that person not be considered as an Indian citizen. But if the birth of such a person was registered with an Indian Consulate (office of a consul) within one year from the date of his birth or if there was permission by the end of Central Government, after the expiry of the given period then in such cases it will be applicable.
Any individual who is born outside the premises of India on or after December 10th 1992, but before the period of December 3rd 2004, will be considered an Indian National by Descent if any of his parents were a citizen of India by birth during the period of his birth. But in case any of the parents of such an individual were a citizen of India by Descent and not by birth then such a person will not be considered an Indian National, until and unless the birth of such a person was registered with an Indian Consulate within one year from the date of his birth or if there was a permission by the end of Central Government, after the expiry of the given period.
Any individual who is born outside the premises of India on or after December 3rd 2004, will not be considered an Indian Citizen, unless any of the parents of such child declare that their child (minor) does not hold a passport of any other nation and his birth is also registered with an Indian Consulate within one year from the date of his birth or if there was a permission by the end of Central Government, after the expiry of the given period.
Please Note
The parents of such a child will have to give an undertaking in writing, stating that their minor child does not hold a passport from any other country. And the applications for such kind of registration of birth have to be made in Form 1.
Tabular Representation of Section 4 of Indian Citizenship Act, 1955
Date of Birth
Place of Birth
Conditions required
Born between the period of 26.01.1950 and 10.12.1992
Outside the premises of India
Father should be an Indian National by birth. If the father is also an Indian National by descent, then the birth of the child should be registered with an Indian consulate within the duration of one year from the time of birth.
Born between the period of 10.12.1992 and 03.12.2004
Outside the premises of India
Any of the parents should be Indian nationals by birth. But if the parents were also an Indian National by Descent then the birth of the child should be registered with an Indian consulate within the duration of one year from the time of birth.
Born on r after the period of 03.12.2004
Outside the premises of India
A written declaration by the parents should be submitted stating that the minor does not hold a passport from any other country. The birth of their child is registered with an Indian consulate within a duration of one year from the time of birth
Indian citizenship by registration under Section (5 (1))
Section 5 of the Indian Citizenship Act deals with various categories of people (not illegal migrants) who can be registered as Indian Citizens through the process of registration.
Any individual who is of Indian origin and has been living in India for more than seven years before making the application in Form I under section 5 (1) (a) of the Citizenship Act.
Any individual who is of Indian origin, but is a resident in any other nation or place outside the premises of undivided India under section 5 (1) (b). And individuals who are married to an Indian citizen, who has ordinarily lived in India for seven years before filling out an application under section 5 (1) (c). In such cases, the application must be filed in Form II.
A minor child whose both parents are of Indian origin under section 5 (1) (d). In such cases, the application has to be made by the parents under Form III.
Individuals who are of full age and both their parents are of Indian origin under section 5 (1) (a) or 6 (1), those individuals can obtain the citizenship of India under Section 5(1) (e). In such cases, the application should be filed in Form III-A.
Any individual who is of full age and any of the parents of such individual were a citizen of Independent India and lived in India for one year before filing the application under Section 5 (1) (f). Here the application shall be filed in Form III- B.
Any individual who has obtained full age and has also been registered as an OCI (which means Overseas Citizen of India) for a period of 5 years just before filing an application under section 5(1) (g). Here the application should be filed in Form III-C
Please Note
Only those persons are considered as people of Indian origin, who themselves or any of their parents were born in undivided India or in any other territory which later became part of India after the period of 15th August 1947.
Tabular representation of Section 5 (1) of the Indian Citizenship Act, 1955
Section
Persons who can apply
Section 5 (1) (a)
Any adult Foreigner who or any of his parents were born in undivided India and the applicant is also ordinarily an Indian citizen for the duration of seven years before filing his application form for registration
Section 5 (1) (c)
Any adult foreigner who has married an Indian citizen and has lived for seven years in India before filing his application form for registration
Section 5 (1) (d)
A minor child having both parents of Indian origin
Section 5 (1) (e)
Any adult foreign individual whose parents are registered as Indian citizens under section 5(1) (a) or section 6(1)
Section 5 (1) (f)
Any adult foreign individual who was a citizen of India, or any of his parents were a citizen of India, and have lived in India for one year before filing his application form for registration.
Section 5 (1) (g)
Any foreigner who is an adult and has been registered as an Overseas Citizen of India for at least 5 years or more and such person has also lived in India for one year before filing his application
Indian citizenship by registration under Section (5 (4))
According to Section 5(4) of the Citizenship Act any minor child can become a registered citizen of India If the Central Government feels that there are special circumstances which justify the registration of such minor child. Under this scenario, each case is considered on the basis of merits, and applications under this category are made in Form IV.
Indian citizenship by naturalization
Section 6 of the Indian Citizenship Act, 1955 provides that any foreigner who is not an illegal migrant and has lived in India for a period of 12 years can be registered as an Indian citizen through the process of naturalisation.
Such individuals should have been living in India for more than one year immediately preceding the application date and for the duration of 11 years in the aggregate in the 14 years preceding the duration of 12 months. Such individuals shall also fulfil other necessary qualifications as mentioned in the Third Schedule of the Indian Citizenship Act, 1955.
Indian citizenship by incorporation of territory
Section 7 of the Indian Citizenship Act, 1955 states that if any territory comes under India or becomes its part, then the Central Government may, by an official order mention the persons who shall be considered as Indian citizens because of their relation with that particular territory. And those parents shall also be considered as Indian Citizens from the date that is specified in the order.
Frequently Asked Questions on acquiring Indian citizenship
These are some of the most commonly asked questions with regard to the ways through which Indian citizenship can be acquired.
What are the different ways of acquiring Indian Citizenship?
Indian Citizenship can be acquired through birth, descent, registration, naturalisation, and incorporation of territory.
Can a foreigner become an Indian citizen?
Yes, a foreigner can also acquire the citizenship of India through the process of naturalisation. If he is not an illegal migrant.
Can a foreigner acquire Indian citizenship through marriage?
Yes, a foreigner who has married an Indian citizen and has also stayed in India for a period of seven years can acquire Indian citizenship.
Can a minor child be registered as an Indian Citizen?
Yes, if the Central government feels that there are certain circumstances which justify granting of citizenship to the minor child.
User guide to applying for Indian citizenship
Here is a very simple yet very useful user guide along with a visual representation for all the individuals who want to apply for Indian Citizenship.
Step 1– Open the browser and visit the official website of the Foreigners division of the Ministry of Home Affairs. Tap here to visit the website. Once the candidate taps on this link you will get to see a window like this.
Figure 1- Home page of the Foreigners division of the Ministry of Home Affairs.
Step 2– Once the candidate reaches the above window, he needs to find and locate the category option and under which section of the Indian Citizenship Act, 1955 he fulfils all the eligibility criteria. Once a candidate finds the section which is suitable for him he needs to tap on it. In the below given image for a better explanation, we have chosen section 5 (1) (a).
Figure 2- Page showing the registration option for citizens eligible under section 5(1) (A) of the Citizenship Act.
Step 3– After landing on this page, click on the link of eligibility criteria to check all the eligibility criteria. Once done tap on the link of eligibility criteria and this window will appear.
Figure 3- Eligibility criteria under section 5 (1) (A) of the citizenship act
Step 4- After checking the eligibility criteria, tap on the link of required documents to check the list of all essential documents which will be required in this process. Once done, tap on the link and a list of all the documents will appear on your screen.
