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Implementation Challenges of the POCSO Act, 2012

Sommya Kashyap
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Implementation Challenges of the POCSO Act, 2012

Introduction

The Protection of Children from Sexual Offences (POCSO) Act, 2012, was enacted with the intent to provide a strong legal framework for the protection of children against sexual offences. While the Act is comprehensive and well-intentioned, its implementation has faced several challenges. These challenges hinder the effectiveness of the law and pose significant obstacles to achieving its objectives.

Underreporting of Cases

One of the primary challenges in the implementation of the POCSO Act is the underreporting of sexual offences against children. Several factors contribute to this issue:

  • Social Stigma: In many communities, there is a strong social stigma attached to reporting sexual abuse. Families often choose to remain silent to avoid public shame and social ostracism, leading to a significant number of cases going unreported.
  • Fear of Retaliation: Victims and their families may fear retaliation from the accused, particularly in cases where the perpetrator is a person in a position of power or authority.
  • Lack of Awareness: There is often a lack of awareness about the rights and protections available under the POCSO Act, leading to reluctance in reporting such crimes.

Delays in the Judicial Process

The POCSO Act mandates that trials should be conducted in a time-bound manner, ideally within one year. However, in practice, there are often significant delays in the judicial process:

  • Overburdened Courts: Special courts designated to handle POCSO cases are often overburdened with a high volume of cases, leading to delays in trials.
  • Inadequate Infrastructure: Many courts lack the necessary infrastructure, such as child-friendly environments, video conferencing facilities, and other resources required to handle POCSO cases efficiently.
  • Delays in Investigation: Investigations in POCSO cases are sometimes delayed due to inadequate resources, lack of trained personnel, and inefficiencies within the police force.

Inadequate Training and Sensitization

The POCSO Act requires all stakeholders involved in handling cases of child sexual abuse, including police officers, medical professionals, and judicial officers, to be adequately trained and sensitized:

  • Lack of Training: Many police officers and judicial officers lack the specialized training required to handle cases of child sexual abuse sensitively and effectively. This can lead to improper handling of cases, further traumatizing the victim.
  • Insensitive Treatment of Victims: In some instances, child victims are subjected to insensitive questioning and treatment during the investigation and trial process, which can cause further psychological harm.

Challenges in Medical Examination and Reporting

The medical examination of child victims is a critical aspect of the investigation under the POCSO Act. However, several challenges arise in this area:

  • Inadequate Medical Facilities: In many regions, particularly rural areas, there is a lack of adequate medical facilities and trained professionals to conduct forensic examinations of child victims.
  • Delay in Medical Examination: Delays in conducting medical examinations can lead to the loss of crucial forensic evidence, weakening the case against the accused.
  • Lack of Guidelines: There is often a lack of clear guidelines and protocols for medical professionals on how to conduct examinations and document findings in POCSO cases.

Challenges in Rehabilitation and Counseling

The POCSO Act emphasizes the importance of providing psychological support and rehabilitation to child victims of sexual abuse. However, there are several challenges in this regard:

  • Lack of Rehabilitation Facilities: There is a shortage of specialized rehabilitation centers and counselors trained to handle the needs of child victims. This often results in inadequate psychological support for the victims.
  • Inconsistent Implementation: The implementation of victim compensation schemes and rehabilitation programs varies significantly across different states, leading to disparities in the support provided to child victims.

Misuse of the POCSO Act

While the POCSO Act is a crucial tool for protecting children, there have been instances of its misuse:

  • False Allegations: There have been cases where false allegations have been made under the POCSO Act, often as a result of personal vendettas or other motives. This not only undermines the credibility of genuine cases but also puts innocent individuals at risk of unjust punishment.
  • Overcriminalization: The Act has been criticized for criminalizing consensual sexual activities among adolescents, leading to the prosecution of teenagers for acts that may not involve exploitation or coercion.

Conclusion

The POCSO Act, 2012, is a significant legal milestone in the protection of children from sexual offenses in India. However, its effective implementation faces several challenges that need to be addressed to ensure that the Act serves its intended purpose. Addressing issues such as underreporting, judicial delays, inadequate training, and medical examination challenges, as well as preventing misuse of the Act, are critical steps towards strengthening the legal framework for child protection. With concerted efforts from the government, judiciary, law enforcement agencies, and civil society, the implementation of the POCSO Act can be improved, ensuring better protection and justice for children across the country.

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Subhas Chandra And Others vs Municipal Corporation Of Delhi

Varsha Singh
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Subhas Chandra And Others vs Municipal Corporation Of Delhi 
Supreme Court of India
Case number: 1965 AIR 1275
Petitioner
Subhas Chandra And Others 
Respondent
Municipal Corporation Of Delhi Mudholkar, J.R.
Bench
Mudholkar, J.R. Gajendragadkar,
P.B. (CJ) Wanchoo, K.N. Hidayatullah,
M. Dayal, Raghubar
Act: 
Punjab Municipal Act ss. 232, 235 and 236

Background

Eleven clerical employees affiliated with the Corporation of Delhi have approached the Supreme Court under Article 32 of the constitution, seeking to annul an order issued on November 5, 1958, by the Commissioner of the Corporation of Delhi. They are petitioning for the issuance of writ of mandamus, along with the other appropriate writs, orders, or directions compelling the respondent to implement a resolution passed on November 1/8, 1957, by the Executive and Finance Sub-Committee of the now-defunct Municipal Committee of Delhi. The primary basis for their claims for relief is that the Commissioner’s actions in issuing the order have resulted in discriminatory treatment against the petitioners.

