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INTRODUCTION
What is Ethics?
Ethics (also known as moral philosophy) is a branch of philosophy which seeks to address
questions about morality; that is, about concepts like good and bad, right and wrong, justice,
virtue, etc.―Ethics‖ refers to the moral values that govern the appropriate conduct of an
individual or group. ―Ethics‖ speaks to how we ought to live, that is, how we ought to treat
others and how we ought to run or manage our own lives.
Simply stated ethics refers to standard of
behavior that tell us how human beings ought
to act in the many situations in which they
find themselves-as friends, parents, children,
citizens ,businesss people, teachers,
professionals, and so on. Ethics refers to a
system of moral principles a sense of right and
wrong, and goodness and badness of actions
and the motives and consequences of these actions. As applied to business firms, ethics
is the study of good and evils, right and wrong and just and unjust actions of businessmen.
Ethics is a body of principles or standards of human conduct that govern the behavior of
individuals and groups. Ethics arise not simply from man's creation but from human nature
itself making it a natural body of laws from which man's laws follow. Ethics is a branch of
philosophy and is considered a normative science because it is concerned with the norms of
human conduct, as distinguished from formal sciences such as mathematics and logic,
physical sciences such as chemistry and physics, and empirical sciences such as economics
and psychology. Ethics is seen as an individual‘s own personal attitude and a believe
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concerning what is right or wrong, good or bad. It is important to note that ethics reside
within individuals and that organization doesn‘t have ethics. People have ethics.
Consequently, its definition and understanding varies from person to person. These are not
absolute, but are relative. Ethical behaviors are in the eye of beholder. What is right or wrong
is a personal individual matter, but is still influenced by socially accepted norms. Right, and
proper and fair are the ethical terms. It expresses a judgment about behavior towards people
they felt to be just. Ethics are useful tools for sorting out the good and bad components within
complex human interactions. Business ethics does not differ from generally accepted norms
of good or bad practices. If dishonesty is considers to be unethical and immoral in the society,
then any business man who is dishonest his or her employees, customer‘s shareholders, or
competitors is unethical and immoral person .Businessmen should not try to evolve their own
principles to justify ‗what is right and what is wrong‘. Ethics refers to accepted principles of
right or wrong that govern the conduct of a person, the members of a profession, or the
actions of an organization. Business Ethics are the accepted principles of right or wrong
governing the conduct of business people. Ethical decisions are those that are in accordance
with those accepted principles of right and wrong, whereas and unethical decision in one that
violates accepted principles. This is not as straightforward as It sounds Managers may face
ethical dilemmas, which are situations where there is no agreement over exactly what the
accepted principles of right and wrong are, or where none of the available alternatives seems
ethically acceptable.
It is helpful to identify what ethics is NOT
Ethics is not the same as feelings. Feelings provide important information for our ethical
choices. Some people have highly developed habits that make them feel bad when they do
something wrong, but many people feel good even though they are doing something wrong.
And often our feelings will tell us it is uncomfortable to do the right thing if it is hard.
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Ethics is not religion. Many people are not religious, but ethics applies to everyone. Most
religions do advocate high ethical standards but sometimes do not address all the types of
problems we face.
Ethics is not following the law. A good system of law does incorporate many ethical
standards, but law can deviate from what is ethical. Law can become ethically corrupt, as
some totalitarian regimes have made it. Law can be a function of power alone and designed
to serve the interests of narrow groups. Law may have a difficult time designing or enforcing
standards in some important areas, and may be slow to address new problems.
Ethics is not following culturally accepted norms. Some cultures are quite ethical, but
others become corrupt -or blind to certain ethical concerns (as the United States was to
slavery before the Civil War). "When in Rome, do as the Romans do" is not a satisfactory
ethical standard.
Ethics is not science. Social and natural science can provide important data to help us
make better ethical choices. But science alone does not tell us what we ought to do .Science
may provide an explanation for what humans are like. But ethics provides reasons for how
humans ought to act. And just because something is scientifically or technologically possible,
it may not be ethical to do it.
IS ETHICS JUST ABOUT HAVING THE RIGHT PRINCIPLES?
When people respond intuitively to the question ‗What is ethics?‘ they tend to identify ethics
with principles which distinguish right and wrong. And this is correct – as far as it goes.
However, the kinds of situations which demand ethical action motivated by sound ethical
principles also require a specific kind of thinking, namely ethical reflection.
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Ethics: a set of values or group of moral principles that are right and good a code or
principles of behavior or conduct governing an individual or group
Ethical theories and frameworks that can impact an analysis of ethical behaviour .
Four Principal Ethical Theories:
1. Rights Ethics - act is morally right when it respects rights relevant to a situation
Examples: rights for ―life, liberty, pursuit of happiness‖
other rights: private property, privacy, freedom of speech, fair trial, ...
human rights and non-human rights?
2. Duty Ethics - act it right when it conforms with duties
Examples: uphold promise, be fair, respect personal freedom
duty to protect the weak, duty to comply with laws, ...?
duty to do job to best of ability
3. Utilitarianism - right action consists entirely in producing good consequences
Interpretation: good intentions, outcomes, results; ―ends justify means‖
Example: most good for most people is optimal
4. Virtue Ethics - persons are morally good when their character is virtuous and
expressed in action, attitude, and relationships (oldest, prominent in classical Greek thought
and religion). Example Virtues: honesty, fairness, conscientiousness, etc.
Four Secondary Theories:
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1. Ethical Egoism - act is correct when it maximizes one‘s own interests
2. Corporate Egoism - act is acceptable when it maximizes the interest of a
corporation
3. Ethical Relativism - act is right when it is approved by a group (conforms to laws)
4. Divine-command ethics - act is correct when it is approved by God
Situational ethics vs Absolutism
Situational ethics means that depending on the specific circumstances, different rights,
duties, values, etc. may apply. Absolutism implies that regardless of a situation, the basic
ethical foundations remain the same. For example, most people would agree that killing is
wrong / unethical. However, absolutism implies that it is always wrong. Therefore, a person
who was absolutist would not be in the military and would not use deadly force to defend
themself. Alternatively, situational ethics would allow that killing in some situations IS
ethical. For example, the idea of justifiable homicide, such as in self-defense. Or defense of
ones country in time of war. Again, neither view is either right or wrong. Ethical theory can
support either argument.
Stages of moral development:
It is generally recognized that people tend to transition between different levels of moral
understanding throughout their lifetime. As small children, we don‘t innately understand
right from wrong, do not know what laws govern society, etc. As we learn, our views evolve
over time. These so-called ―stages of moral development‖ are often classified as follows:
1. obedience or punishment
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2. marketplace morality
3. conformity
4. law and order
5. social contract
6. universal human rights
7. integrity - whole environment ethic
Alternatively, Kohlberg grouped moral development into 3 MAIN levels:
pre-conventional = self benefit, avoid punishment, defer to authority or power
conventional = conform blindly to societal norms or customs
post-conventional = autonomous, reasoned positions beyond self interest
Steps to confront moral dilemma:
1. Identify relevant moral factors and reasons
what are the conflicting responsibilities, competing rights, and clshing ideals involved
2. Gather all available information that is relevant to the moral factors involved
3. Rank the moral considerations in order of importance (if possible)
4. Consider alternative courses of action to resolve the dilemma, considering the FULL
implications of each
5. Talk with others to get alternative perspectives on the dilemma
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6. Arrive at a reasoned judgment by weighing all moral factors on the basis of your
information
3. Professional Ethics
This section discusses some of the key facets of professional ethics. Specifics for each of
these areas are provided in the professional codes of ethics from the National Society of
Professional Engineers (NSPE) and the American Society of Civil Engineers (ASCE).
Duty to the Public and Clients
―Being ethical also means being honest. In carrying out large and complex assignments, we
confront issues that aren‘t purely technical. There are business and financial ramifications to
consider in our projects, and sometimes we must suppress our engineering egos in favor of
the client‘s interests.‖ Joel Cerwick, vice president Burn‘s & McDonnell
Avoid conflict of interest: no favoritism, based on personal biases, during engineering
practice. This can include things such as influencing decisions that will yield personal gain.
Ethics and Social Responsibility
Ethics are talked about frequently and addressed in the news when unethical decisions are
found. Sadly, people do not hear about ethics when others are engaging in ethical behavior on
a daily basis. Keep in mind that things that are not illegal may be unethical. Ethics are an
individual belief system that consists of knowing what is right and wrong. Ethics can vary
person to person. Ethics is in part analyzing decisions, beliefs, and actions.
Within the business context, businesses are expected to have good ethical values and act
socially responsible. The problem is that the ethics of a business is a mixture of individual
sets of ethics. This is why it is important to have good individuals as employees. It is also
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equally important that when you go to work somewhere that you feel like you share the
values of those you work with. Ethics is not just talking about the right thing. It is doing what
is right in every decision that is made.