Figure 4- List of the required documents under section 5 (1) (A) of the Citizenship Act.
Step 5– Once the candidate is done checking all the eligibility criteria and documents, he needs to proceed to check whether his category falls in the passport details exemption category. And then a screen like this will appear.
Figure 5- Image showing the list of passport details exemption.
Step 6– Now we have to move forward with the application part. If the candidate wishes to apply online for his citizenship then he must tap on the apply online option. Which is presented just below the passport details. Once done tap on the link to apply online and the applicant will be redirected to this page.
Here the candidate will be provided with a temporary application ID. All the applicants must note their temporary application ID. The candidate has to fill up all the details on this page such as father details, mother details, spouse details and several other details about themselves.
Figure 6- Page where the applicant has to fill all his details.
Step 7– Once the candidate is done with filling all the necessary details he needs to tap on the save and next button. If he has mentioned all the details correctly then he will be automatically redirected to another page of the application that is the address part. But if he has not mentioned all the details correctly then he will get an error message and then he will have to correct all his mistakes according to the error message. Once he has cleared all the errors he will be redirected to the address page.
Figure 7- Page where the applicant has to fill in all his address details
Please Note
If the applicants are from Bhutan or Nepal and they don’t have a passport or their passport has expired then they need not fill in the particulars related to the passport. Because it is optional for the nationals of Bhutan and Nepal to fill in their passport details, they can just leave that area unfilled. But they must, while filling in their application details, upload a Bhutanese or Nepali document which has been issued to them by their election commission.
Certain relaxations are provided to the people of minority communities from Pakistan or Afghanistan who have entered the premises of India on or before 31st December 2009. Those relaxations are-
It’s optional for these applicants to fill in the passport details.
They have to enter the date of visa valid up to
If the applicants have an expired passport then they can simply put the details of their expired passport (expired passport particulars are also accepted by the system)
Step 8– Once the candidate has come to the address page, he will need to enter his address details correctly. Once he has filled in the address details, he needs to tap on the Save Data button. Once he taps on this button a screen will appear which will show all the records in the table. And if the applicant wants to add more addresses then he can do so by adding more records and after that, all those records will be visible in the table.
Figure 8– Page where address page and records can be modified and added.
Step 9– After filling in the addresses the applicant has to fill in the details of his family members on the next page. Once that is done the applicant can tap on the Save Data button. Then similarly to the last stage, all the records along with a table will appear on the applicant screen. The applicants will get to see a screen like this, and they will also get to see the options of edit and delete from where they can add or delete details of their family members.
Figure 9- page where the applicant has to fill in his family details.
Step 10– Once the applicant has filled in all the details related to his family he will have to click on the next button to move to the next part of criminal proceedings. If the applicant has any kind of criminal proceedings against him then he will have to select the YES button and if he does not have any criminal proceedings against him then he will choose the NO option to move further with the application.
Figures 10 & 11- Images showing the column where the applicant has to fill all the details related to his criminal proceeding.
Step 11– After the applicant is done with the criminal proceedings part he will have to tap on the next button to move to the part of uploading photos and documents. A screen like this will appear where the applicant has to upload all the photos.
Figure 12- Image showing the page where the applicant has to upload his photo.
Once the applicant comes to this page he will have to select the relevant photos he needs to upload and tap on the upload photo button. Once the applicant taps on the upload photo button he will get to see a screen like this.
Figure 13– Image showing the page from where the applicant can view his application form.
From the above screen, the applicant will be able to view his application. Once the applicant taps on the view application button he will be able to see his application form in a PDF format. From that PDF the applicant will be able to clearly check his form before submitting it.
If the applicant has checked his application form and is satisfied with it, he can click on the Final Submit to the Ministry option.
Please Note
After clicking on the final submit option the applicant can not make any kind of modification in his application form.
Step 12– Once the applicant has submitted their application form, he will receive a Ministry of Home Affairs (MHA) file number. He will be redirected to the page for uploading documents.
Figure 14– Image showing the page where the applicant has to upload his documents.
Once the applicant has noted down the MHA number, he is required to tap on the close option to move further with the document submission.
Step 13– In this stage the applicant has to choose all the relevant document files which he needs to upload. Once the applicant has selected all the relevant files he will have to click on the upload button for the submission of documents. After this, the applicant will be able to see the list of documents that he has submitted.
Figure 15– Image showing the list of uploaded documents.
Step 14- Once the applicant has submitted all the necessary documents he will get to see a print application option. (look at the image above for better understanding). Through this print application option, the candidate can print and download his application form for future reference.
Step 15– Once all the above stages are complete, the candidate has successfully downloaded his application form. Candidate must move forward to make the payment in the payment window. Once the candidate taps on the payment option he will get to see a screen like this.
Figure 16-Image showing the payment page gateway.
The name of the applicant, the section under which he has filled his application form, the prescribed fee and his Ministry of Home Affairs file number will be displayed on the payment gateway screen.
The applicant can pay his fees through online mode at the SBI payment gateway. The applicant has been given the leverage to choose any kind of mode of payment such as debit card, credit card or net banking. Once the payment has been successfully made by the applicant he will receive a receipt from the system itself.
Step 16– After making the payment of the prescribed fee, the applicant has to submit a hard copy of his online application form and all the supporting documents that he has submitted to the office of the deputy commissioner or the district collector.
Step 17– Once the citizenship application has been accepted by the competent authorities of the government they will issue an in-principle acceptance letter to the applicant. The applicant will be sent an in-principle application through post, SMS, and email ID.
Once the applicant receives this application letter he will have to fill out any relevant form XI, X, or XII from this website, and the applicant is also required to submit all the essential documents to the office of the District Collector.
Figure 17- Image showing the apply options for form X/XII
Applicants are required to click on the Apply Form X/XI/XII option.
Step 18- After completing step 17 applicant will have to provide all the essential details required in the form and then tap on the Print and Modify option.
Figure 18- Image showing the modify and print option.
After tapping on the modify and print option, the applicant will receive an OTP on his email ID which he has provided while filing the application form. Then applicants will have to enter the OTP and tap on the submit and continue option.
Figure 19- Image showing the OTP verification page.
Step 19– Once the applicant enters the OTP he will be redirected to another page where he will be asked to fill in all the details.
Figure 20– Image showing the 1st page of personal form X
Step 20– Once the applicant fills in all the necessary details and taps on the save and next button he will be redirected to another page where the applicant will have to submit his signature and photograph.
Figure 21- Image showing the picture and signature upload page.
Step 21- Once the applicant has successfully uploaded his signature and photograph the next thing he has to do is to tap on the Form X final submit to the ministry option for the final submission.
Figure 22- Image showing the final submit option.
Step 22- Applicant has to click on the close option and make the payment of required fees.
Figures 23 & 24- Images showing the online payment option.
Step 23– In the last step the applicant is required to submit the hardcopy of Form X/XI/XII to the District Collectors office along with the payment receipt, valid renunciation certificate and all the signatures and photographs.
Once the Indian citizenship is granted to the applicant, his citizenship certificate will be sent to the District collector’s office.
People who can get Indian Citizenship through registration
Here we will be discussing the various persons who can apply for Indian citizenship through registration and we will also know about their eligibility criteria and documents.