Facts

The case arose when the Municipal Corporation of Delhi (MCD) issued an order that affected the service conditions of certain employees, including Subhas Chandra. The employees challenged this order on the grounds that it was arbitrary and discriminatory, violating their fundamental rights under Article 14 (Right to Equality) of the Indian Constitution. Before 1948, the Municipal Committee hired matriculates and non-matriculates as clerks at a salary range of Rs. 35-2-65-3-95. To attract graduates, they offered a starting salary of Rs. 45. On September 16, 1948, the committee revised staff pay grades based on the Central Pay Commission’s recommendations, creating two junior clerk grades of Rs. 55-3-85-4-125-5-130 for matriculates and Rs. 45-2-55-3-95-4-105 for non-matriculates.

Petitioner’s Claim

The petitioners asserted that the committee, aiming to entice graduates and individuals possessing superior academic credentials while simultaneously incentivizing clerical personnel to engage in further academic pursuits, resolved within the same decree to grant a “graduate allowance”  of Rs. 20 per month to graduates employed in the junior grade. This sanction was duly authorized by the Chief Commissioner of Delhi, as documented in memorial No. F.2 (102) 48 – L.S.G dated July 26/27, 1949.352.

The committee has ceased disbursing the graduate’s allowance to prospective recruits while maintaining its allocation to prospective recruits while maintaining its allocation to existing permanent and temporary staff. In response, thirty employees submitted a formal appeal to the committee, contesting the restriction of the allowance solely to current recipients. They asserted that the allowance should be extended to all individuals who have successfully completed the B.A examination post 1954. The representation proved effective, prompting the committee to decree the reinstatement of the personal pay system, granting Rs. 20 per month to all graduates within the junior grade, and mandating that the requisite approval from the Chief Commissioner for this initiative be secured.

On 8 November 1957, the committee enacted an amendment to the resolution under resolution no. 701, thereby mandating the removal of the phrase “necessary sanction of the Chief Commissioner be obtained” from the end of the resolution. According to them, this resolution became effective immediately, entitling them to payment with retrospective applicability. However, prior to the execution of this resolution, the Municipal Committee of Delhi was supplanted by the Municipal Corporation of Delhi, consequently to the enactment of the Delhi Corporation Act of 1957. The Commissioner acknowledged the entitlement for disbursement of the graduate allowance to those junior-grade clerks of Delhi Municipal Committee who had received authorization to engage in higher studies prior to July 30, 1954, however, this concession was not extended to the remaining eighteen individuals.

The petitioners contented that the Commissioner’s order was discriminatory in nature. Subsequently, the petitioner filed a petition under Article 226 of the Constitution before the High Court of Punjab, only to later withdraw it. Thereafter, they sought redress from the Supreme Court under Article 32 of the Constitution.

Argument

The petitioner’s application is vigorously contested on behalf of the corporation on two principal grounds. Firstly, it is asserted that the petitioners have approached this court after an inordinate delay. Secondly, it is contended that the impugned order issued by the commissioner was inherently devoid of jurisdiction. The petitioners concede to a delay of approximately five years in submitting their application; however, they elucidate that this interval was necessitated by the pendency of their writ petition in the High Court of Punjab.

They asserted that when an individual endeavors to assert a fundamental right under Article 32, mere temporal delay should not serve as an impediment. It is noteworthy that no resolution from the committee, nor any applicable rule or by-law, has been presented to our attention mandating that an employee must secure the committee’s approval prior to embarking on higher studies. Consequently, there exists no justifiable rationale for differentiating the petitioners from the 12 individuals in question. The petitioners further interrogate the legal authority of the commissioner to entertain the claims of those 12 individuals.

Mr. Patwardhan, from the respondent side, contends that the Chief Commissioner of Delhi by his order of 30 Oct. 1956 made in exercise of the power vested in him by section 232 of the Punjab Municipal Act 1911 and has a authority to revise the existing scale of pay of any of their employees and granting special pecuniary benefits.

Mr. Baldev Mehta, from the petitioners side, challenged the legitimacy of the Chief Commissioner’s directive on the basis that it exceeded the parameters delineated in section 232 of the act, asserting that the committee was not afforded the opportunity to proffer an explanation as mandate by section 235, nor was any conclusive order issued pursuant to that section. Mr. Mehta raised objection asserting that the municipal committee was deprived of the requisite opportunity to present its case against the Chief Commissioner’s order, as mandated by Section 235 of the Act. He contends that the committee is entitled to a hearing, and such an opportunity cannot be circumvented under the provisions of section 232.

According to him, the non-compliance with this requirement has rendered the order void and ineffective. He asserted that the appropriate statutory provision empowering the authorities to act section 42, thereby rendering section 232 inapplicable. Under this provision, a Deputy Commissioner possesses the authority to scrutinize excessive expenditures by the Committee and mandate a reduction in the remuneration of any of its employees; however, such actions cannot be executed preemptively.

Judgement

The Supreme Court ruled in favour of the employees, stating that the resolution passed in November 1, 1957 was beyond its jurisdiction and the order of the commissioner, is invalid as it violated the principle of equality and non-discrimination enshrined in the constitution. The Court highlighted that public authorities must act reasonably and not in an arbitrary manner and public authorities must adhere to principles of natural justice.