Social responsibility can be an example of ethical behavior. It is enhancing society in
general. However, a business can‘t afford to go around doing good deeds if there is no
potential pay off. If the business were to loose too much money, then it would cease to exist,
hurt customers, and leave employees jobless. There are some that argue that social
responsibility is shown only when companies go beyond what is optional, and really intend to
create a benefit for others besides the company. Additionally, some companies may not
benefit from some forms of social responsibility. These businesses should focus on what they
do best as a business and give back what they can. There are innumerable ethical dilemmas that
may arise in a business setting. Some of them are more obvious while some of them are more
obscure. There is a simple basis that helps keep decisions in perspective. Businesses should
operate in a manner that is legal, profitable, ethical, and within social norms. By being within
social norms means that you need to use society to gauge if your decisions are appropriate. Some
cultures would define what is ethical differently from other cultures. Due to the fact that all
businesses need to be profitable, sometimes there is an over emphasis on making more money.
Social norms should govern what is appropriate to compensate individuals as well as to charge
customers. Profit expectations and goals should not require a business to cut corners in an
unethical way or to misrepresent or twist facts.
Then where do ethics come from? People begin to develop their internal beliefs from the time
they are small children. Factors such as the conditions that an individual grows up in affect
the way that they see the world. For example if a child was raised in a household with a lot of
violence, they might feel that fighting is okay. The beliefs of the peers around you may
influence how you see things. It is human nature to want to belong and some are more apt to
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give into peer pressure. People have a lot in common with their peers due to similar values in
the first place. However, it is hard to find two people that feel exactly the same about every
situation. Some people would feel that if they found money that they should be able to stick it
in their pocket and keep it. Others would feel as if they should take it to the lost and found
area.
Then why do people engage in unethical behaviors? Many people feel that they won‘t
be caught. An employee that steals a few dollars out of petty cash may eventually result to
taking large amounts of cash if they are never caught. Someone with lots of authority may
feel like they can cover their tracks by lying to subordinates. Some people are unethical
because they can justify what they are doing. If an employee sees other people not being
punished for unethical behavior, then they may feel like they should be able to do it to. Some
individuals make a poor choice and instead of coming clean about it feel the need to make
more choices to cover it up. Once bad decisions are made, they tend to get worse until they
are eventually caught. The biggest reason people are unethical is because they feel that they
can gain from it, or that they need to hide something that can hurt them.
There are many things that an organization can do to facilitate good ethical behaviors. One of
the best things to do is to make sure that the underlying culture of an organization promotes
strong values. People should not be punished for coming forward with problems. As a matter
of fact, workers should be allowed to communicate problems anonymously. Some
organizations have a phone number to call or a suggestion box. Always allow employees to
share any ethical concerns with authority above them when there are ambiguities about the
right thing to do. Another method for implementing ethical conduct is to make sure that
unethical conduct can‘t occur. The ability to safeguard resources is an important function of
internal controls. Other methods are to require signatures, to lock up valuables, use security
cameras, have employees rotate jobs, and randomly check employee work. The more secure
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your business is, the less likely that individuals within the organization will make unethical
decisions.
INDIAN LEGAL SYSTEM
Introduction
India‘s first major civilization flourished around 2500 BC in the Indus river valley. This
civilization, which continued for 1000 years and is known as Harappan culture, appears to
have been the culmination of thousands of years of settlement. For many thousands of years,
India‘s social and religious structures have withstood invasions, famines, religious
persecutions, political upheavals and many other cataclysms. Few other countries have
national identities with such a long and vibrant history. The roots of the present day human
institutions lie deeply buried in the past. This is also true about the country‘s law and legal
system. The legal system of a country at any given time cannot be said to be creation of one
man for one day; it represents the cumulative effect of the endeavour, experience, thoughtful
planning and patient labour of a large number of people throughout generations. The modern
judicial system in India started to take shape with the control of the British in India during the
17th century. The British Empire continued till 1947, and the present judicial system in India
owes much to the judicial system developed during the time of the British.
The legal systems of the world today are generally based on one of three basic systems: civil
law, common law, and religious law – or combinations of these. However, the legal system of
each country is shaped by its unique history and so incorporates individual variations.
CIVIL LAW
Civil law is the most widespread system of law around the world. It is also sometimes known
as Continental European law. The central source of law that is recognized as authoritative are
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codifications in a constitution or statute passed by legislature, to amend a code. While the
concept of codification dates back to the Code of Hammurabi in Babylon ca. 1790 BC, civil
law systems mainly derive from the Roman Empire, and more particularly, the Corpus Juris
Civilis issued by the Emperor Justinian ca. AD 529. This was an extensive reform of the law
in the Byzantine Empire, bringing it together into codified documents. Civil law was also
partly influenced by religious laws such as Canon law and Islamic law. Civil law today, in
theory, is interpreted rather than developed or made by judges. Only legislative enactments
(rather than legal precedents, as in common law) are considered legally binding.
Scholars of comparative law and economists promoting the legal origins theory usually
subdivide civil law into four distinct groups:
French civil law: in France, the Benelux countries, Italy, Romania, Spain and former
colonies of those countries;
German civil law: in Germany, Austria, Switzerland, former Yugoslav republics,
Greece, Portugal and its former colonies, Turkey, Japan, South Korea and the
Republic of China;
Scandinavian civil law: in Denmark, Norway and Sweden. As historically integrated
in the Scandinavian cultural sphere, Finland and Iceland also inherited the system.
Chinese law: a mixture of civil law and socialist law in use in the People's Republic of
China.
COMMON LAW
Common law and equity are systems of law whose sources are the decisions in cases by
judges. Alongside, every system will have a legislature that passes new laws and statutes. The
relationships between statutes and judicial decisions can be complex. In some jurisdictions
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such statutes may overrule judicial decisions or codify the topic covered by several
contradictory or ambiguous decisions. In some jurisdictions judicial decisions may decide
whether the jurisdiction's constitution allowed a particular statute or statutory provision to be
made or what meaning is contained within the statutory provisions. Statutes were allowed to
be made by the government. Common law developed in England, influenced by Anglo-Saxon
law and to a much lesser extent by the Norman conquest of England which introduced legal
concepts from Norman law, itself having origins in Anglo-Saxon law. Common law was later
inherited by the Commonwealth of Nations, and almost every former colony of the British
Empire has adopted it (Malta being an exception). The doctrine of stare decisis or precedent
by courts is the major difference to codified civil law systems.
Common law is currently in practice in Ireland, most of the United Kingdom (England and
Wales and Northern Ireland), Australia, New Zealand, India (excluding Goa), Pakistan, South
Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) and
many other places. In addition to these countries, several others have adapted the common
law system into a mixed system. For example, Nigeria operates largely on a common law
system, but incorporates religious law.
In the European Union the Court of Justice takes an approach mixing civil law (based on the
treaties) with an attachment to the importance of case law. One of the most fundamental
documents to shape common law is Magna Carta[5] which placed limits on the power of the
English Kings. It served as a kind of medieval bill of rights for the aristocracy and the
judiciary who developed the law.
RELIGIOUS LAW
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Religious law refers to the notion of a religious system or document being used as a legal
source, though the methodology used varies. For example, the use of Jewish Halakha for
public law has a static and unalterable quality, precluding amendment through legislative acts
of government or development through judicial precedent; Christian Canon law is more
similar to civil law in its use of civil codes; and Islamic Sharia law (and Fiqh jurisprudence)
is based on legal precedent and reasoning by analogy (Qiyas), and is thus considered similar
to common law.
The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon law in
some Christian groups. In some cases these are intended purely as individual moral guidance,
whereas in other cases they are intended and may be used as the basis for a country's legal
system. The latter was particularly common during the Middle Ages.
The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most
widely used religious law, and one of the three most common legal systems in the world
alongside common law and civil law. It is the most protected divine law, because, the
majority of the rulings of Sharia law are based on the Qur'an and Sunnah, while a small
fraction of its rulings are based on the Ulema (jurists) who used the methods of Ijma
(consensus), Qiyas (analogical deduction), Ijtihad (research) and Urf (common practice) to
derive Fatwā (legal opinions). An Ulema was required to qualify for an Ijazah (legal
doctorate) at a Madrasah (school) before they could issue Fatwā. During the Islamic Golden
Age, classical Islamic law may have had an influence on the development of common law
and several civil law institutions. Sharia law governs a number of Islamic countries, including
Saudi Arabia and Iran, though most countries use Sharia law only as a supplement to national
law. It can relate to all aspects of civil law, including property rights, contracts or public law.
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History
Before the arrival of the British in India, India was governed by laws based on The
Arthashastra, dating from the 400 BC, and the Manusmriti from 100 AD. In fact there existed
two codes of laws one the Hindu code of laws and the other Muslim code of laws. They were
influential treatises in India, texts that were considered authoritative legal guidance.
Manusmriti's central philosophy was tolerance and pluralism. The Judiciary,the Executive,
and the Legislature were the same person the King or the Ruler of the Land. But the villages
had considerable independence, and had their own panchayth system to resolve disputes
among its members. Only a bigger feud merited a trans village council. This tradition in India
continued beyond the Islamic conquest of India, and through to the Middle Ages. Islamic law
"The Sharia" was applied only to the Muslims of the country. But this tradition, along with
Islamic law, was supplanted by the common law when India became part of the British
Empire. The history of Modern Judicial System in India starts from there.