Let us have a look at the list of those persons-
Any person of Indian origin
Any person who has or is been married to an Indian National
Any minor child
Any person whose parents are registered as Indian citizens
Any person whose either of parents was a citizen of independent India
Any person who is registered as an overseas citizen of India
Any foreigner through the process of naturalization
Any minor child in the Indian consulate
Now let us read in detail about all the eligibility criteria and documents required under each category of persons.
By a person of Indian Origin
Section 5 (1) (a) of the Indian Citizenship Act talks about the registration of Indian citizenship by any person of Indian origin who was ordinarily a resident of India for seven years before filing their application for registration. Let us have a look at the eligibility criteria and documents required to apply under this category.
Eligibility criteria
The eligibility criteria are as follows
Applicants must have lived in India for one year immediately before filing an application for registration.
Applicants must have lived in India for a period of eight years immediately preceding the period of one year for at least 6 years.
Please Note
Under this subsection, a person will be deemed an Indian citizen if he or either of his parents were born in the territory of undivided India which later became part of India after the 15th of August, 1947.
List of Documents
Photocopy of a valid foreign passport ID
Photocopy of a valid residential permit
Any certificate proving the date of birth of parents.
Tabular Representation of Image and Document Uploading Criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
Applicant has to uploadDocument proving the Indian origin of parentsA foreign passport copy attachedAny copy of the valid residential permit
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image
A person who has or has been married to an Indian National
Section 5 (1) (c) of the Indian Citizenship Act talks about the registration of Indian citizenship by any person of Indian origin who has been married to an Indian National who was ordinarily a resident of India for seven years before filing their application for registration. Let us have a look at the eligibility criteria and documents required to apply under this category.
Eligibility criteria
The eligibility criteria are as follows
Applicants must have lived in India for a period of one year immediately before filing an application for registration.
Applicants must have lived in India for a period of eight years immediately preceding the period of one year for at least 6 years.
List of Documents
Photocopy of a valid foreign passport ID
Photocopy of a valid residential permit
Any document proving the nationality of the husband/wife
One copy of the marriage certificate which was issued by the registrar of the marriage department
Tabular Representation of Image and Document Uploading Criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
Applicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitAny proof of evidence proving the Indian nationality of the spouseCopy of the marriage certificate issued by the registrar’s officeIf any of the spouses is in a government office then any document proving such employment should be produced
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image
A minor child
Section 5 (1) (d) of the Indian Citizenship Act, 1955 talks about the registration of Indian citizenship by a minor child whose parents are of Indian origin.
Eligibility criteria
The eligibility criteria are as follows
Parents of the minor child should be of Indian origin।
Please Note
Any person who has not attained the age of 18 years is considered as a minor।
List of Documents
Photocopy of a valid foreign passport ID
Photocopy of a valid residential permit
Any document proving the Indian nationality of both parents
If a minor has a guardian then the proof of guardianship is to be produced
Tabular Representation of Image and Document Uploading Criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
Applicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitAny proof of evidence proving the Indian nationality of both parents
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image
By a person whose parents are registered as Indian citizens
Section 5 (1) (e) of the Indian Citizenship Act, 1955 talks about the registration of Indian citizenship by any person whose parents are registered as Indian Nationals.
Eligibility criteria
The eligibility criteria are as follows
The person applying for citizenship should be an adult and of capacity
Parents must be registered as Indian Citizens under the Sections 6 (1) and 5 (1) (a)
List of Documents
Photocopy of a valid foreign passport ID
Photocopy of a valid residential permit
Copies of the certificate of Indian citizenship of both the parents provided by the Indian government under section 6 (1) and 5 (1) (a) is to be produced
Tabular representation of image and document uploading criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
Applicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitCertificate of citizenship of both parents
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image
By a person whose either of the parents were a citizen of independent India
Section 5 (1) (F) of the Indian Citizenship Act talks about the registration of Indian citizenship by any person who or any of his parents were nationals of Independent India.
Eligibility criteria
The eligibility criteria are as follows
The person applying for citizenship should be an adult
Any of the applicant’s parents should have remained citizens of Independent India
The parents of the applicant must have been residing in India for a period of 12 months immediately before filing the application for citizenship registration.
List of Documents
Photocopy of a valid foreign passport ID
Photocopy of a valid residential permit
Proof of evidence proving that either of the applicant’s parents was citizens of independent India
Tabular Representation of Image and Document Uploading Criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
Upload:A foreign passport copy attachedAny copy of the valid residential permitAny document proving the Indian origin of either of the parents of the applicant.
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image
Any person who is registered as an overseas citizen of India
Section 5 (1) (g) of the Citizenship Act talks about the registration of Indian citizenship by any person who is an Overseas citizen of India under section 7A of the Citizenship Act.
Eligibility criteria
The eligibility criteria are as follows
The person applying for citizenship should be an adult.
The applicant must be registered as an Overseas citizen of India for 5 years.
Applicants must be living in India for 12 months before filing the application.
List of Documents
Photocopy of a valid foreign passport ID
Photocopy of the certificate of registration proving the applicant is an Overseas Indian citizen under Section 7A
Tabular Representation of Image and Document Uploading Criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
Applicant has to uploadA foreign passport copy attachedA copy of a legitimate OCI card with a validity of 5 years
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image
Any foreigner through the process of naturalisation
Section 6 (1) of the Indian Citizenship Act, of 1955 talks about the registration of Indian citizenship by any foreigner through naturalisation
Eligibility criteria
The eligibility criteria are as follows
The person applying for citizenship should be an adult
The person applying for citizenship should not be an illegal migrant
The applicant has lived in India or served in any governmental office for a period of one year immediately before filing the application.
During the term of 14 years immediately preceding the period of one year, the applicant must have lived in India or should have been in any government office, for a duration amounting in the aggregate to not less than 11 years
Applicant must be of good character
Applicant must possess enough knowledge of a language which is specified in the 8th schedule of the Indian Constitution
List of Documents
Photocopy of a valid foreign passport ID
Photocopy of a valid residential permit
Photocopy of the original bank challan amounting to fifteen hundred rupees that is deposited in SBI bank under the heading of 0070 other administrative services
Applicant needs to submit one affidavit from his side and two affidavits from any two Indian nationals, who will testify the character of the applicant in the language mentioned in the application form.
2 certificates of language providing certification for the applicant’s knowledge in any of the Indian languages which are mentioned in the 8th schedule of the Indian Constitution.
2 newspaper cuttings of different states notifying the intention of the applicant to apply for citizenship in the language mentioned in the application form.
Tabular Representation of Image and Document Uploading Criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
Applicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitOne affidavit from the applicant himself and two affidavits and two affidavits from any two Indians testifying about the applicant’s characterTwo language certificatesTwo newspaper cuttings
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image
By any minor child at the Indian Consulate
Any person who files for the registration of citizenship under section 4 (1) of the Indian Citizenship Act, 1955, of his minor child who is born outside the premises of India shall provide a declaration proving that the child does not hold the passport of any other nation.
Eligibility criteria
The eligibility criteria are as follows
The child should not hold a passport of any other country
List of Documents
Photocopy of the child’s birth certificate
Photocopy of the passports of both parents
A copy of the citizenship certificate should be also provided if the citizenship has been obtained through registration or naturalization.
Photocopy of parents’ marriage certificate
Declaration letter stating that the child doesn’t hold the passport of any other nation.