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Lease under Transfer of Property Act , 1882

Shreya Sharma
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Lease under Transfer of Property Act , 1882

Lease Under the Transfer of Property Act, 1882

The Transfer of Property Act 1882 is one of the landmark legislations in India which governs the transfer of property including leases. Chapter V of the Act refers specifically to the leasing of immovable properties outlining the rights and obligations for the parties involved, that is, lessors and lessees.

Definition and Nature of Lease

A lease is actually a transfer of a right to enjoy immovable property for consideration usually in the form of rent, by virtue of some agreement or instrument but only for a certain period. This legal definition captures the very meaning of a lease: it is not transfer of property ownership but usufructory grant of rights over a property. This is therefore the very essence of a lease: it so happens to be a matter of contract between the parties making both liable and obliging them to the terms agreed.

To lease a property, there need to be primarily two parties:

1. Lessor: The owner of the property and one who grants the lease.
2. Lessee: One who receives the lease and is granted the right to use the property.
Both parties must be of full capacity to enter into a contract. They must be of sound mind and be over the age of majority.

For a tenancy to be enforceable, it should, however have the following basic elements:

1. Capable Parties: Both the lessor and lessee should be capable of entering a contract.

2. The property be immovable. This incorporates either land or buildings.

3. The tenancy stipulates the length of the period but may take the form of a fixed or periodic time period.

4. Consideration-Should take the form of an agreed consideration usually in the form of rent.

Types of Leases

The Act further distinguishes among the several classes of leases as follows:

1. Lease for a Fixed Term – There is a definite term; it ceases to operate at the end of that term.

2. Periodic Lease – It runs for successive periods like month-to-month, year-to-year; at the end of any period, it can be terminated by either party.

3. Lease at Will – This lease can be terminated by either lessor or lessee at anytime and has no fixed term.

4. Lease by Implied Consent-  This occurs when a tenant, being in occupation of the lessor’s property, does not have an expressed or written lease agreement, but the lessor accepts rent.

Rights and Obligations of Parties

Lessor’s Rights

1. Receiving Rent: The lessor is entitled to receive the agreed rent.
2. Lessor’s Right of Entry to Inspect Property: The lessor has a right to enter the property for inspection purposes, but only with reasonable notice.
3. Vacate the Premises: The lease provides that at the end of the term the lessor may recover possession of the land.

Obligations of the Lessor

1. Good Condition: The lessor must not hand the property in a dangerous condition to life, health or safety.
2. Quiet Enjoyment: The lessor must not do any acts which interfere with the lessee’s quiet enjoyment of the land.

Rights of the Lessee

1. Quiet Enjoyment: The lessee is entitled to the quiet enjoyment of the property.
2. Necessary Repairs: The tenant is permitted to effect necessary repairs of the property.
3. Assignment of Lease: Notwithstanding any provision of this lease, the tenant may assign its leasehold interest.

Duties of the Tenant

1. Payment of Rent: The tenant shall pay the rent agreed on.
2. Occupation of Property: The tenant shall occupy the property reasonably and prudently.
3. Maintenance: The tenant will undertake small-scale maintenance and upkeep during tenancy .

Termination of Lease

Lease may be terminated for various reasons such as;

1. Termination of Lease Term: In the event that the agreed period elapses .
2. Mutual Agreement: The two parties may agree to terminate the lease.
3. Cancellation due to breach of terms: In an event that one party violates the terms, either party is at liberty to terminate the lease.
4. Notice: Notice may also be served as per the terms that are specified in a lease agreement.

Conclusion

The Transfer of Property Act, 1882, takes a step forward to frame strong legal structures of leases, balancing the rights and liabilities on the both parts, namely, lessors and lessees. In its clear definition of leases and responsibility at the hands of parties, the Act administers smooth transactions and avoids litigations. Being highly familiar with the subtle shades of a lease agreement between two parties is, for any person entering into a lease arrangement, nothing but a lifesaver that guards the individual’s rights and further directs one’s responsibility clearly. Increasing urbanization and gradual evolution of the real estate market have rendered this Act all the more relevant and hence very important that landlords as well as tenants become well known about its provisions in detail. This knowledge not only empowers those in a transaction but also leads to a brighter, clearer, and more balanced rental market in India.

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Guarav Kumar v. Union of India (2024) – The Enrollment fees Case

Shreya Sharma
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Guarav Kumar v. Union of India (2024) – The Enrollment fees Case

Gaurav Kumar v. Union of India

Citation –2024 INSC 558 ( 30 July 2024)

Bench- CJI DR D Y Chandrachud and Justice Jamshed B. Pardiwala

Facts

The Advocates Act of 1961 delineates the procedure for admitting law graduates to the state advocate rolls. Enrollment with a State Bar Council is mandatory to practice law in any court in India. Section 24(1)(f) of the Advocates Act specifies an enrollment fee of six hundred rupees to the SBC and one hundred and fifty rupees to the Bar Council of India (BCI), with reduced fees for Scheduled Caste and Scheduled Tribe candidates.

The petitioner, Gaurav Kumar, lodged a writ petition under Article 32 of the Constitution, contesting the steep enrollment fees levied by SBCs, ranging from Rs. 10,000 to Rs. 50,000. He argued that these high fees are incongruent with the Advocates Act, which outlines a fixed fee structure. The SBCs defended these fees, citing the need to cover various incidental expenses such as library funds, identity card fees, welfare funds, and administrative charges.

Issues

i) Whether the State Bar Councils (SBCs) are justified in charging enrollment fees exceeding the prescribed fees under Section 24(1)(f) of the Advocates Act of 1961 when admitting law graduates to the state rolls.

ii) Whether the payment of other incidental fees can be established as a prerequisite for enrollment.