Judicial Administration in Ancient India
Law in ancient India meant ―Dharma‖ in the broader sense. The Vedas, regarded as divine
revelation, were the supreme source of authority for all codes which contained what was then
understood as law or dharma. The traditional records have governed and molded the life and
evolution of the Hindu community from age to age. These are supposed to have their source
in the Rigveda.
Justice was administered in ancient India according to the rules of civil and criminal law as
provided in the Manusmriti. There was a regular system of local courts from which an appeal
lay to the superior court at the capital, and from there to the King in his own court. The
King‘s Court was composed of himself, a number of judges, and his domestic chaplain who
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directed his conscience; but they only advised and the decision rested with the King.
Arbitrators in three gradations existed below the local courts: first of kinsmen, secondly of
men of the same trade, and thirdly, of townsmen. An appeal lay from the first to the second,
from the second to the third, and from the third to the local court. Thus under this system
there were no less than five appeals. Decision by arbitration, generally of five (Panches),
was very common when other means of obtaining justice were not available.
Legal System in India during the British Period
India has one of the oldest legal systems in the world. Its law and jurisprudence stretches
back centuries, forming a living tradition which has grown and evolved with the lives of its
diverse people. The history of the present judicial system may be traced back to the year
1726, when a Charter was issued by King George I for bringing about important changes in
the judicial administration of the Presidency Towns of Bombay, Calcutta and Madras. The
system of appeals from India to the Privy Council in England was introduced by this Charter
in 1726.
In order to bring about better management of the affairs of the East India Company, the East
India Company Regulating Act of 1773 was promulgated by the King. This Act subjected
the East India Company to the control of the British Government and made a provision for
His Majesty by Charters or Letters Patent to establish the Supreme Court of Judicature at Fort
William at Calcutta, superseding the then prevalent judicial system. The Supreme Court of
Judicature at Fort William was established by a letter patent issued on March 26, 1774. This
Court, as a court of record, had full power and authority to hear and determine all complaints
against any of His Majesty‘s subjects for any crimes and also to entertain, hear and determine
any suits or actions against any of His Majesty‘s subjects in Bengal, Bihar and Orissa. Two
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more Supreme Courts, conceived along the same lines as that of the Supreme Court of
Calcutta, were established at Madras and Bombay by King George III through Charters
issued on 26th December, 1800 and on 8th December, 1823 respectively
In order to bring about better management of the affairs of the East India Company, the East
India Company Regulating Act of 1773 was promulgated by the King. This Act subjected
the East India Company to the control of the British Government and made a provision for
His Majesty by Charters or Letters Patent to establish the Supreme Court of Judicature at Fort
William at Calcutta, superseding the then prevalent judicial system. The Supreme Court of
Judicature at Fort William was established by a letter patent issued on March 26, 1774. This
Court, as a court of record, had full power and authority to hear and determine all complaints
against any of His Majesty‘s subjects for any crimes and also to entertain, hear and determine
any suits or actions against any of His Majesty‘s subjects in Bengal, Bihar and Orissa. Two
more Supreme Courts, conceived along the same lines as that of the Supreme Court of
Calcutta, were established at Madras and Bombay by King George III through Charters
issued on 26th December, 1800 and on 8th December, 1823 respectively.
The role of the Privy Council has been a great unifying force and the instrument and
embodiment of the rule of law in India. The Judicial Committee of the Privy Council was
made a Statutory Permanent Committee of legal experts to hear appeals from the British
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Colonies in the year 1833 by an Act passed by the British Parliament. Thus, the Act of 1833
transformed the Privy Council into a great imperial court of unimpeachable authority.
The Indian High Court‘s Act 1861 reorganized the then prevalent judicial system in the
country by abolishing the Supreme Courts at Fort William, Madras, and Bombay, and also
the then existing Sadar Adalats in the Presidency Towns. The High Courts were established
having civil, criminal, admiralty, vice-admiralty, testimony, intestate, and matrimonial
jurisdiction, as well as original and appellate jurisdiction. Provincial autonomy was
established in India with the establishment of the Government of India Act, 1935, which
introduced responsibility at the provincial level and sought the Union of British Indian
Provinces with the rulers of Estate in a federation. As a federal system depends largely upon
a just and competent administration of the law between governments themselves, the 1935
Act provided for the establishment of the Federal Court, forerunner of the Supreme Court of
India. The Federal Court was the second highest Court in the judicial hierarchy in India.
The Federal Court was the first Constitutional Court and also the first all-India Court of
extensive jurisdiction, and it had Original Jurisdiction in matters where there was dispute
between the provinces or federal States. It was also the Appellate Court for the judgments,
decrees, or final orders of the High Courts. Thus, the Federal Court of India had original,
appellate and advisory jurisdiction. The doctrine of precedent in India also had its roots in
Federal Court as the law declared by the Federal Court and Privy Council has been given
binding affect on all the courts in British India.
Constitution of India
The Indian Constitution is basically federal in form and is marked by the traditional
characteristics of a federal system, namely Supremacy of the Constitution, division of power
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between the Union and State, and the existence of an independent judiciary in the Indian
Constitution. The three organs of the State – State, Legislature and Judiciary – have to
function within their own spheres demarcated under the Constitution. In other words, the
doctrine of Separation of Powers has been implicitly recognized by the Indian Constitution.
The basic structure of the Constitution is unchangeable and only such amendments to the
Constitution are allowed which do not affect its basic structure or rob it of its essential
character. The Constitution of India recognizes certain basic fundamental rights for every
citizen of India, such as the Right to Equality, the Right to Freedom, the Right against
exploitation, the Right to Freedom of Religion, Cultural and Educational rights, and the Right
to Constitutional Remedies. Any infringement of fundamental rights can be challenged by
any citizen of India in the court of law. The Constitution of India also prescribes some
fundamental duties on every citizen in India.
Union and State Judiciary
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Chapter IV of the Constitution of India deals with the ―Union Judiciary,‖ which provides
for the establishment and constitution of the Supreme Court. The Supreme Court, since its
inception, was empowered with jurisdiction far greater than that of any comparable court
anywhere in the world.
As a federal court, it has exclusive jurisdiction to determine disputes between the Union of
India and any state and the states inter-se. Under Article 32, it issue writs for enforcement of
fundamental rights guaranteed under the Constitution of India.
As an appellate court, it could hear appeals from the state high courts on civil, criminal and
constitutional matters. It has the special appellate power under Article 136 to grant leave to
appeal from any tribunal or court. Thus, it is a forum for the redressing of grievance not only
in its jurisdiction as conferred by the constitution, but also as a platform and forum for every
grievance in the country which requires judicial intervention. The Supreme Court, with the
present strength of 25 judges and the chief justice, is the repository of all judicial powers at
the national level. Supreme Court judges holds office until they reach the age of 65 years.
The State Judiciary consists of a high court for each state and subordinate courts in each
district. Each high court consists of a chief justice and a number of puisne judges. The high
court judges are appointed by the President after consultation with the chief justice of India
and the chief justice of that state. The high court judge holds office until he reaches the age
of 62 years.
The Supreme Court of India
On 28 January 1950, two days after India became a Sovereign Democratic Republic, the
Supreme Court of India was born. The inauguration took place in the Princes Chamber in the
Parliament building complex which also housed both the Rajya Sabha and the Lok Sabha,
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also known as the Council of States and the House of the People, respectively. It was here, in
this Chamber of Princes, that the Federal Court of India had sat for 12 years between 1937
and 1950. This was to be the home of the Supreme Court for years that were to follow its
creation, until the Supreme Court of India acquired its own building in 1958.
The inaugural proceedings were simple, but impressive. They began at 9.45 a.m. when the
Judges of the Federal Court - Chief Justice Harilal J.Kania and Justices [Saiyid Fazl Ali], [M.
Patanjali Sastri], [Mehr Chand Mahajan], [Bijan Kumar Mukherjea] and [S.R.Das] - took
their seats. In attendance were the Chief Justices of the High Courts of Allahabad, Bombay,
Madras, Orissa, Assam, Nagpur, Punjab, Saurashtra, Patiala and the East Punjab States
Union, Mysore, Hyderabad, Madhya Bharat and Travancore-Cochin. Along with the
Attorney General for India, Pankaj Singh Kushwah were present the Advocate Generals of
Bombay, Madras, Uttar Pradesh, Bihar, East Punjab, Orissa, Mysore, Hyderabad and Madhya
Bharat. Present too, were Prime Minister, other Ministers, Ambassadors and diplomatic
representatives of foreign States, a large number of Senior and other Advocates of the Court
and other distinguished visitors.
Taking care to ensure that the Rules of the Supreme Court were published and the names of
all the Advocates and agents of the Federal Court were brought on the rolls of the Supreme
Court, the inaugural proceedings were over and put under part of the record of the Supreme
Court.
After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in a
part of the Parliament House. The Court moved into the present building in 1958. The
building is shaped to project the image of scales of justice. The Central Wing of the building
is the Centre Beam of the Scales. In 1979, two New Wings - the East Wing and the West
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Wing - were added to the complex. In all there are 15 Court Rooms in the various wings of
the building. The Chief Justice's Court is the largest of the Courts located in the Centre of the
Central Wing.