Tabular Representation of Image and Document Uploading Criteria
Criteria for uploading images
Criteria for uploading documents
Passport-size photograph of the applicant
An applicant has to uploadChild’s birth certificateParents passportParents marriage certificateA copy of the citizenship certificate should also be provided if the citizenship has been obtained through registration or naturalization.
Dimension of the photo should be 100*120 (width and height)
All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KB
Each document can consist of several pages
The image which is to be uploaded should be in a JPG format
The size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image
Tabular representation of essential information about application forms
These are the essential information that every applicant must know if he is thinking of applying for an Indian Citizenship.
Form details
Form name
Application form for the registration of India Citizenship made by a person of Indian origin under section 5 (1) (a) of the India Citizenship Act 1955.
Form II under section 5 (1) (a)
Application form for the registration of Indian Citizenship under section 5 (1) ( c ) of the Indian Citizenship Act, 1955 made by a person who is or has been married to an Indian Citizen.
Form III under section 5 (1) (c)
Application form for the registration of a minor child under section 5 (1) ( d ) of the Indian Citizenship Act, 1955
Form IV under section 5 (1) (d)
Application form for the registration of Indian Citizenship made by a person under section 5 (1) (e) of the Indian Citizenship Act, 1955, when both the parents of the applicant are registered as Indian Citizens under sections 6 (1) and 5 (1) (a)of the Indian Citizenship Act, 1955
Form V, under section 5 (1) (e)
Application form for the registration of Indian Citizenship made by a person under section 5 (1) (f) of the Indian Citizenship Act, 1955, who himself or any of his parents were nationals of Independent India and has also lived in India for a duration of 12 months before filling an application.
Form VI, under section 5 (1) (f)
Application form for the registration of Indian Citizenship made by a person under section 5 (1) (g) of the Indian Citizenship Act, 1955, made by a registered OCI under section 7A
Form VII, under section 5 (1) (g)
Application form for naturalization as an Indian Citizen under section 6 (1) of the Indian Citizenship Act, 1955
Form VIII, under section 6 (1)
Tabular representation of sections and required documents for availing citizenship of India
Here we have mentioned the list of sections and all the essential documents that an applicant needs to submit in the process of availing Indian Citizenship.
Important Documents
Name of the section
Photocopy of a legit foreign passportPhotocopy of a legit residential permitEvidence proving the DOB of the parentsDeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act”
Form II under the section 5 (1) (a)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitAny document proving the nationality of spouseMarriage certificateDeclaration of allegiance as mentioned in the form to be made in the collector’s office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act”
Form III under section 5 (1) (c)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitAny document such as birth certificate or passport which helps in proving the nationality of both the parentsDeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act”If the applicant has a guardian then proof of guardianship should also be submitted
Form IV under section 5 (1) (d)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitA copy of Indian Citizenship Certificate of both of both the parents of applicant issued under the section 5 (1) (a) or 6 (1) of the Indian Citizenship Act, 1955Declaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act
Form V under section 5 (1) (e)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitAny document proving that either of the parents of the applicant were a citizen of independent IndiaDeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act
Form VI under section 5 (1) (f)
Photocopy of a legit foreign passportPhotocopy of certificate of registration as the OCI u/s 7ADeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act
Form VII under section 5 (1) (g)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitPhotocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship ActApplicant needs to submit one affidavit from his side and two affidavits from any two Indian nationals, who will testify the character of the applicant in the language mentioned in the application form.2 certificates of language providing certification for the applicant’s knowledge in any of the Indian languages which is mentioned in the 8th schedule of the Indian Constitution.2 newspaper cuttings of different states notifying the intention of the applicant to apply for citizenship in the language mentioned in the application form.
Form VIII under section 6 (1)
Please Note
All the applicants applying for Indian citizenship are advised to read the provisions of the Indian Citizenship Act, 1955 and all the rules contained in it before filing an application for Indian Citizenship.
Important instructions for filling out an Indian citizenship form
These are some of the instructions that every applicant must follow while filing the application form for Indian Citizenship.
The applicant shall select only that application form for which he is eligible.
The applicant must keep all the supporting documents ready before filing the registration application.
Once the applicant finishes the first stage he will be provided with a temporary file number. The applicants must note down their temporary file number if they want to modify their application later.
Once the applicants submit their form to the Ministry of Home Affairs they will be provided with a MHA file number. The applicants must note down their MHA number for future reference or to track the status of their application.
Applicants must always take out a printout of their application form and store it with them for future reference.
Applicants must cross-check their application before submitting it to the ministry of Home Affairs because once the form is submitted the applicant can not make any changes in the application form.
Applicants must always check whether they have filled all the necessary information in their application or not.
If the applicant is facing any issue during filing an application then the applicant can send an email to [email protected] mentioning the problems that he is facing.
If the applicant has any kind of query or doubts then he can send an email to [email protected]
Post submission of application form in the collector’s office
After following all the procedures that are mentioned under Rule 11 and Rule 12 of the Indian Citizenship Rules, 2009 (rules 11 and 12 are mentioned below in this article). The application filed by the applicant will be forwarded by the concerned commissioner to the MHA by the concerned state government.
After checking the applicant if the authority is satisfied that the application is complete and doesn’t have any issues, the applicant will be informed that his/her application has been accepted through the state government.
After the application of the applicant has been accepted by the central government, the applicant will be asked to furnish a few things to the state government. Such as
Renunciation certificate of his foreign citizenship
Challan of the paid fees as mentioned in the letter of acceptance
3 passport-size photos attested by a gazetted officer in the back
3 specimens of the applicant’s signature
Personal details of the applicant in the form X at 2009 citizen rules
After this, the certificate of citizenship will be forwarded to the state government who after finishing all the formalities mentioned in citizenship rules, 2009 will provide the same to the applicant.
Modes of losing Indian citizenship
The Indian Citizenship Act provides different methods through which a person can get an Indian Citizenship but at the same time, it also lays down three methods by which an Indian citizen can lose his/her Indian citizenship. These methods are namely: termination, renunciation, and deprivation. The three methods have been explained in detail below:
Termination of Indian citizenship
The termination of Indian citizenship takes place when an Indian citizen takes up the citizenship of another country. On such occasions, the Indian citizenship of such a person terminates automatically. This clause has been provided in Section 9 of the Citizenship Act. However, this provision is not applicable in times of war and if any such case arises during a war, the discretion shall remain with the government.
Renunciation of Indian citizenship
If any adult Indian citizen makes a declaration in the prescribed manner mentioning the renunciation of his citizenship, such declaration will be registered by the competent authority and after such kind of registration is done the person will lose his Indian citizenship. But,
If the applicant has made such a declaration during any war in which India was also involved then in such cases the registration of renunciation will be withheld until the Central Government gives any direction.
If a person loses his citizenship under sub-section 1, then in such circumstances the minor child of such person will also lose its citizenship. But the child can get his citizenship back if after becoming an adult he makes a declaration to resume his Indian citizenship.
Deprivation of Indian citizenship
Section 10 of the Indian Citizenship Act, 1955 provides that any person who has attained Indian citizenship through naturalization or registration can be deprived of his Citizenship if the central government passes an order in that regard.
The Central government can pass any order and deprive the citizenship of any such citizen if it thinks that –
The certificate of citizenship was obtained through any kind of illegal method such as concealment of any fact, fraud or false representation.