 Judgement

The Supreme Court has determined that State Bar Councils (SBCs) are prohibited from imposing enrollment fees beyond those specified in Section 24(1)(f) of the Advocates Act. The Court has construed the imposition of exorbitant fees as a transgression of the right to equality pursuant to Article 14 and the right to engage in any profession under Article 19(1)(g) of the Constitution. It has been decreed that SBCs are exclusively authorized to collect enrollment fees and stamp duty, precluding the levying of any supplementary fees. This ruling is prospective in its application, thereby absolving SBCs from the obligation to reimburse any surplus fees accrued prior to the date of judgment.

Reason for Decision

The decision was made due to the violation of the right to equality as per Article 14 and the right to practice under Article 19 (1) (g). There was an unreasonable restriction placed on the profession, which resulted in a burden on individuals belonging to lower socioeconomic groups.

Conclusion

The Supreme Court’s verdict underscored the prohibition on State Bar Councils from imposing fees beyond those specified in the Advocates Act. The Court emphasized that such overbearing fees contravene the right to equality under Article 14 and the right to practice under Article 19(1)(g). It mandated strict adherence by the Bar Council of India (BCI) and State Bar Councils (SBCs) to the statutory provisions of the Act. This landmark judgment champions inclusivity in the legal profession, ensuring that economic barriers do not impede individuals from pursuing a career in law in India.

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Negligence in Tort Law: Elements, Defenses, and Case Studies

Kalpana Bisen
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Negligence in Tort Law: Elements, Defenses, and Case Studies

Introduction

Negligence is one of the most critical areas of tort law, underpinning many legal actions where individuals or entities are held liable for harm caused by their failure to act with due care. The doctrine of negligence has evolved over time, reflecting changes in societal expectations and legal standards. This paper delves into the key elements that must be established for a successful negligence claim, the defenses that can be employed to counter such claims, and illustrative case studies that demonstrate how these concepts are applied in practice.

Elements of Negligence

To succeed in a negligence claim, a plaintiff must prove four essential elements: duty, breach, causation, and damages.

 1. Duty of Care

The first element of negligence is the duty of care. This refers to the legal obligation to adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. The duty of care arises in various contexts, such as the duty of a driver to follow traffic laws or the duty of a doctor to provide competent medical care.

 Donoghue v. Stevenson [1932] AC 562
The landmark case of Donoghue v. Stevenson established the modern concept of negligence in English law. In this case, Mrs. Donoghue consumed ginger beer containing a decomposed snail, leading to her illness. The court held that the manufacturer owed a duty of care to the consumer, despite the lack of a direct contractual relationship, introducing the “neighbor principle” as a foundation for duty of care in negligence claims.

2. Breach of Duty

Once a duty of care is established, the plaintiff must demonstrate that the defendant breached that duty. A breach occurs when the defendant’s actions fall short of the standard of care expected under the circumstances. The standard is typically that of a “reasonable person” – an objective standard used to measure the defendant’s conduct.

Blyth v. Birmingham Waterworks Co. (1856) 11 Ex Ch 781
In Blyth v. Birmingham Waterworks Co., the court clarified the standard of care, stating that negligence is the omission to do something that a reasonable person, guided by the considerations which ordinarily regulate human affairs, would do. In this case, the court found that the water company had not breached its duty as the severe frost was an unforeseeable event that a reasonable person could not have anticipated.

 3. Causation

Causation links the breach of duty to the harm suffered by the plaintiff. The plaintiff must prove that the defendant’s breach of duty was the actual cause (cause in fact) and the proximate cause (legal cause) of the injury. The “but for” test is often used to establish factual causation: but for the defendant’s actions, the harm would not have occurred.

 Barnett v. Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428
In the Barnett case, a man died of arsenic poisoning after being sent home by a hospital without proper treatment. The court held that although the hospital breached its duty of care by failing to provide adequate medical attention, the breach was not the cause of the death because the man would have died regardless of the hospital’s actions. This case illustrates the importance of establishing both factual and legal causation in negligence claims.

4. Damages

The final element of negligence is damages, which refers to the harm or injury suffered by the plaintiff as a result of the defendant’s breach. Damages must be a foreseeable result of the defendant’s actions, and the plaintiff must prove that they have suffered a compensable loss.

The Wagon Mound (No. 1) [1961] AC 388
In The Wagon Mound (No. 1), a ship leaked oil into Sydney Harbor, which later ignited and caused extensive damage to nearby property. The court held that while the damage was a direct result of the defendant’s negligence, it was not a foreseeable consequence, and therefore, the defendant was not liable for the damages. This case emphasizes the requirement for foreseeability in awarding damages in negligence claims.

Defenses to Negligence

Defendants in negligence cases may employ several defenses to avoid or mitigate liability. Common defenses include contributory negligence, comparative negligence, and assumption of risk.

1. Contributory Negligence

Contributory negligence occurs when the plaintiff’s own negligence contributed to the harm they suffered. In jurisdictions that recognize contributory negligence as a complete defense, the plaintiff may be barred from recovering any damages if they are found to be even partially at fault.

Butterfield v. Forrester (1809) 11 East 60
Butterfield v. Forrester is an early case that illustrates the defense of contributory negligence. In this case, the plaintiff was riding his horse at high speed and was injured after hitting a pole that the defendant had negligently placed in the road. The court held that the plaintiff’s own negligence in riding too fast contributed to the accident, and therefore, he was not entitled to recover damages.