The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7
puisne Judges - leaving it to Parliament to increase this number. In the early years, all the
Judges of the Supreme Court sat together to hear the cases presented before them. As the
work of the Court increased and arrears of cases began to accumulate, Parliament increased
the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986.
As the number of the Judges has increased, they sit in smaller Benches of two and three -
coming together in larger Benches of 5 and more only when required to do so or to settle a
difference of opinion or controversy.
The Supreme Court of India comprises the Chief Justice and 30 other Judges appointed by
the President of India, as the sanctioned full strength. Supreme Court Judges retire upon
attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a
person must be a citizen of India and must have been, for at least five years, a Judge of a
High Court or of two or more such Courts in succession, or an Advocate of a High Court or
of two or more such Courts in succession for at least 10 years or he must be, in the opinion of
the President, a distinguished jurist. Provisions exist for the appointment of a Judge of a High
Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court
or High Courts to sit and act as Judges of that Court.
The Constitution seeks to ensure the independence of Supreme Court Judges in various ways.
A Judge of the Supreme Court cannot be removed from office except by an order of the
President passed after an address in each House of Parliament supported by a majority of the
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total membership of that House and by a majority of not less than two-thirds of members
present and voting, and presented to the President in the same Session for such removal on
the ground of proved misbehavior or incapacity. A person who has been a Judge of the
Supreme Court is debarred from practicing in any court of law or before any other authority
in India.
The proceedings of the Supreme Court are conducted in English only. Supreme Court Rules,
1966 are framed under Article 145 of the Constitution to regulate the practice and procedure
of the Supreme Court.
The Supreme Court of India is the highest court of the land as established by Part five,
Chapter four of the Constitution of India. According to the Constitution of India, the role of
the Supreme Court is that of a federal court, guardian of the Constitution and the highest
court of appeal.
Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of
the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against
judgments of the High Courts of the states and territories. However, it also takes writ
petitions in cases of serious human rights violations or any petetion filed under Article 32
which is the right to constitutional remedies or if a case involves a serious issue that needs
immediate resolution. The Supreme Court of India had its inaugural sitting on 28 January
1950, and since then has delivered more than 24,000 reported judgments.
Independence of Judiciary
The principle of the independence of justice is a basic feature of the constitution. In a
country like India, which is marching along the road to social justice with the banner of
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democracy and the rule of law, the principle of independence of justice should not only be
treated as an abstract conception but also a living faith.
Independence of justice deals with the independence of the individual judges in relation to
their appointment, tenure, and payment of salaries, and also non-removal except by process
of impeachment. It also means the ―Institutional Independence of the Judiciary‖. The
concept of independence of justice is a noble concept which inspires the constitutional
scheme and constitutes the foundation on which rests the edifice of our democratic polity.It is
absolutely essential that the judiciary must be free from executive pressure or influence and
this has been secured by the constitution maker by making elaborate provisions in the
constitution of India.
Issues
According to the World Bank, "although India's courts are notoriously inefficient, they at
least comprise a functioning independent judiciary A functioning judiciary is the guarantor of
fairness and a powerful weapon against corruption. But people‘s experiences in fall far short
of this ideal. Corruption in the judiciary goes beyond the bribing of judges. Court personnel
are paid off to slow down or speed up a trial, or to make a complaint go away. Judges are also
subject to pressure from above, with legislators or the executive using their power to
influence the judiciary, starting with skewed appointment processes. Citizens are often
unaware of their rights, or resigned, after so many negative experiences, to their fate before a
corrupt court. Court efficiency is also crucial, as a serious backlog of cases creates
opportunities for demanding unscheduled payments to fast-track a case.
Judicial backlog
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Indian courts have large backlogs. For instance, the Delhi High Court has a backlog of 466
years according to its chief justice. This is despite the average processing time of four
minutes and 55 seconds in the court. In Uttam Nakate case, it took two decades to solve a
simple employment dispute. However it need to be mentioned that the concept of backlogs
doesn't describe the actual reason for some many cases lying in the courts. Rather the term
"backlog" has been misused and the term "pendency" is the right word for describing the
large number of cases pending in the courts today. As could be understood, the largest
number of cases that are actually pending in the Indian Courts are that of minor Motor
Vehicle Cases, petty crimes such as stealing, abusing, insult, slap, etc. It is an established fact
which the Govt. of India accepts that there is 40% shortage of judicial staff. Opposition and
ruling party's corrupt politicians profit from the delays in the system.
On January 12, 2012, a Supreme Court bench said that people's faith in judiciary was
dwindling at an alarming rate, posing a grave threat to constitutional and democratic
governance of the country. It sincerely acknowledged few of the serious problems such as -
1. Large number of vacancies in trial courts,
2. Unwillingness of lawyers to become judges,
3. Failure of the apex judiciary in filling vacant HC judges posts,
4. The dragging of feet by the Centre in keeping its promises.
It wanted to seek answers from the government on amicus curiae's suggestion that access to
justice must be made a constitutional right and consequently the executive must provide
necessary infrastructure for ensuring every citizen enjoyed this right. It also wanted the
Government of India to detail the work being done by the National Mission for Justice
Delivery and Legal Reforms.
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Judicial corruption
Corruption is rampant in India's courts. According to Transparency International, judicial
corruption in India is attributable to factors such as "delays in the disposal of cases, shortage
of judges and complex procedures, all of which are exacerbated by a preponderance of new
laws" Most disturbing is the fact that corruption has reached the highest judicial forum i.e.
Supreme Court of India. Some notable cases include:
1. In December 2009, noted social activist, campaigner for judicial accountability and a
Supreme Court lawyer Prashant Bhushan in response to the notice of contempt issued
by the Supreme Court (for his interview to a news magazine in which he had said,
"out of the last 16 to 17 Chief Justices, half have been corrupt"), filed an affidavit
standing by his earlier comments saying: "It is My Honest And Bonafide Perception".
Later In September 2010, he submitted a supplementary affidavit in which he
submitted evidence to back his allegations. [10] In November 2010, former Law
Minister, Shanti Bhushan echoed Prashant Bhushan's claim saying: ―It is my firm
belief that there is a lot of corruption in judiciary. I am saying the same thing which
Prashant Bhushan had said. The question of apology does not arise. I will rather prefer
to go to jail. The judiciary cannot be cleansed unless the matter is brought into the
public domain‖.
2. In June 2011, a very widely respected former Chief Justice of India J. S. Verma
echoed these views saying that "certain individuals with doubtful integrity were
elevated within the higher judiciary" He cited the case of Justice M. M. Punchhi,
whose impeachment had been sought by the campaign for judicial accountability.
Justice Verma said he was willing to permit the allegations to be probed but the
political executive refused to allow this. Justice Verma further explained, "Because
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the allegations, if proved, were serious and therefore they required to be investigated,
so that one could know whether they were true or not." He acknowledged that Justice
Punchhi was later elevated to CJI despite facing "serious allegations". Justice Verma
also talked about another former CJI K G Balakrishnan's continuance as National
Human Rights Commission chairman. Justice Verma said, "He should have demitted
long back and if he doesn't do it voluntarily, the government should persuade him to
do that, otherwise, proceed to do whatever can be done to see that he demits office."
3. In November 2011, a former Supreme Court Justice Ruma Pal slammed the higher
judiciary for what she called the seven sins. She listed the sins as:
1. Turning a blind eye to the injudicious conduct of a colleague
2. Hypocrisy – the complete distortion of the norm of judicial independence
3. Secrecy – the fact that no aspect of judicial conduct including the appointment
of judges to the High and Supreme Court is transparent
4. Plagiarism and prolixity - meaning that very often SC judges lift whole
passages from earlier decisions by their predecessors and do not acknowledge
this – and use long-winded, verbose language
5. Self Arrogance – wherein the higher judiciary has claimed crass superiority
and independence to mask their own indiscipline and transgression of norms
and procedures
6. Professional arrogance – whereby judges do not do their homework and arrive
at decisions of grave importance ignoring precedent or judicial principle
7. Nepotism – wherein favors are sought and dispensed by some judges for
gratification of varying manner.
E-Courts Mission Mode Project
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The E-courts project was established in the year 2005.. According to the project, all the courts
including taluk courts will get computerized. As per the project in 2008, all the District courts
were initialized under the project. In 2010, all the District court were computerized. The entry
of back log case has started. The IT department had one system officer and two system
assistants in each court. They initiated that the services in the Supreme Court in June 2011.
The case lists of most district courts are available in http://lobis.nic.in. This website is
updated daily. Now the establishment work is going on taluk courts. The project also include
producing witnesses through video conference. Filing cases, proceedings, and all other details
will be in computers.