Person after receiving the Citizenship certificate has been disloyal towards the Indian Constitution
During the time of any war in which India was also involved such citizen was involved with any kind of business with the enemy which was not good for India
The citizen after he obtained the citizenship of India was given imprisonment in any country for a period of 2 years
The citizen has been living outside India for a period of 7 years and during those seven years he has neither been a student at any educational institution outside India nor he was in any Indian Government office of an International organization of which India is also a part.
Frequently Asked Questions (FAQs)
These are some of the most common doubts that every applicant faces while getting an Indian Citizenship.
Who is eligible to apply for Indian citizenship?
Any foreigner who was eligible for becoming an Indian Citizen on 26th February 1950 or was an Indian citizen after any time from 26th February 1950 or if the person belonged to a territory of India which became the part of India after 15th August 1947 and their children and grandchildren, provided that their country of citizenship allows dual citizenship under any local law, is able to be registered as an OCI. and the minor children of such person are also eligible to become an OCI. but if the applicant has been a citizen of Pakistan or Bangladesh at any point in time then they won’t be eligible for OCI.
How can we obtain Indian citizenship?
Indian citizenship can be obtained through naturalization or by online registration available for different categories.
Who was eligible to become an Indian Citizen from the period of 26th January 1950?
Any individual who or his grandparents and parents were born in India as mentioned in the Government of India Act1935, and who was living anywhere outside India was eligible to become an Indian Citizen from 26th January 1950.
How many territories became part of India after 15th August 1947?
The territories which became the part of India after 15h August 1947 are Sikkim, Pondicherry, Dadra and Nagar Haveli, Goa, and Daman and Diu.
Can the wife or husband of the eligible person apply for OCI?
Yes, any of the spouses is eligible in her own capacity to apply for OCI.
Can a minor child apply for Overseas Citizen of India?
Yes, if any of the parents is eligible then the minor child can also apply for OCI.
What documents do I need to submit with the registration application?
These are the documents which an applicant needs to submit along with the application
Any document proving the citizenship of the applicant
Proof of relationship as a grandparent or parent
Photocopy of the passport
Photocopy of the domicile certificate provided by the competent authority
PIO card holders should submit a photocopy of their PIO card
Any other proof
What all documents would come under the category of “Any other proof”?
Documents such as land ownership certificates, school certificates, birth certificates come under the category of any other proof.
How many application copies should be submitted?
Each applicant has to submit a duplicate form of his application
Can I withdraw my application after submitting it?
No an application can’t be withdrawn after its submission, thus it is advised for each applicant to be very sure while filing an application
Can I modify my citizenship registration application?
Yes, the applicants can modify their application with the help of a temporary ID which is provided to them at the initial stages of filling the application form.
What is the use of a temporary ID?
The temporary application ID is used to modify an application and also to complete and submit the partially filled registration application, this can be done only when the applicant has successfully saved his personal details after filling out the application form.
What will happen if I furnish the wrong information in my application form?
There will be an enquiry conducted by the concerned authorities to check whether the information was published voluntarily or by mistake. And if it is found that wrong information was filed voluntarily by the applicant then his registration as OCI will be cancelled and he will also be blacklisted for any kind of entry in India.
How long does it take for registration as OCI?
After filing 30 days of the application if no adverse information is present against the applicant . but if there is any kind of adverse information present against the applicant then in such cases it can take about 120 days.
What are the modes of losing an Indian citizenship?
An applicant can lose his Indian citizenship through three modes. And those three modes are termination, renunciation and deprivation.
From where can I fill out the application form for Indian Citizenship registration?
You can fill out an online application form for citizenship registration from the website of the Foreigners Division Ministry of Home Affairs Government of India. Tap here to visit this website.
Can I get Indian Citizenship if I marry an Indian citizen?
Yes, under section 5 (1) ( c ) of the Indian Citizenship Act, 1955 if a person marries someone of Indian origin can also apply for citizenship of India through registration.
Can a minor child at the Indian consulate obtain citizenship in India?
Yes, a minor child at the Indian consulate can also be registered as an Indian citizen if the parents prove that the minor does not hold a passport from any other nation.
Conclusion
Getting an Indian Citizenship is not a very difficult task if you know all the whereabouts of filling out the application form for Indian Citizenship. The most important thing that an applicant needs to figure out is under which category he is eligible to apply, once this thing is done the applicant can easily fill out the application form.
This article has exhaustively covered all the aspects of how a foreigner can acquire an Indian Citizenship. It was an ultimate guide to fixing all the doubts and queries of the applicant. Read this article once more if you are facing any kind of trouble in filing the application form and your doubts and queries will be settled.
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We have a long history of wars and conflicts. The history of war goes way back to 1300 B.C. If we exclude the religious or so-called mythological wars of the Ramayana and Mahabharata, which go back millions of years. We have had continuous wars and conflicts since the Trojan War, and now the question arises as to why wars or conflicts happen. What is the reason? Some anthropologists who study wars and violence claim that “violence is embedded in our DNA” and that it is human behaviour, but some anthropologists think that war is a product of social and environmental factors rather than solely genetic inheritance.
Well, this question is still unanswered. But it’s a sad truth that the world is continuously at war. According to a study, conflict took place every year of the 20th century; the world was free from the violence caused by war for only very short periods. It has been estimated that 187 million people died as a result of war from 1900 to the present. The actual number is likely far higher.
What are the different types of conflicts? Conflict is a state of disagreement or argument between two or more parties. It can arise due to opposing ideas, beliefs, values, or interests. Several types of conflicts exist, such as territorial conflict, economic conflict, ideological conflict, resource conflict, ethnic conflict, and religious and border conflicts. Conflicts bring violence with them, sometimes in the form of wars, terrorism, or separatist movements, but what is more sinister than wars are war crimes. By definition, war crime is, in international law, a serious violation of the laws or customs of war as defined by international customary law and international treaties.
Types of war crimes
In Article 8 of its Elements of Crimes document, the ICC lists the different types of war crimes that are covered by the Rome Statute, including but not limited to the war crimes of:
Actions like wilful killing of soldiers and civilians, torture, mutilation, or inhumane treatment.
Any kind of biological, medical, or scientific experiment that causes death or seriously endangers the lives of soldiers or civilians.
Destruction and appropriation of property in the country.
Compelling service in hostile forces.
Denying a fair trial.
Sentencing or execution without trial.
Unlawful deportation, transfer, or confinement of people.
Taking hostages.
Attacking civilians or civilian properties.
Attacking people and property of humanitarian assistance or peacekeeping missions.
Improper use of a flag of truce or distinctive emblems of the Geneva Conventions.
Employing poison, prohibited gases, liquids, materials, or devices.
Rape, sexual slavery, or enforced prostitution.
The use of child soldiers.
Several common elements that are required to be present in addition to committing the above acts include:
The victim/s were protected under one or more of the Geneva Conventions of 1949
The perpetrator was aware of the factual circumstances that established that protected status
The conduct took place in the context of and was associated with an international armed conflict
The perpetrator was aware of factual circumstances that established the existence of an armed conflict
The document further expands on additional specific elements that need to be present per crime type.
Some case studies regarding war crimes
We will take some of the recent happenings of war crimes happening as of now.