 2. Comparative Negligence

Comparative negligence allows for the apportionment of damages based on the degree of fault of each party. In pure comparative negligence jurisdictions, the plaintiff’s recovery is reduced by their percentage of fault. In modified comparative negligence jurisdictions, the plaintiff may only recover if their fault is below a certain threshold (usually 50%).

 McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)
In McIntyre v. Balentine, the Supreme Court of Tennessee adopted the doctrine of comparative negligence, allowing the plaintiff to recover damages proportionate to the defendant’s degree of fault. This case marked a significant shift away from the harsh rule of contributory negligence, promoting a more equitable distribution of liability.

3. Assumption of Risk

The assumption of risk defense applies when the plaintiff voluntarily and knowingly assumes the inherent risks associated with a particular activity. If successful, this defense can completely bar the plaintiff’s recovery.

 Murphy v. Steeplechase Amusement Co., 250 N.Y. 479 (1929)
In Murphy v. Steeplechase Amusement Co., the plaintiff was injured while riding an amusement park attraction known as “The Flopper.” The court held that the plaintiff assumed the risk of injury by voluntarily participating in the activity, and therefore, the defendant was not liable for the injuries sustained.

Application of Negligence Principles

The following case studies illustrate the application of negligence principles and defenses in various contexts, highlighting the complexity and nuances of negligence law.

 1. Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)

Palsgraf is a seminal case in American tort law that explores the concept of proximate cause. The plaintiff, Helen Palsgraf, was injured when a package containing fireworks was dropped by a passenger boarding a train, causing an explosion. The court, led by Judge Cardozo, held that the railroad company was not liable because the harm to Palsgraf was not a foreseeable consequence of the employee’s actions. This case illustrates the importance of foreseeability in establishing proximate cause.

 2. Caparo Industries plc v. Dickman [1990] 2 AC 605

The Caparo case is a leading authority on the duty of care in English law. The House of Lords established a three-part test for determining the existence of a duty of care: foreseeability of harm, proximity between the parties, and whether it is fair, just, and reasonable to impose a duty. This test is now widely used in negligence cases to assess whether a duty of care exists.

 3. Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582

In Bolam v. Friern, the court established the “Bolam test” for determining the standard of care in professional negligence cases. The plaintiff was injured during electroconvulsive therapy, and the court held that the doctor was not negligent because his actions conformed to a practice accepted as proper by a responsible body of medical opinion. The Bolam test remains a key standard in cases involving professional judgment.

Conclusion

Negligence in tort law is a complex and evolving area, shaped by judicial decisions and societal values. The key elements of negligence—duty, breach, causation, and damages—provide the framework for determining liability, while defenses such as contributory negligence, comparative negligence, and assumption of risk offer avenues for defendants to mitigate or avoid liability. Through case studies, this paper has illustrated how these principles are applied in practice, underscoring the importance of context and judicial interpretation in shaping the law of negligence. As the legal landscape continues to evolve, the principles of negligence will undoubtedly adapt to address new challenges and reflect changing societal expectations.

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Overview of the POSH Act, 2013

Divya Choudhary
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Overview of the POSH Act, 2013

Introduction

The Prevention of Sexual Harassment (POSH) Act, 2013, is a significant step towards
ensuring safe and secure workplaces in India, free from sexual harassment. This
legislation was enacted in response to the need for a comprehensive framework to
address workplace harassment, primarily following the landmark Vishaka guidelines
by the Supreme Court of India in 1997.

Main Purpose of the POSH Act

The main purpose of the POSH Act is to provide protection against sexual harassment
for women in the workplace. It also provides the recognition of legal redress for the
victims, protection of their rights as well as puts in place a check and balance in
organizations. The Act therefore covers all workplaces, in the organized as well as the
unorganized sectors, the private and public enterprises, the government, non
governmental organizations, learning institutions, hospitals, and other institutions.

What Constitutes Sexual Harassment?

The POSH Act broadly defines sexual harassment and covers a wide range of
inappropriate actions. This encompasses unwelcome physical contact or advances,
demands for sexual favors, making sexually colored remarks, displaying pornography,
and any other verbal or non-verbal conduct of a sexual nature. The Act also makes
provision for instances where harassment may be quite subtle thus making it
possible to address such situations.

Internal Complaints Committee (ICC)

The Prevention of Sexual Harassment (POSH) Act mandates that organizations with
ten or more employees must establish an Internal Complaints Committee (ICC). The
ICC’s roles are mainly to accept complaints of sexual harassment, investigate the
cases, and make recommendations as necessary. The committee must be headed by
a senior female employee and include at least one external member to ensure
impartiality.

In organizations having less than ten employees or in the unorganized sector the
Local Complaints Committees (LCC) are constituted by the District Officer for
redressing the complaints of sexual harassment.

Key Features and Procedures:

Mechanism for Filing Complaints: A woman who feels that she has been treated
unfairly has the right to lodge a written complaint to the ICC or LCC within three
months from the time of the incident. But this period may be extended under
reasonable causes.

Investigation and Resolution Process: Upon receipt of a complaint, the ICC or LCC is
required to conduct a thorough investigation. Throughout this procedure, both
parties are entitled to present their case, and the inquiry must be concluded within
90 days. After, the committee will write a report to the employer with
recommendations that can include a disciplinary measure, compensation, or other
corrective measures.

Confidentiality: The Act, also sets huge value of confidentiality in protecting the
identity of the complainant and the proceedings. This is especially important to
prevent the suffering party from any further abuse or predatory actions.