Jurisdiction and seat of High Courts of India
Name
Year of
Establishment
Jurisdiction Seats
Allahabad 1866 Uttar Pradesh Allahabad(Bench at Lucknow)
Andhra
Pradesh1956 Andhra Pradesh Hyderabad
Bombay 1862
Maharashtra, Goa, Dadra
and Nagar Haveli and
Daman and Diu
Mumbai(Benches at Nagpur,
Panaji and Aurangabad)
Calcutta 1862 West BengalCalcutta(Circuit Bench at Port
Blair)
Chhattisgarh 2000 Chhattisgarh Bilaspur
Delhi 1966 Delhi Delhi
Guwahati 1948 Assam, Manipur, Guwahati(Benches at Kohima,
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Meghalaya,
Nagaland,Tripura, Mizoram
and Arunachal Pradesh
Aizwal, Itanagar
&Imphal.Circuit Bench at
Agartala &Shillong)
Gujarat 1960 Gujarat Ahmedabad
Himachal
Pradesh1971 Himachal Pradesh Shimla
Jammu
&Kashmir1928 Jammu &Kashmir Srinagar &Jammu
Jharkhand 2000 Jharkhand Ranchi
Karnataka 1884 Karnataka Bangalore
Kerala 1958 Kerala &Lakshadweep Ernakulam
Madhya
Pradesh1956 Madhya Pradesh
Jabalpur(Benches at Gwalior
and Indore)
Madras 1862 Tamil Nadu & Pondicherry Chennai (Bench at Madurai)
Orissa 1948 Orissa Cuttack
Patna 1916 Bihar Patna
Punjab &
Haryana1975
Punjab,Haryana
&ChandigarhChandigarh
Rajasthan 1949 Rajastan Jodhpur(Bench at Jaipur)
Sikkim 1975 Sikkim Gangtok
Uttarakhand 2000 Uttarakhand Nainital
The first thing anyone should know about the Indian legal system is that it has one of the, if
not the longest, written constitutions in the world. This came into force on 26th January, 1950.
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It was prepared by the Constituent Assembly which consisted of about 300 members. A
Drafting Committee was set up from among its members with Dr. B. R. Ambedkar as the
Chairman of this Committee. While all the articles were discussed and debated in the
Constituent Assembly it was the Drafting Committee which had the largest share of the work
of drafting the Constitution. It is a flexible Constitution and as a consequence has been
amended 94 times in the last fifty seven years since it came into force. There is only single
citizenship in India. It provides for an independent judiciary. The Supreme Court is the
highest Court of the land and judges of the Supreme Court and the various High Courts are
appointed by the President of India in consultation with the Chief Justice of India and other
judicial authorities. The doctrine of judicial review is implicit in the Constitution. The
Constitution represents the aspirations of the people of Independent India.
Two hundred years of colonial rule in the Indian subcontinent brought about several changes
in various fields – be it the economy, society, the political institutions or the legal system. It
completely transformed the laws and the legal system in the region. .A few of these changes
were brought about inadvertently, mostly due to ignorance regarding the nature of the laws
and the legal system followed by the people in the that the British went on to rule. This was
especially so with reference to the laws relating to marriage, inheritance, succession etc.
Thus, if one were to identify the three most important characteristics of the Indian legal
system then I would say that they are firstly, the fact that we follow the common law system,
secondly, the codified laws and the thirdly the personal laws or the lack of a civil code. From
the time that the British began to administer the territory that they acquired in 1764 they
inadvertently began to change the law and the administration of justice.
Later developments in the subcontinent were, however, much more conscious. All these
developments went on to influence the Constitution of India as also her legal system. English
Law was introduced initially through the application of the principles of justice, equity and
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good conscience, as interpreted by the English judges and through the decisions of the Privy
Council in England. Later through the codification of the various laws and procedure English
law was imported into the subcontinent and thus one will find a great deal of similarity in the
criminal law and procedure of the countries in the South Asia region even today. And also
find similarities between many of the laws and the legal systems in this region and those of
other Commonwealth countries. As a consequence decisions of the English and American
courts are cited and used in many cases decided by the Supreme Court of India. The next
important influence of Colonial rule to be still found in India is that virtual all the laws are
codified in one form or the other. Most of these were codified during colonial rule and
continue to be the law even today while a few others were amended and subsequently
replaced by new statutes, like the Criminal Procedure Code, 1973 (1862). The various
codified enactments are the Indian Penal Code, 1860, Indian Evidence Act, 1872, The Indian
Contract Act, 1872, The Transfer of Property Act, 1882, The Civil Procedure Code,1908, The
Negotiable Instruments Act, 1881, etc.This process of codification was not of the prevailing
laws in the Indian subcontinent, but of the English laws. Though there were local laws
relating to commercial topics,contract in general or civil wrongs and the Hindu and Muslim
laws of evidence, the British during the course of the nineteenth century either ignored the
prevailing law or abolished them and introduced English law through the process of
codification. Thus, one will again see a great deal of similarity between these laws and the
English law as a consequence.
The third most drastic change was in the area of personal laws. The British administrators
presumed that the laws relating to marriage, inheritance, succession etc. were derived from
the religious texts of the people, instead of customary practices in the different regions and as
a consequence laws that were prescribed about a thousand years ago, particularly for upper
caste ―Hindus‖,81 were codified and uniformly applied to all ―Hindus‖, while the Quran and
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more specifically a legal text like the al-Hedaya was applied to everyone categorized as
Muslims.82 As a consequence in the course of administering justice for the people of this
region they inadvertently not only changed the identities of the people but also changed the
very laws that were actually in force, viz., customary law and instead brahmanised the law
for all non muslims and non Christians while they enforced the sharia law on all muslims,
irrespective of the practices followed by the various communities based on their historical
development. Thus, even today, there is no one civil law that governs marriage, inheritance
etc. Instead each religious community is governed by a set of codified laws for these matters.
As a consequence even today the so called personal law in India is still presumed to be
derived from the religious texts of the communities that exist in India, viz., the Hindus, the
Muslims, the Christians and the Parsis. There is no Uniform Civil Code, though there is the
Special Marriage Act which is the civil law available, if one chooses to be married under it.
Apart from these developments, in the context of India today some of the most critical issues
before the Government and thus, the judiciary, are the questions of delay in justice because of
the backlog of cases. As an example, just in the Supreme Court of India itself, there was a
backlog of over 10,000 cases at the beginning of this year.
The Judiciary has sought to remedy this position by computerizing the courts and by setting
up fast track courts, first in the criminal justice system and now in the civil justice system as
well. In the pre-colonial days the administration of justice was not based on adversarial
system, but on an adjudicatory process that sought through arbitration and negotiation to
bring about a compromise. This was available at the local level and did not involve distance
or financial expenses as the present system involves. Another reason for the backlog of cases
is the fact that all judicial appointments have not been made. There are several vacancies at
all levels of the judiciary.
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Secondly, is the question of access to justice for various marginalized groups like women, the
dalits, tribals etc. Though there is provision for legal aid in the Constitution itself and The
Legal Services Authorities Act 1986, the marginalised groups either lack the awareness of the
law and their rights or are ignorant of the mechanisms through which they can access justice
and as a consequence except for interventions through Art 32 of the Constitution through
filing of writ petitions83 by organizations or groups most marginalised communities have not
been able to avail of the rights granted to them in the Constitution leading to a sense of
hopelessness and frustration. The Legal Aid Boards in many of the States and a few of the
law colleges regularly conduct legal awareness programmes and try to even provide some
legal aid through their legal services clinics. When I speak of access to justice I am referring
to the two parts to it, one is the investigation and the other is prosecution of the case itself.
What we find in the context of India is the inherent biases of caste, class, gender, religion etc
which come in the way of the investigating officers registering the cases filed by members of
these marginalised groups and in the context of investigation resulting in low levels of
conviction in cases from these groups. As a consequence in recent days there has been the
very uncomfortable trend in one of the states of people taking justice into their hands.
A third critical issue before the judiciary today is the issue of social justice, a mandate of the
Constitution, an eg., is the gender imbalance in the judicial system and in the administration
of justice. In over fifty years of the Supreme Court‘s existence there have been only three
women judges, similarly in the High Court of Karnataka, in about fifty years since the High
Court was established there has been only one woman judge, despite the fact that there are
over 13,000 women lawyers in the State. In the context of globalisation and privatization
which was initiated in the 1990‘s this is one of the pressing concerns given the widening gap
between the haves and the have-nots.
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Given that the current economic policy is not in keeping the provisions of Part IV of the
Constitution which provides guidelines aiming to provide social and economic justice we find
a recent trend of the Supreme Court which is in keeping with the state‘s policy rather than
with the Directive Principles of State Policy. Though originally and for a long time as I have
mentioned in the earlier paragraph it was through the Supreme Court‘s interpretation and
intervention that social justice was actually carried out.
Law and the Legal system being seen as the means by which justice and equality can be
achieved in a liberal democratic society these new trends are obviously matters of concern for
all well meaning members of civil society in India. Increasingly there has been the suggestion
to decentralize the justice administration system and revert to a modified version of the
precolonial justice system.
Law Commission of India
The Law Commission of India was started in 1955 by an executive order. In order to
confront new situations and problems which arise from time to time and to amend law which
calls for amendment, a body like the Law Commission is absolutely essential. This is
because it is a body which is not committed to any political party and which consists of
judges and lawyers, who are expert in the field and who would bring to bear upon the
problems purely judicial and impartial minds. As the parliament is very busy in day-to-day
debates and discussions, its members do not have the necessary time to consider legal
changes required to meet the new situations and problems in a constructive manner. For that
the Law Commission may be able to serve its purpose effectively. The function of the law
commission is to study the existing laws, suggest amendments to the same if necessary, and
to make recommendations for enacting new laws. The recommendations for amendment of the
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existing laws are made by the commission either suo motu or on the request of the
government.