Israel – Palestine conflict
Israel – Palestine conflict is a decades-old struggle between Israel and Palestine. The conflict is one of the prime examples of resource and religious conflict. The roots of the conflict date back to the early 20th century, when the British controlled the region of Palestine after World War I. The British, through the Balfour Declaration, a letter by the British foreign minister, supported the establishment of a Jewish country in Palestine. This led to increased Jewish immigration to the region, which in turn led to tensions with the Arab population. In 1948, the British withdrew from Palestine, and the State of Israel was declared. This led to the first Arab–Israeli war, which resulted in Israel gaining control of much of the territory that had been designated for a Palestinian state. The war also resulted in hundreds of thousands of Palestinians being uprooted and forced into refugee camps. According to UN estimates, Israeli military attacks during the conflict in May claimed the lives of 260 Palestinians, including at least 129 citizens; 66 of them were minors. 1,948 Palestinians, including 610 children, were hurt by Israeli forces, according to the Gaza Health Ministry. According to Israeli officials, “several hundred” people were injured in rocket and mortar assaults carried out by Palestinian armed organisations, which also claimed the lives of 12 civilians, including two children and one soldier. In addition, several Palestinians perished in Gaza as a result of armed groups’ rockets falling short and landing there. There is news of rape and several other war crimes coming from the Gaza strip.
Russia – Ukraine War
On February 24, 2022, Russia attacked Ukraine, causing chaos in the country. Several Russian battalions advanced in Ukraine. The history of Russia—the Russia-Ukraine war goes back. They have had a continuous tussle since then, whether it’s Soviet advancement in Ukraine or the Crimean War in 2014, a recent war that has continuously been going on since Feb 2022. Ukraine, the UN, and other countries like the USA and the EU continuously make allegations against Russia and Russian President Vladimir Putin for war crimes in Ukraine and Crimea. The war crimes allegations against the Russian armed forces include brutal execution of civilians and brutal rape of women and children, as well as denying humanitarian aid to Ukraine. The International Criminal Court [ICC] has been investigating war crimes and a crime against humanity in Ukraine carried out as far back as 2013 before Russia illegally annexed Crimea. The International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin and Maria Lovova-Belova, Russia’s Commissioner for Children’s Rights, in March 2023. Russia is extremely unlikely to sign the ICC since it is not a signatory. So it is highly unlikely to extradite Putin and Ms. Maria.
Sudan Crisis
In April, the conflict erupted in Sudan’s capital, Khartoum. The unleashed ethnic violence in Darfur uprooted more than three million people and many fled to neighbouring countries. Tensions started to rise between the Sudanese armed forces and the rapid support force after they jointly orchestrated a coup in October 2021. Many people are affected by the conflict, a mass outbreak of cholera is also seen in Sudan, extensive war crimes are seen in the conflict between Sudanese armed forces and the rapid support force; and a report documented mass casualties of civilians by the attacks of both forces, including details of sexual violence against women and girls, targeted attacks on civilian properties such as hospitals and churches and boundless looting. Some of the violations documented, such as attacks targeting civilians, attacks on humanitarian infrastructure, rape and other sexual violence, and pillage, amount to war crimes. The report focuses primarily on Khartoum and West Darfur.
Socio-economic impacts of war and war crimes
War and war crimes have serious impacts on the society and economy of countries engaged in war and conflict. When it comes to the economic impacts of war, war brings serious negative impacts on countries’ economies, including a shortage of funds, a rise in cost-push inflation, a decline in human population, a rise in debts, devastating infrastructure, etc.
More than the economic loss, the countries face a loss of society and peace within their territory. War crimes have a highly negative impact on society by increasing crimes of corruption. It is commonly seen that post-war there is a decline in death but a rapid increase in street crime and homicide. Crimes like domestic violence, trafficking, etc. increase with an increase in criminal nexus in the countries involving other international crimes and criminals. Crime against women rapidly increases. Women and children are often the prime victims of war crimes. Crimes like sexual slavery, forced prostitution bondage slavery are commonly documented during wartimes
Sexual violence as a weapon of war
We have often seen rape as a war strategy throughout the history of conflicts. Since the First World War, there has been a dramatic shift in casualties from military victims to civilian victims. In today’s conflicts, most victims are women and children due to the rise of total warfare, where no distinction is made between civilians and (armed) combatants. However, the exact number of victims of rape and other sexual violence during armed conflict is hard to determine. However, it is estimated that, in the Rwandan genocide of 1994 alone, between 250,000 and 500,000 women and girls were sexually assaulted by fighters. What is another well-known instance of mass rape during an armed conflict? It occurred during the 1992–1995 Bosnian War. Global awareness was raised for the so-called “rape camps,” where an estimated 20,000 to 50,000 women were routinely assaulted during the fighting. Rape has become a war strategy throughout the history of conflicts.
According to some experts, the same is done to desensitise and destabilise society, making the effect long-lasting because rape has a long-lasting effect on victims and society. It is done to break the morale of the population and intimidate them. Rape warfare is significantly used in almost every armed conflict after World War 2, where the Japanese imperial army raped more than 50000 women by calling them “comfort women” and the armed forces raped and tortured German women. From world wars to Russia and Ukraine, war rape is a weapon of war. Which comes under the category of a war crime and has a negative, long-lasting effect on society.
Legislation on war crimes
There are many laws and conventions formed on war crimes after World War 2. Some are discussed below:
Geneva Convention
The Geneva Conventions are a set of international accords enacted in Geneva between 1864 and 1949 to regulate the impact of war on troops and civilians. Two more protocols to the 1949 accord were added in 1977. The Geneva Conventions are regulations that only apply during times of armed conflict or war, and they aim to safeguard those who are not or no longer involved in battle. During times of war and armed conflict, the Geneva Conventions apply to states that have ratified them. Common Articles 2 and 3 specify the details of applicability.
The Hague Conventions
The Hague Conventions of 1899 and 1907 represent significant milestones in the development of international law, marking the first official codifications of wartime laws and war crimes in secular international law. These conventions, negotiated at two peace conferences held in The Hague, Netherlands, have had a profound impact on the regulation of armed conflicts and the protection of civilians and combatants alike.
The second Hague Conference, held in 1907, built upon the achievements of the first conference and further expanded the scope of international law governing armed conflicts. It adopted thirteen conventions and one declaration, covering a wide range of issues, including the pacific settlement of international disputes, the rights and duties of neutral powers, and the laws and customs of naval warfare. Notably, the 1907 Hague Convention Respecting the Laws and Customs of War on Land remains one of the most comprehensive and influential treaties on the conduct of hostilities.
The Hague Conventions have had a lasting impact on the development of international humanitarian law and have served as a foundation for subsequent treaties and conventions. They have helped to establish norms and standards for the conduct of warfare, aimed at minimising suffering and protecting the rights of individuals and populations affected by armed conflicts.
While the outbreak of World War I in 1914 prevented the convening of a third Hague Conference, the legacy of the previous two conferences continued to shape the evolution of international law. The experiences of World War I and subsequent conflicts led to the adoption of additional treaties and conventions, such as the Geneva Conventions, which further elaborated on the protection of civilians, prisoners of war, and other vulnerable groups during wartime.
The Hague Conventions of 1899 and 1907 stand as testament to the efforts of the international community to regulate warfare and uphold the principles of humanity and justice.