Protection Against Retaliation: The Act protects the complainant against retaliation
or victimization because he or she complained. It is worth noting that employers are
also barred from practicing retaliations in any way.

Role of Employers:

The employers must fulfill the provisions outlined in the Prevention of Sexual
Harassment (POSH) Act since they play a very important role in maintaining the
provisions of the guidelines. They are responsible for creating awareness about
sexual harassment and the Act’s provisions. This includes organizing regular
workshops and sensitization programs for employees and ICC members. It is also a
legal requirement that employers put up the Act against sexual harassment in the
workplace. Some sanctions have been prescribed for non-adherence to the
provisions of the POSH Act and repeated violations may lead to stricter penalties,
including the cancellation of the business license.

Why the POSH Act is important?

The Prevention of Sexual Harassment (POSH) Act is an important and empowering
piece of legislation that provides women with a legal framework to address and
combat workplace harassment. This act, thus, not only provides legal provisions for
complaining and seeking remedy but also serves as a deterrent, fostering a safer and
more respectful work environment. By helping the employer ensure that the
workplace is free from harassment, the Act fosters an environment where women
can freely work without threats of being harassed or discriminated against.

Challenges and Future Outlook

The POSH Act is a good attempt to safeguard women’s rights from sexual harassment
in the workplace but it is facing several challenges during its implementation.
Unfortunately, many organizations remain ignorant or simply fail to form the
necessary Internal Complaints Committees (ICCs). Still, for some women, coming
forward is a problem bearing in mind the measures in place because of the stigma or
reprisal that they stand to face. There is also criticism about the Act’s scope as it only
concerns women and does not cover men and trans-gendered persons who may also
be harassed. To support it is necessary to establish strict supervision over the Act and
increase its recognition by employers and employees.

In the future training needs to happen not only regarding the legal issues but also
regarding the culture change in the workplace regarding respect and diversity. If
concrete measures are continued to be implemented, then the POSH Act has the
potential to create better working environments across the country.

Conclusion

Prevention of Sexual Harassment (POSH) Act 2013 is still one of the foremost anti
sexual harassment legislation that seeks to eliminate and deal with cases of sexual
harassment in the workplace. Most of these pieces of legislation have been
beneficial by offering clear policies and avenues by which women’s empowerment is
upheld while making employers accountable. Nevertheless, its great impact will be
realized only where there is a sustained application of the provisions, increased
awareness of them, and the cooperation of both employers and employees in the
creation of a safe and civil working environment.

Challenges in Adjudicating POCSO Cases: Insights from Legal Practitioners

Sommya Kashyap
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Challenges in Adjudicating POCSO Cases: Insights from Legal Practitioners

Introduction

The Protection of Children from Sexual Offences (POCSO) Act, 2012, was established to ensure a robust legal framework for the protection of children against sexual offenses. While the Act is comprehensive, its adjudication poses numerous challenges, as highlighted by legal practitioners who navigate the complexities of these cases daily. This article explores the key challenges in adjudicating POCSO cases, drawing insights from the experiences of judges, lawyers, and child rights advocates.

Sensitivity and Training of Judges

One of the foremost challenges in adjudicating POCSO cases is ensuring that judges possess the requisite sensitivity and understanding to handle such cases effectively.

  • Case Example: State of Maharashtra v. Bandu (2018)In this case, the Bombay High Court highlighted the importance of judicial sensitivity when dealing with child victims. The court overturned a lower court’s acquittal of the accused, stating that the trial judge had failed to appreciate the child victim’s testimony in the context of her age and the trauma she experienced. The judgment emphasized the need for judges to be adequately trained and sensitized to the psychological aspects of child sexual abuse cases.

Evidentiary Challenges

Adjudicating POCSO cases often involves significant evidentiary challenges, particularly due to the nature of the offenses and the age of the victims.

  • Case Example: State of Karnataka v. Shivanna (2014)In this case, the Supreme Court of India underscored the importance of prompt and proper collection of forensic evidence in POCSO cases. The court noted that delays in medical examinations and improper preservation of evidence had weakened the prosecution’s case, leading to the acquittal of the accused. The judgment highlighted the critical role of forensic evidence in securing convictions in POCSO cases and called for stricter adherence to protocols.
  • Case Example: Rajesh Patel v. State of Jharkhand (2013)The Jharkhand High Court dealt with the issue of the reliability of a child’s testimony. The court ruled that the testimony of a child victim should not be discarded merely because it lacked corroboration, provided it is credible and consistent. The judgment reiterated the principle that the victim’s testimony is central in POCSO cases, and courts must consider the victim’s age and vulnerability when assessing credibility.

Judicial Delays

Judicial delays are a pervasive issue in the Indian legal system, and POCSO cases are no exception.

  • Case Example: In Re: Alarming Rise in The Number of Reported Child Rape Incidents (2019)The Supreme Court of India, while addressing a suo moto writ petition, expressed concern over the alarming rise in POCSO cases and the significant delays in their adjudication. The Court directed the establishment of exclusive POCSO courts in districts with over 100 pending cases and emphasized the need for fast-tracking trials to prevent further trauma to the victims. The judgment highlighted the systemic issue of backlog and delays in POCSO cases, calling for urgent reforms.

Balancing Speedy Trials with Fairness

The POCSO Act mandates that cases be disposed of within one year from the date of reporting, but legal practitioners argue that this goal presents its own set of challenges.