Presently, the eighteenth Law Commission is in existence. The Law Commission in India
has brought out 207 scholarly reports to date on various legal aspects. The full text for each
report is available on the commission‘s website.
Legal Profession
The profession of law is called a noble profession, and lawyers are a force for the
perseverance and strengthening of constitutional government because they are guardians of
the modern legal system. The first step in the direction of organizing a legal profession in
India was taken in 1774 with the establishment of the Supreme Court at Calcutta. The
Supreme Court was empowered “to approve, admit and enroll such and so many
advocates, Vakils and Attorneys-at-law” as to the court “shall seem meet”. The Bengal
Regulation VII of 1793 for the first time created a regular legal profession for the companies‘
courts. Other, similar regulations were passed to regulate the legal profession in the
Companies courts in Bengal, Bihar, Orissa, Madras, and Bombay.
The Legal Practitioner Act of 1879 was enacted to consolidate and amend the law relating to
legal practitioners. This empowered an advocate/Vakil to enroll on the roll in any high court
and to practice in all the Courts subordinate to the high court concerned, and also to practice
in any court in British India other than the high court on whose roll he was not enrolled.
After independence of India, it was felt that the judicial administration in India should be
changed according to the needs of the time. Presently, the legal profession in India is
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governed by the Advocates Act of 1961, which was enacted on the recommendation of the
Law Commission of India to consolidate the law relating to legal practitioners and to provide
for the constitution of the Bar Council and the All India Bar. Under the Advocates Act, the
Bar Council of India has been created as a statutory body to admit persons as advocates on its
roll, to prepare and maintain such roll, to entertain and determine instances of misconduct
against advocates on its roll and to safeguard the rights, privileges, and interests of advocates
on its roll. The Bar Council of India is also an apex statutory body which lays down
standards of professional conduct and etiquette for advocates, while promoting and
supporting law reform.
Legal Education
Legal education in India is regulated by the Bar Council of India, which is a statutory body
constituted under the Advocates‘ Act of 1961. There are two types of graduate level law
courses in India:
(i) A 3 year course after graduation; and,
(ii) A 5 year integrated course after the 10 + 2 leading to a graduate degree
with honors and a degree in law.
The Bar Council of India rules prescribe norms for recognition of the universities/colleges
imparting legal education. A graduate from a recognized law college, under the Advocates
Act of 1961, is only entitled to be registered as an advocate with the Bar Council, and any
law graduate registered with Bar Council is eligible to practice in any court of law in India.
Manifestations of Legal Literature
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Legal fraternity may need different types of information, such as case laws, statutory
provisions, rules framed under any act, object and reasons of any act, amendment of any act,
notifications issued under any particular statute, debates in parliament at the time of
enactment of any particular act, or academic articles on a given topic in different situations.
Legal literature manifests itself in many forms such as:
(i) Bare Acts
(ii) Commentaries on specific laws
(iii) Manuals/local acts
(iv) Reports
a) Law Commission Reports
b) Committee/Commission Reports
c) Annual Reports
d) Parliamentary Committee Reports
Joint Committee
Select Committee
Standing C
(v) Gazettes
a) Central Government
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b) State Government
(vi) Parliamentary Debates
Constituent Assembly Debates
Lok Sabha Debates
Rajya Sabha Debates
(vii) Parliamentary Bills
Lok Sabha Bills
Rajya Sabha Bills
State Legislature Bills
(viii) Law Journals
Academic Journals (containing articles only)
Law Reports (containing only the full text of case laws)
Hybrid, i.e. a combination of both articles and case laws. Some of the journals
also publish statutory materials such as acts, amendments, rules, etc.
Only legislative materials such as acts, rules, notifications, etc.
(ix) Digests
(x) Legal Dictionaries/Law Lexicons
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(xi) Legal encyclopedic works: such as American jurisprudence, corpus juris
secundum, Halsbury law of England, and Halsbury laws of India.
Law Reporting in India
The theory of binding force of precedent is firmly established in England. A judge is bound
to follow the decision of any court recognized as competent to bind him, and it becomes his
duty to administer the law as declared by such a court. The system of precedent has been a
powerful factor in the development of the common law in England.Because of common law
heritage, the binding force of precedents has also been firmly established in India, meaning
thereby that the judgments delivered by the superior courts are as much the law of the country
as legislative enactments.
The theory of precedent brings in its wake the system of law reporting as its necessary
concomitant. Publication of decisions is a condition necessary for the theory of precedent to
operate; there must be reliable reports of cases. If the cases are to be binding, then there must
be precise records of what they lay down, and it is only then that the doctrine of stare decisis
can function meaningfully. The Indian Law Reports Act of 1875 authorizes the publication
of the reports of the cases decided by the high courts in the official report and provides that,
―No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it
the report of any case decided by any of the said High Courts on or after the said day other
than a report published under the authority of the Governor-General-in-Council.‖
Though the Law Reports Act gave authenticity to the official reports, it did not take away the
authority of unpublished precedents or give a published decision a higher authority than that
possessed by it as a precedent. A Supreme Court or high court decision is authoritative by
itself, not because it is reported.The practice of citing unreported decisions thus led to the
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publication of a large number of private reports. The unusual delay in publication of official
reports and incompleteness of the official reports made the private reports thrive, resulting
in a number of law reports in India being published by non-official agencies on a commercial
basis.
In India, there are more than 300 law reports published in the country. They cover a very
wide range and are published from various points of view. A ―union catalogue‖ compiled
by the Supreme Court Judges‘ Library of the current law journals subscribed by the libraries
of various high court and Supreme Court judges (appended at the end of this paper) gives
details of various law reports published from India. It also gives details of various foreign
law reports submitted by law libraries in India, which gives an idea of the ― foreign journals‖
being used by the legal fraternity in the country.
WHAT IS LAW?
Law is a system of rules, usually enforced through a set of institutions. It shapes politics,
economics and society in numerous ways and serves as a primary social mediator of relations
between people. Contract law regulates everything from buying a bus ticket to trading on
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derivatives markets. Property law
defines rights and obligations
related to the transfer and title
ofpersonal (often referred to as
chattel) and real property. Trust
law applies to assets held
forinvestment and financial
security, while tort law allows
claims for compensation if a
person's rights or property are harmed. If the harm is criminalized in a statute, criminal law
offers means by which the state can prosecute the perpetrator. Constitutional law provides a
framework for the creation of law, the protection of human rights and the election of political
representative.
Administrative law is used to review the decisions of government agencies, while
international law governs affairs between sovereign nation states in activities ranging from
trade to environmental regulation or military action. Writing in 350 BC, the Greek
philosopher Aristotle declared, "The rule of law is better than the rule of any individual."
Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction
can be made between civil law jurisdictions, which codify their laws, and common law
systems, where judge made law is not consolidated. In some countries, religion still informs
the law. Law provides a rich source of scholarly inquiry, into legal history, philosophy,
economic analysis or sociology. Law also raises important and complex issues concerning
equality, fairness and justice. "In its majestic equality", said the author Anatole France in
1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal
loaves of bread."
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In a typical democracy, the central institutions for interpreting and creating law are the
three main branches of government, namely an impartial judiciary, a democratic legislature,
and an accountable executive. To implement and enforce the law and provide services to the
public, a government's bureaucracy, the military and police are vital. While all these organs
of the state are creatures created and bound by law, an independent legal profession and a
vibrant civil society inform and support their progress.
ARE ETHICS AND LAWS TWO SIDES OF ONE COIN?
Most of the time laws are written, approved, and then enforced by the level of government
where they were written. For example, a State law is enforced by the state. A Federal law is
enforced by the Feds. In other words; State Laws and Government Laws go through a process
to get approved, written into law, and then are enforced. Ethics are like rules of conduct. For
example, Doctors have unwritten ethical rules or practices that they adhere to just because it's
the right thing to do. They have the responsibility to take care of you to the best of their
ability. It's ethically correct for a Doctor to do his best to help you with your medical malady,
but it's not a law that he has to. If a Doctor is unable to help you with your problem he has an
ethical responsibility to refer you to a specialist, but there is not a law saying that he has to do
that. Most occupations have ethics that come along with the job. They are not written done,
they are unspoken rules of conduct that people adhere to. For example an electrician has an
ethical responsibility to repair your house wiring correctly so that it works correctly and is
not a safety hazard for you.
Natural Law and Reason
Among intellectuals who consider themselves "scientific," the phrase "the nature of man is
apt to have the effect of a red flag on a bull. "Man has no nature!" is the modern rallying cry;
and typical of the sentiment of political philosophers today was the assertion of a
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distinguished political theorist some years ago before a meeting of the American Political
Science Association that "man's nature" is a purely theological concept that must be
dismissed from any scientific discussion. In the controversy over man's nature, and over the
broader and more controversial concept of "natural law," both sides have repeatedly
proclaimed that natural law and theology are inextricably intertwined. As a result, many
champions of natural law, in scientific or philosophic circles, have gravely weakened their
case by implying that rational, philosophical methods alone cannot establish such law: that
theological faith is necessary to maintain the concept. On the other hand, the opponents of
natural law have gleefully agreed; since faith in the supernatural is deemed necessary to
belief in natural law, the latter concept must be tossed out of scientific, secular discourse, and
be consigned to the arcane sphere of the divine studies. In consequence, the idea of a natural
law founded on reason and rational inquiry has been virtually lost.?