International Humanitarian Law
International Humanitarian Law, commonly known as the laws of war, is a set of rules that govern the conduct of armed conflicts and protect the rights of individuals during times of war. These laws are aimed at minimising the suffering and harm caused by war and ensuring that those who carry out or participate in armed conflicts adhere to certain standards of behaviour. IHL is based on several key principles, including the distinction between combatants and non-combatants, the prohibition of certain methods of warfare, and the obligation to provide assistance and protection to those affected by armed conflict.
One of the fundamental principles of IHL is the distinction between combatants and non-combatants. Combatants are defined as individuals who are directly participating in hostilities, while non-combatants include civilians, medical personnel, and aid workers. This distinction is crucial, as it ensures that non-combatants are not targeted or harmed during armed conflicts.
Another important principle of IHL is the prohibition of certain methods of warfare. These include the use of chemical and biological weapons, indiscriminate attacks on civilian populations, and the use of torture and other forms of cruel, inhuman, or degrading treatment. These prohibitions are aimed at preventing unnecessary suffering and harm to individuals and communities.
IHL also imposes obligations on parties to armed conflicts to provide assistance and protection to those affected by the conflict. This includes providing medical care to the wounded and sick, ensuring access to food, water, and shelter for civilians, and protecting individuals from sexual violence and other forms of abuse.
The enforcement of IHL is carried out through a combination of mechanisms, including national and international courts, military tribunals, and international organisations. Violations of the IHL can result in individual criminal responsibility, including the prosecution of war crimes and crimes against humanity.
War Crimes Act
The Global Magnitsky Human Rights Accountability Act, also known as Senate Bill 4240, was passed by the United States Congress in 2020. This significant piece of legislation expanded the US government’s jurisdiction to prosecute individuals involved in war crimes, regardless of their nationality or where the crimes were committed.
The Act marked a major step forward in the fight against impunity for war criminals. It empowered the US government to freeze the assets of and deny visas to individuals credibly accused of committing war crimes, torture, or other gross human rights violations. This powerful tool allows the US to hold accountable those who perpetrate these heinous crimes, even if their own countries are unwilling or unable to do so.
The Global Magnitsky Act has already been used to target a number of war criminals and human rights abusers. In 2021, the US government imposed sanctions on several Russian officials and military personnel responsible for the torture and killing of civilians in Syria. The Act has also been used to target Chinese officials involved in the mass detention and persecution of Uyghur Muslims in Xinjiang province.
The Global Magnitsky Act is a powerful tool in the fight against impunity for war crimes and human rights abuses. It sends a clear message that the US will not tolerate these heinous crimes, and it provides a means to hold accountable those who perpetrate them.
Currently, the federal war crimes statute provides federal jurisdiction over war crime offences committed anywhere (i.e., inside or outside the United States) if the victim or offender is a member of the Armed Forces of the United States or a U.S. citizen.
International Criminal Court
The International Criminal Court (ICC) serves as a crucial institution in the global pursuit of justice. Established in 2002 by the Rome Statute, the ICC aims to address the most heinous crimes of international concern, which include genocide, war crimes, crimes against humanity, and the crime of aggression. The International Criminal Court (ICC) investigates, issues warrants, and prosecutes individuals charged with serious crimes of concern to the international community, such as genocide, war crimes, crimes against humanity, and aggression. As the highest appellate and final resort court, it attempts to supplement, not replace, national courts. It is governed by an international convention known as the Rome Statute. The Court operates on the principle of complementarity, recognising that national courts have the primary responsibility to investigate and prosecute international crimes. However, when national courts are genuinely unable or unwilling to do so, the ICC may intervene. This approach ensures that the ICC complements national efforts to ensure accountability, rather than replacing them.
The ICC’s mandate is particularly significant in addressing crimes that transcend national borders and affect the international community as a whole. For instance, the ICC has played a crucial role in investigating and prosecuting individuals responsible for war crimes committed during the Darfur conflict in Sudan and the Lord’s Resistance Army insurgency in Uganda. These cases demonstrate the ICC’s ability to hold perpetrators of serious crimes accountable, even when national courts are unable or unwilling to do so.
The ICC’s commitment to justice extends beyond issuing warrants and prosecuting individuals. The Court also works to ensure that victims of international crimes receive justice, redress, and reparations. Through its Victims and Witnesses Unit, the ICC provides support to victims, including psychological assistance, legal representation, and opportunities to participate in the proceedings.
Rome Statute
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy, on July 17, 1998, and enforced on July 1, 2002. As of November 2023, 124 states are parties to the statute. Among other things, it defines the court’s function, jurisdiction, and structure.
Case laws on war crimes
Abd-Al-Rahman Case
The case against Ali Kushayb, also known as Ali Muhammad Ali Abd-Al-Rahman, is currently ongoing at the International Criminal Court (ICC). He is suspected of committing 31 counts of war crimes and crimes against humanity in the Darfur region of Sudan between 2003 and 2004.
Al-Rahman is accused of being a senior commander in the Janjaweed militia, a Sudanese government-backed group responsible for widespread atrocities in Darfur. The charges against him include murder, rape, torture, and other inhumane acts.
The Darfur conflict began in 2003 when rebel groups took up arms against the Sudanese government. The government responded by unleashing the Janjaweed militia on the civilian population in Darfur. The conflict has resulted in the deaths of an estimated 300,000 people and the displacement of millions more.
Al-Rahman’s trial is a significant step in the pursuit of justice for the victims of the Darfur conflict. He is the first person to be tried by the ICC for crimes committed in Darfur. His trial is also a test of the ICC’s ability to hold perpetrators of serious crimes accountable.
The trial has been ongoing since 2015 and is expected to continue for several more months. Al-Rahman has pleaded not guilty to all charges. If convicted, he could face a sentence of life in prison.
The Darfur conflict is a complex issue with a long history. The trial of Ali Kushayb is an important step in addressing the legacy of the conflict and bringing justice to the victims.
Al Mahdi Case
The Prosecutor vs. Ahmad Al Faqi Al Mahdi’s trial began on August 22, 2016, in Trial Chamber VIII of the International Criminal Court (ICC) in The Hague, Netherlands. Mr. Al Mahdi admitted responsibility for the war. crime involving the demolition of sacred and historical sites in Timbuktu, Mali, on around June 30, 2012, and July 11, 2012. This is the first international trial that centres on the demolition of historical and sacred sites, as well as the first case before the ICC in which the accused has acknowledged culpability. Found guilty and sentenced to 9 years of imprisonment.
Conclusion
Humans tend to have conflict. It may be due to nature, genetics, or a situation-based reaction to it. But what comes with conflicts are war crimes. Even in recent conflicts, we have witnessed war crimes, and they don’t end with the conflicts; they have their effect long after the conflicts by crippling the economy and increasing street crimes, permanently traumatising the population. War crimes left dents that never got filled. Society has been working towards reducing, controlling, or stopping war crimes since the 1800s by making conventions, legislation, and authorities. We have an international criminal court for bringing justice to victims and punishments to culprits. But is it working the way it was intended to?
For centuries, man has been trying to resolve basic questions, who am I? Why am I in this world? What is the ultimate goal of life? Does it mean accumulating wealth or gaining name, fame, and success? Or is there a deeper dimension to our existence that sounds to us from within? This intrinsic search for meaning and connection forms the core of spirituality.
Spirituality vs. religion
Spirituality is different from religion. It is a broader concept. Religion is a set of beliefs shared by a particular group of people. Spirituality encompasses religious beliefs exploring the essence of human existence.