  • Case Example: Satish v. State of Maharashtra (2021)In this controversial case, the Bombay High Court acquitted the accused on the grounds that there was no “skin-to-skin” contact with the victim. The judgment was widely criticized for its narrow interpretation of the law. The Supreme Court later overturned this decision, emphasizing that the POCSO Act should be interpreted broadly to protect children. This case underscores the tension between the need for speedy trials and ensuring comprehensive legal reasoning.
  • Case Example: Tukaram v. State of Maharashtra (2022)This case dealt with the issue of balancing the need for speedy trials with the thorough examination of evidence. The Bombay High Court emphasized that while speedy trials are important, they should not come at the expense of justice. The court noted that undue haste could result in overlooking crucial aspects of the case, leading to unjust outcomes.

Ethical Dilemmas for Legal Practitioners

Legal practitioners, particularly defense lawyers, often face ethical dilemmas in POCSO cases.

  • Case Example: In Re: Suo Motu Writ Petition (Crl.) No. 1 of 2019 (2019)The Supreme Court of India, while dealing with a suo moto petition regarding the rise in child rape cases, acknowledged the ethical challenges faced by defense lawyers in POCSO cases. The Court emphasized that defense lawyers must balance their duty to provide a robust defense with the need to avoid causing additional trauma to child victims during cross-examination. The judgment called for guidelines to ensure that cross-examinations are conducted sensitively and ethically.

Challenges in Implementing Victim-Centric Provisions

The POCSO Act includes several provisions aimed at protecting and supporting the victim, but legal practitioners report challenges in their implementation.

  • Case Example: Sakshi v. Union of India (2004)Although this case predated the POCSO Act, it laid the groundwork for child-friendly procedures that are now enshrined in the Act. The Supreme Court in this case emphasized the need for in-camera trials, video conferencing for testimony, and other measures to protect child victims from further trauma during the trial process. The case is frequently cited in POCSO cases to advocate for the implementation of these victim-centric provisions.
  • Case Example: X v. State of Karnataka (2020)In this case, the Karnataka High Court dealt with the issue of breach of privacy and confidentiality of the victim’s identity. The court reprimanded the lower court for inadvertently revealing the victim’s identity in its judgment, thereby violating the provisions of the POCSO Act. The judgment underscored the importance of strict adherence to the confidentiality requirements under the Act to protect the dignity and privacy of child victims.

Conclusion

The adjudication of POCSO cases presents a range of challenges that require ongoing attention and reform. Legal practitioners play a crucial role in navigating these challenges, but their insights also highlight the need for systemic changes to improve the effectiveness of the POCSO Act. Ensuring that judges are adequately trained, addressing evidentiary challenges, reducing judicial delays, and upholding ethical standards are essential steps towards more effective adjudication. By addressing these challenges, the legal system can better serve the interests of child victims and ensure that justice is delivered in a manner that is both fair and compassionate.

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Donoghue vs. Stevenson, 1932

Avani Ashtaputre
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Donoghue vs. Stevenson, 1932

Introduction

Donoghue v. Stevenson (1932) is a landmark case in tort law that established the concept of duty of care in negligence claims. The case arose when Mrs. May Donoghue consumed ginger beer from a bottle that contained a decomposed snail. After falling ill, she sued the manufacturer, Mr. Stevenson, for negligence. The House of Lords ruled that Stevenson owed a duty of care to Donoghue, recognizing that it was foreseeable that a failure to ensure the safety of the product could harm consumers. This decision marked a significant shift in tort law by allowing claims for indirect injuries without the need for direct physical damage. Previously, legal claims for personal injury typically required evidence of direct harm. This case introduced a fault-based system that focused on injury rather than physical contact, influencing future negligence claims and legal principles in both English and Scots law. Its implications continue to shape the landscape of tort law today.

Background/ Facts

On the evening of August 26, 1928, May Donoghue, a Glasgow woman, visited the Wellmeadow CafĂ© in Paisley, Renfrewshire, during the Glasgow Trades Holiday. She ordered a Scotsman ice cream float, served using ginger beer from a brown, opaque bottle labelled “D. Stevenson, Glen Lane, Paisley.” The bottle was disputed due to potential mix-ups and bottle reuse. After consuming some of the float, Donoghue’s friend poured the remaining ginger beer into the tumbler, and a decomposed snail emerged from the bottle.

This caused Donoghue to feel ill and reported abdominal pain. She was admitted to Glasgow Royal Infirmary on September 16, where she was diagnosed with severe gastroenteritis and shock. Donoghue’s friend, Walter Leechman, had recently handled a case involving a consumer complaint against a manufacturer. Leechman filed a writ on Donoghue’s behalf against Stevenson, claiming ÂŁ500 in damages and ÂŁ50 in costs. The central legal issue in Donoghue’s case was whether Stevenson owed her a duty of care, as she had not purchased the drink directly from him but from the cafĂ© owner. This question of consumer rights and manufacturer liability led to significant legal developments, ultimately culminating in the landmark case Donoghue v. Stevenson, which established important precedents in tort law regarding negligence and the duty of care owed by manufacturers to consumers.

Arguments

Donoghue filed a lawsuit against Stevenson, alleging that he breached his duty of care by failing to provide an effective cleaning system for his ginger beer bottles. The ineffectiveness of the cleaning system was attributed to the bottles being left in areas where snails had free access, leading to the claim that the breach caused Donoghue’s subsequent illness. Stevenson denied any involvement in the snails in his bottles and argued that the alleged injuries were exaggerated, stating that the illness was due to Donoghue’s own health. In response to the writ, Stevenson argued that the claim had no legal basis, the facts could not be substantiated, he had not caused Donoghue any injury, and the claimed amount was excessive.