The believer in a rationally established natural law must, then, face the hostility of both
camps: the one group sensing in this position an antagonism toward religion; and the other
group suspecting that God and mysticism are being slipped in by the back door.
ETHICS AND LAW
Laws and ethics have common aim- defining proper and improper behavior. But the two are
not quite same. Laws are the society‘s attempt to formalize that is to reduce to written rules-
idea about what is right and what is wrong in various walks of like. However, it is rarely
possible for written rules to capture all the sublet variations that people give to ethics. Ethical
concepts are more complex than writing rules. Ethics deals with human dilemmas that
frequently go beyond the formal language of laws and the meanings given to legal rules.
Similarities and differences apart, legal rules help promote ethical behavior in organization.
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Some of the acts which seek to ensure fair business practices in our country are the
followings:
The Foreign Exchange Regulation Act, 1973, now replaced by FEMA.
The Companies Act, 1956.
The Monopolies and Restrictive Trade Practices Act, 1969.
The consumer Protection Act, 1986.
The Environment Protection Act, 1986.
The Essential Commodities Act, 1955.
Government policies on ethics
Cultural Expression as a Human Right :- Although there is no specific mention of ‗culture‘
or‗ethnicity‘, the UN Universal Declaration of Human Rights provides for the equality of
individuals, prohibits discrimination based on race/religion/language, and freedom of
religion. These protections are generally accepted to cover the right to collective protection of
culture.
Cultural Expression as reflected in Social Work Ethics:- The IFSW‘s Declaration of
Ethical Principles recognizes in its introduction that IFSW guidelines should be adapted to
differing cultural contexts. These principles prohibit discrimination on any basis (race,
religion, language, etc) and adhere to the UN declaration of human rights. It can be assumed
that these ethics encourage social workers to support their government‘s adopting policies
that fit these principles. Government policy on cultural diversity can have a major impact on
the practice of Social Work Of course, while social workers may refer to such broad
principles as the UN Declaration of Human Rights and the IFSW Declaration of Ethical
Principles when dealing with cultural diversity, these laudable standards do not always
translate into reality on the ground level of day-to-day practice. Both individual and structural
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barriers may exist. Being human themselves, social workers bring any number of biases to
their work and they also practice within the context of government policy on cultural
diversity. Governments world-wide have taken a variety of approaches to addressing cultural
diversity in policy. And since social workers often work in government regulated settings,
have their profession regulated by legislation and deal with the effects of other government
policy on their ‗clients‘, government policy without a doubt is a key shaping factor of
practice. If cultural rights are not being respected, government policy will shape the recourses
available to social workers and the people with whom they work.
How government policies affect the ethics
Sometimes it's easy to see when things go wrong in government: Elected officials take bribes;
candidates lie about their opponents; city officials make important public decisions in secret
meetings. Other times, the right thing is not so obvious: Should a councilmember represent
the wishes of the majority, even when he or she thinks the majority is wrong? Is it acceptable
for a governor to appoint a family member to his or her cabinet if the appointee is the best
person for the job? Whether the ethical issues are obvious or complicated, they are easier to
address if public servants have given some thought to the kinds of dilemmas they will
confront before a crisis occurs. The materials in this "primer" on government ethics are
intended to provide elected officials, government workers, and ordinary citizens with an
introduction to the basic questions that are likely to come up in the conduct of public
business.
A Framework for Thinking Ethically
We all have an image of our better selves-of how we are when we act ethically or are "at our
best." We probably also have an image of what an ethical community, an ethical business, an
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ethical government, or an ethical society should be. Ethics really has to do with all these
levels acting ethically as individuals, creating ethical organizations and governments, and
making our society as a whole ethical in the way it treats everyone.
Why Identifying Ethical Standards is Hard
There are two fundamental problems in identifying the ethical standards we are to follow:
On what do we base our ethical standards?
How do those standards get applied to specific situations we face?
If our ethics are not based on feelings, religion, law, accepted social practice, or science, what
are they based on? Many philosophers and ethicists have helped us answer this critical
question. They have suggested at least five different sources of ethical standards we should
use.
Five Sources of Ethical StandardsThe Utilitarian Approach
Some ethicists emphasize that the ethical action is the one that provides the most good or
does the least harm, or, to put it another way, produces the greatest balance of good over
harm. The ethical corporate action, then, is the one that produces the greatest good and does
the least harm for all who are affected-customers, employees, shareholders, the community,
and the environment. Ethical warfare balances the good achieved in ending terrorism with the
harm done to all parties through death, injuries, and destruction. The utilitarian approach
deals with consequences; it tries both to increase the good done and to reduce the harm done.
The Rights Approach
Other philosophers and ethicists suggest that the ethical action is the one that best protects
and respects the moral rights of those affected. This approach starts from the belief that
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humans have a dignity based on their human nature per se or on their ability to choose freely
what they do with their lives. On the basis of such dignity, they have a right to be treated as
ends and not merely as means to other ends. The list of moral rights -including the rights to
make one's own choices about what kind of life to lead, to be told the truth, not to be injured,
to a degree of privacy, and so on-is widely debated; some now argue that non-humans have
rights, too. Also, it is often said that rights imply duties-in particular, the duty to respect
others' rights.
The Fairness or Justice Approach
Aristotle and other Greek philosophers have contributed the idea that all equals should be
treated equally. Today we use this idea to say that ethical actions treat all human beings
equally-or if unequally, then fairly based on some standard that is defensible. We pay people
more based on their harder work or the greater amount that they contribute to an organization,
and say that is fair. But there is a debate over CEO salaries that are hundreds of times larger
than the pay of others; many ask whether the huge disparity is based on a defensible standard
or whether it is the result of an imbalance of power and hence is unfair.
The Common Good Approach
The Greek philosophers have also contributed the notion that life in community is a good in
itself and our actions should contribute to that life. This approach suggests that the
interlocking relationships of society are the basis of ethical reasoning and that respect and
compassion for all others-especially the vulnerable-are requirements of such reasoning. This
approach also calls attention to the common conditions that are important to the welfare of
everyone. This may be a system of laws, effective police and fire departments, health care, a
public educational system, or even public recreational areas.
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The Virtue Approach
A very ancient approach to ethics is that ethical actions ought to be consistent with certain
ideal virtues that provide for the full development of our humanity. These virtues are
dispositions and habits that enable us to act according to the highest potential of our character
and on behalf of values like truth and beauty. Honesty, courage, compassion, generosity,
tolerance, love, fidelity, integrity, fairness, self-control, and prudence are all examples of
virtues. Virtue ethics asks of any action, "What kind of person will I become if I do this?" or
"Is this action consistent with my acting at my best?"
Putting the Approaches Together
Each of the approaches helps us determine what standards of behavior can be considered
ethical. There are still problems to be solved, however. The first problem is that we may not
agree on the content of some of these specific approaches. We may not all agree to the same
set of human and civil rights. We may not agree on what constitutes the common good. We
may not even agree on what is a good and what is a harm. The second problem is that the
different approaches may not all answer the question "What is ethical?" in the same way.
Nonetheless, each approach gives us important information with which to determine what is
ethical in a particular circumstance. And much more often than not, the different approaches
do lead to similar answers.
Making Decisions
Making good ethical decisions requires a trained sensitivity to ethical issues and a practiced
method for exploring the ethical aspects of a decision and weighing the considerations that
should impact our choice of a course of action. Having a method for ethical decision making
is absolutely essential. When practiced regularly, the method becomes so familiar that we
work through it automatically without consulting the specific steps. The more novel and
difficult the ethical choice we face, the more we need to rely on discussion and dialogue with
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others about the dilemma. Only by careful exploration of the problem, aided by the insights
and different perspectives of others, can we make good ethical choices in such situations.
We have found the following framework for ethical decision making a useful method for
exploring ethical dilemmas and identifying ethical courses of action.
A Framework for Ethical Decision Making
Recognize an Ethical Issue
Could this decision or situation be damaging to someone or to some group? Does this
decision involve a choice between a good and bad alternative, or perhaps between two
"goods" or between two "bads"?
Is this issue about more than what is legal or what is most efficient? If so, how?
Evaluate Alternative Actions
Evaluate the options by asking the following questions:
Which option will produce the most good and do the least harm? (The Utilitarian
Approach)
Which option best respects the rights of all who have a stake? (The Rights Approach)
Which option treats people equally or proportionately? (The Justice Approach)
Which option best serves the community as a whole, not just some members? (The
Common Good Approach)
Which option leads me to act as the sort of person I want to be? (The Virtue Approach)
Make a Decision and Test It
Considering all these approaches, which option best addresses the situation?
If I told someone I respect-or told a television audience-which option I have chosen, what
would they say?
Act and Reflect on the Outcome
How can my decision be implemented with the greatest care and attention to the concerns
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of all stakeholders?
How did my decision turn out and what have I learned from this specific situation?