Is spirituality a religious doctrine or a hidden chamber within ourselves?
In the commotion and uncertainty of modern life, amid the cacophony of daily demands and distractions, people are trying to seek solace and meaning beyond the material realm. This inner urge for connection and deeper understanding leads people to spirituality.
Spirituality is one’s quest to understand one’s relationship with the ultimate. It involves a search for meaning in life. Spirituality comes into play when people try to find inner peace. Spirituality is the belief that there is something greater than me or that we are a part of the divine. Spirituality is an inward journey of the soul. It helps a person discover life’s ultimate goal. It covers a broad spectrum of beliefs, practices, and experiences that try to connect individuals with ultimate reality.
Elements of spirituality
Spirituality develops a deep sense of connection with oneself and the universe. It helps in understanding the interrelationship of all beings and the inherent unity of existence.
Spirituality is a quest for meaning and purpose. It helps to answer fundamental questions about the purpose of life and the mysteries of existence.
Spirituality often involves experiences of transcendence – moments when individuals surpass their ordinary limitations and touch upon something sacred or divine.
Spirituality aims at inner transformation. It is a journey of self-discovery and evolution towards higher states of consciousness and being.
Spiritual discipline : pathway to inner awakening
Discipline is a bridge between human goals and achievement. It involves practising self-control & self-improvement.
Spiritual discipline is the deliberate engagement in practices that nurture our connection to the sacred. It is a path that takes us close to the symphony of souls. It is a consistent effort made by a person to connect with divine or ultimate reality. It can be prayer, meditation, listening to the inner voice, and generosity, which help us understand our very existence in this world. The focus of conventional forms of discipline is mainly on external behaviours. On the other hand, spiritual discipline aims at purity of mind, awakening the heart, and expanding the soul. Thus, it targets the inner dimensions of consciousness. Spiritual discipline is a practice, not a prescription, that strengthens our spirit, refines our perception, and guides us towards that flicker of inner light.
Principles of spiritual discipline
Self-reflection: Spiritual discipline begins with introspection. It is the process of looking into the inner world or examining one’s thoughts, emotions, and beliefs with consciousness and honesty.
Surrender: The act of complete surrender is central to spiritual discipline. One can move one step forward into the field of spirituality by total surrender to God. Reducing ego, egoic desires, attachments, and illusions will help one open oneself to the divine spirit.
Presence: Spiritual discipline emphasises living in the moment. It describes the importance of being fully attentive and engaged in the present moment, free from distractions and preoccupations.
Gratitude: Being grateful is fundamental to spiritual discipline. It fosters a sense of humility, appreciation, and reverence for the blessings of life.
Compassion: Spiritual discipline extends beyond self-interest to encompass compassion and empathy for everyone. It involves acts of kindness, generosity, and service towards all beings.
Different philosophies offer different perspectives on life
Hinduism
Hinduism is the oldest religion in the world. It revolves around the concept of “Moksha,” or liberation from the cycle of birth and rebirth due to karmic bondage. Moksha liberates the soul from the pain of the material world. Bhakti Marg or the path of devotion; Dyan Marg, the path of knowledge; and Karma Marg or the path of self service and meditation, are the four paths to achieving Moksha.
Christianity
God is the ultimate reality for Christians. They believe in living life guided by love, kindness, and faith. The teachings of Christ, prayer, and service are ways to union with God. Their highest aim is the final bliss of heaven away from life in space, time, and matter.
Islam
Islam emphasises submission to the will of Allah. According to them, the ultimate aim is to seek pleasure from Allah. Islam believes in surrender and obedience to divine will. They also believe in living a life of righteousness and inner peace. Their belief is that daily prayers connect the individual directly with God. Keeping fast, charity and prayer are the ways to achieve inner peace. Islam means surrender and has the extended meaning of peace.
Buddhism
Buddhism believes in achieving Nirvana, perfect enlightenment, and freedom from suffering. Its emphasis is on mindfulness or paying attention to the present moment without any attachment. Following the eightfold path described by Buddha (encompassing the right view, right intention, right speech, right action, right livelihood, right effort, right mindfulness, and right concentration). They also believe in meditation, which, according to Hindu philosophy, is the way to attain Nirvana.
Key practices followed by different faiths
Spiritual discipline is necessary for nurturing and cultivating the soul. Deliberate efforts and regular practice help a person navigate an inward journey.
Fasting or abstinence
This is useful in the initial stages when an individual starts practising spirituality. It helps in cultivating discipline by controlling desires, sacrificing belongings, and leading a sacred life.
Simplicity & moderation
One can concentrate on spiritual development by living a simple life and controlling desires and wishes. It also helps with detachment from materialistic things and concentrating on spiritual development.
Study
Reading sacred books like the Bhagavad Gita, the Bible, the Quran, or the study of scriptures, can help in understanding spirituality in the right sense. Learning from a guru or knowledgeable person makes this path easier to follow.
Prayer and meditation
Prayer helps you connect with your inner self. Showing gratitude, chanting mantras, and practising “Dhyan” (focused concentration), are ways to get connected with the inner soul. “Bhakti” feelings of complete devotion and surrendering to God are ways to achieve self-realisation.
Service and Charity: Practising disciplines like selfless service or “Nishkam Karma,” compassion and contributing for the wellbeing of others, keeps individuals directed towards achieving spiritual awakening.
Benefits of a journey within – than just reaching the top
Embracing spiritual discipline is a lifelong journey of inner transformation and awakening. By practising it as a way of life, individuals can overcome their negativities and achieve all round development.
Inner peace and calm
Spiritual discipline helps in reducing stress, anxiety, and negative thoughts. Fear of the future and the unknown is reduced by following spiritual discipline. It also built a sense of contentment and equanimity.
Greater self awareness
Spiritual discipline helps in understanding the strengths and weaknesses of a person. It can also motivate and boost a person while following their inner journey. It helps in judging what is right and what is wrong. This helps with personal growth and acceptance.
Meaning and purpose
Spirituality helps in understanding one’s unique role in the world. It helps in finding out the very purpose of our lives. It also helps in aligning our desires and actions, leading to a fulfilling life.
Compassion and connection
Spirituality makes us contemplate our inner and outer worlds. It fosters a sense of belonging and enhances deep empathy for others.
Close bonding with family and friends
Following the path of spirituality can promote close bonding with family and friends. It helps people deal with physical or emotional pain and other stress in life. It develops a strong sense of community for those who are part of a spiritual group.
Conclusion
Spirituality and spiritual discipline offer a profound pathway to inner transformation and self-awakening. As we navigate the complexities of life, our spiritual disciplines become the compass that guides us. The path towards spiritual disciplines is not so easy. It requires dedication, patience, and a willingness to face challenges along the way. Eventually, by embracing practices that nurture our connection with the divine, we can tap into a source of wisdom, love, and guidance that transcends the limitations of the egoic mind. Regular and conscious practice of spiritual discipline offers not just answers but a way of being—a way of experiencing the world with a sense of wonder, connection, and purpose. We cultivate a deeper understanding of ourselves, our connection to the world, and ultimately, the meaning of our existence.
This is just the beginning. There are countless resources available for everyone on this journey. It includes ancient scriptures and philosophical texts, as well as modern guides and online communities. One must seek guidance and discover what truly nourishes one’s spiritual quest.
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