Judgment

Initially, the case was brought before the Scottish courts, where Donoghue’s claim was dismissed. The judge ruled that there was no actionable negligence since there was no contract between Donoghue and Stevenson. However, Donoghue’s legal team, led by the renowned lawyer Sir Gerald Fitzmaurice, appealed to the House of Lords (now the Supreme Court of the United Kingdom).

i) Court of Session, Outer House

On May 21, 1929, the Court of Session heard its first interlocutory action regarding the case involving Donoghue and Minghella, with Lord Moncrieff presiding. Minghella was initially added as a defender on June 5 but the claim against him was dropped on November 19, likely because he had no contractual relationship with Donoghue and could not inspect the contents of the ginger beer bottle. On December 12, the court awarded Minghella and Stevenson costs of ÂŁ108, which Donoghue did not pay.

The case was subsequently reviewed by Lord Moncrieff on June 27, 1930. He established a principle of liability for negligent food preparation, asserting that producers should not claim ignorance of potential dangers linked to their products. He argued that the presence of tainted food poses significant risks and that negligence should not exempt manufacturers from liability, thereby dismissing prior English case law requiring a contractual basis for liability in such cases.

ii) Court of Session, Inner House

Stevenson appealed to the Inner House, where four judges who previously ruled against Mullen reviewed the case. On 13 November 1930, they referenced their earlier decision, with Lord Alness noting that the main difference between the Mullen case and Stevenson’s was the contents of the bottle—mice versus a snail. Ultimately, Lord Alness, Lord Ormidale, and Lord Anderson allowed the appeal, while Lord Hunter dissented.

iii) House of Lords

In February 1931, Donoghue filed an appeal to the House of Lords after becoming ill from drinking contaminated ginger beer manufactured by Stevenson. She claimed to be very poor, which allowed her to pursue the case without needing to secure costs. The appeal was heard in December 1931, with her lawyers arguing that Stevenson had a duty of care to consumers because the ginger beer was in opaque bottles, preventing examination before purchase. They contended that since the product was meant for human consumption, the manufacturer should take reasonable care in its production. Stevenson’s counsel countered that without a contractual relationship, there was no duty of care owed.

They argued that the ginger beer was not dangerous by nature and dismissed Donoghue’s claim as unsupported by legal precedent. On May 26, 1932, the House of Lords delivered a 3-2 judgment in favor of Donoghue. Lord Atkin articulated the “neighbor principle,” asserting that manufacturers owe a duty of care to consumers who are closely affected by their products. He emphasized that legal liability should reflect common sense and public safety. The dissenting judges warned against expanding liability too broadly, expressing concerns about potential repercussions for manufacturers. This landmark case established that consumers could seek compensation for negligence even without a contractual relationship, significantly shaping the law of tort in both Scotland and England.

Significance

The Donoghue v. Stevenson decision had a significant impact on tort law. It impacted subsequent court cases and created a conceptual model for negligence. The case’s underlying principles have been used in areas other than product liability, such as public health, workplace safety, and professional negligence. The lawsuit also cleared the path for contemporary product safety regulations and consumer protection laws. The principles arising from this decision have since been adopted and modified by courts in several countries, so solidifying its significance in common law. Lord Atkin’s “neighbor principle” asserts that individuals must take reasonable care to avoid actions that could foreseeably harm others, drawing from the biblical commandment to love one’s neighbor. This concept, first articulated by Francis Buller in 1768, has legal roots in cases like Heaven v. Pender and MacPherson v. Buick Motor Co., which established the duty of care even in the absence of a contractual relationship. Lord Atkin emphasized that negligence can lead to liability if it endangers others, highlighting the moral obligation to treat others as one would wish to be treated. He further discussed this principle in various lectures, suggesting it encompasses much of tort law.

Conclusion

Donoghue v. Stevenson remains a cornerstone of tort law, illustrating the evolution of the duty of care and the responsibilities of manufacturers towards consumers. The case not only addressed the immediate harm suffered by Donoghue but also transformed the legal landscape by affirming the notion that individuals and companies have a moral and legal obligation to act with care toward others. Its legacy continues to shape the principles of negligence and consumer rights today, making it a pivotal case in the study of law.

SCBA Criticizes Amendments to Supreme Court Practice and Procedure Act

Shivani Singh
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SCBA Criticizes Amendments to Supreme Court Practice and Procedure Act

SCBA Criticizes Amendments to Supreme Court Practice and Procedure Act

On September 21, 2024, the Supreme Court Bar Association (SCBA) expressed opposition to the presidential ordinance amending the Supreme Court Practice and Procedure Act. The SCBA highlighted that the amendment undermined judicial independence and risked disrupting the balance between the judiciary and Parliament. They warned of potential threats to constitutional democracy if both branches do not maintain restraint and protect the sanctity of the Constitution. The Bar urged stakeholders to ensure transparency and safeguard fundamental rights.

Supreme Court Allows Final Year Law Students to Appear for AIBE

Shivani Singh
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Supreme Court Allows Final Year Law Students to Appear for AIBE

Supreme Court Allows Final Year Law Students to Appear for AIBE

In a significant ruling, the Supreme Court has permitted final-year law students to take the All India Bar Examination (AIBE). The decision allows students currently enrolled in the final year of 3-year and 5-year LLB programs to appear for the certification exam. This move by the court is expected to expedite the process for aspiring lawyers, enabling them to enter the profession sooner. Thousands of students across the country are set to benefit from this ruling.

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