WHEN LAW AND EHICS COLLIDE
A Case:- On February 14, 2006, a U.S. District Court issued an unprecedented ruling
concerning the California execution by lethal injection of murderer Michael Morales. The
ruling ordered that the state have a physician, specifically an anesthesiologist, personally
supervise the execution, or else drastically change the standard protocol for lethal injections.
Under the protocol, the anesthetic sodium thiopental is given at massive doses that are
expected to stop breathing and extinguish consciousness within one minute after
administration; then the paralytic agent pancuronium is given, followed by a fatal dose of
potassium chloride. The judge found, however, that evidence from execution logs showed
that six of the last eight prisoners executed in California had not stopped breathing before
technicians gave the paralytic agent, raising a serious possibility that prisoners experienced
suffocation from the paralytic, a feeling much like being buried alive, and felt intense pain
from the potassium bolus. This experience would be unacceptable under the Constitution's
Eighth Amendment protections against cruel and unusual punishment. So the judge ordered
the state to have an anaesthesiologist present in the death chamber to determine when the
prisoner was unconscious enough for the second and third injections to be given — or to
perform the execution with sodium thiopental alone. The California Medical Association, the
American Medical Association (AMA), and the American Society of Anesthesiologists
(ASA) immediately and loudly opposed such physician participation as a clear violation of
medical ethics codes. "Physicians are healers, not executioners," the ASA's president told
reporters. Nonetheless, in just two days, prison officials announced that they had found two
willing anesthesiologists. The court agreed to maintain their anonymity and to allow them to
shield their identities from witnesses. Both withdrew the day before the execution, however,
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after the Court of Appeals for the Ninth Circuit added a further stipulation requiring them
personally to administer additional medication if the prisoner remained conscious or was in
pain. This they would not accept. The execution was then postponed until at least May, but
the court has continued to require that medical professionals assist with the administration of
any lethal injection given to Morales.
GOVERNMENT POLICIES AND ETHICS
IMPLICATIONS OF LAWS FOR THE SOCIAL WORK
The protection, preservation and promotion of one‘s culture is widely recognized as a basic
Human Right and professional social work ethics also recognise the importance of cultural
autonomy in social work practice. Government policy, however, can greatly influence the
degree to which social workers are able to respect their ethics and human rights. In Canada,
there is a celebrated national policy addressing cultural diversity, but our experience
highlights the difficulty of actually implementing such a policy and the difficulty in reaching
social consensus on what is an equitable approach. Social workers, despite the degree to
which they are impacted by government policy, need to do more research and reflection on
the topic, developing the means by which they might advocate for equitable government
policy for cultural diversity.
BAN ON TABBACO ADS BY THE GOVT OF INDIA
In a case which started in 1991 and ended in 1997, RJ Reynolds Tobacco company, marketer
of Camel cigarettes, was forced to withdraw its mascot, Joe Carmel, an animated camel, from
all its advertisements, after the California Supreme Court (USA) ruled that the company
could be prosecuted for exploiting minors.
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the accusation was that the slick, colorful advertisements (using an animated camel) appealed
to the children and encouraged them to smoke. In India, analysts estimated that cigarettes
contributed only 0.14% of the G.D.P and the health costs roughly translated to 0.21% of the
G.D.P. So the revenue logic of huge contribution in the form of excise to the Exchequer did
not seem to be valid. Also, given the state's significant contribution to health care, smokers,
by damaging their health were in fact enhancing the State's expenditure. Questions were also
raised about the economic impact of such a ban, given the fact that the tobacco industry
provided direct and indirect employment to 26 million people. However, a study on tobacco
consumption and employment, showed that effective policies to reduce smoking were likely
to increase, and not decrease employment. The reason for this was that when people stopped
smoking, the money did not disappear from the economy. It was spent on other goods and
services, which the study showed, were more labor intensive. This, in turn produced more
jobs. The impact of cigarette advertising on consumers was another contentious issue. A
World Bank report had pointed out that policymakers who wanted to control tobacco should
be aware of the fact that bans on advertising and promotion would prove effective, only if
they were comprehensive-covering all media and all uses of brand names and logos. The
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report also published the details of a comprehensive study of over 100 countries, comparing
the consumption trends over time in those countries where relatively complete bans on
advertising and promotion were and where no such bans were. In the countries with nearly
complete bans, the downward trend in consumption was much steeper In 1992, the
Department of Health (DOH), UK reviewed various forms of evidence to assess whether
tobacco advertising affected the aggregate demand for tobacco products. Four countries
(Norway, Finland, Canada and New Zealand) were chosen, as these countries had already
imposed an advertising ban and enforced it effectively. The main conclusion of the DOH was
that the evidence available on these four countries indicated a significant effect. In each case,
the banning of advertising was followed by a fall in smoking. In 1997, in a similar study for
the International Union against Cancer, the available data in the same four countries was
examined. It was found that per capita consumption of cigarettes (15 years +) had dropped
between 14 and 37 % after the implementation of the ban. (Refer Table I). In three out of the
four countries, smoking among young people had decreased, while in one it remained stable.
The conclusion was that advertising bans worked if they were properly implemented as part
of a comprehensive tobacco control policy
The National Population Policy
The National Population Policy (NPP) hopes to address the unmet need for contraception,
and provide health infrastructure, personnel and integrated service delivery for basic
reproductive and child health, bring the total fertility rate to replacement level by 2010, and
achieve a stable population by 2045. Besides more general directives such as making school
education free and compulsory and promoting delayed marriage for girls, the policy
advocates an ―integrated package of essential services‖, which seems to consist of providing
contraceptives, treating some reproductive infections and implementing some communicable
disease programmes. Shortfalls in the government‘s services are to be made up by involving
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the voluntary and private sectors. Many of the NPP‘s recommendations are uncontroversial
on paper, and seem to be aimed at providing people more services. However, the proposed
incentives to poor couples for sterilization, and rewards to local bodies for their performance,
could encourage coercion. Women‘s organizations have also asked how the ‗intersectoral
approach‘ will be implemented, and whether contraceptive technology and research will
focus on safe and women-controlled products.
Most important, perhaps, is the fact that the NPP does not seriously address the conditions
which produce ill health. Without significant change at this level, family planning will remain
a low priority for the poor.
The Living Wage: Building on the Minimum Wage
The ―age of the living wage‖ has arrived with a vengeance. In less than a decade, a well
organized coalition of community groups, labor unions, political parties, think tanks, and
churches has coaxed dozens of local governments across the United States into forcing
designated employers to pay workers well above the current federal minimum wage of $5.15
an hour. Living wage jurisdictions include major cities such as New York, Los Angeles,
Chicago, and Baltimore plus a large number of smaller cities and suburban counties. Local
school boards and institutions of higher learning are participating as well. By the end of 2002
there were 103 living wage measures on the books, enacted mostly by municipal and county
general governments, and another 74 campaigns actively under way. Activists defend living
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wage laws as protecting vulnerable entry-level workers from poverty. They also argue that
such laws improve employee morale and productivity, which in turn improves employers‘
profits. Local governments, to the extent they pay contractors living wages, deliver better
services at lower cost. Residents are more satisfied with the quality of life, and the
pathologies associated with poverty are reduced. Only exploitative employers and their
political supporters lose. Common sense and human decency therefore require national as
well as local action in the face of rightwing scare tactics. The federal minimum wage should
be made a ―living‖ wage. The reality is quite different. At best, living wage laws bring about
modest benefits at a higher cost to businesses and taxpayers. There should be little surprise in
that. As an elevated version of the minimum wage, the living wage magnifies the former‘s
labor market distortions. If applied to all employers in the United States, the living wage
would make it far more difficult for first-time job seekers, especially those coming off
welfare, to find work. The economic case for the living wage is difficult to make. Indeed,
some three-fourths of economists surveyed by the Washington-based Employment Policies
Institute said that living wage laws would result in employers looking for more-skilled
employees, thus crowding out the people with the least skills — the very people whom living
wage laws are intended to benefit.
The Minimum Wage as a Living Wage: A Critique
Displacement of Less-Skilled Workers
Congress established the first federal minimum wage in 1938, as part of the Fair Labor
Standards Act, and has raised it 19 times since. More than 80 studies have demonstrated a
link between an increase in the minimum wage and subsequent job loss, especially among
teenagers and unskilled adults, the workers with the least skills, experience, and education.12
The more employers have to pay such workers, the less likely they are to employ them. Those
workers may turn out to be productive employees, but they present risks to the employer so,
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given the minimum price set by the state, the employer reduces risk by hiring only more-
qualified workers. Hyundai‘s are less reliable automobiles than Hondas or Toyotas. If the
Hyundai‘s could not compete on the basis of a lower price, none would be bought. A review
of the empirical research over the past quarter century supports that thesis. In 1977 Congress
created a Minimum Wage Study Commission. Economists on the commission surveyed a
broad range of studies and estimated that a 10 percent increase in the minimum wage
decreased teen employment by about 1 to 3 percent.13 One skeptical researcher not on the
commission replicated the earlier study‘s methodology and found a teen job loss of 0.6
percent.
Counterproductive Anti-Poverty Policy
Advocates of the living wage argue that it combats poverty, but the evidence does not support
that claim. First, the problem for low-income Americans is really insufficient hours rather
than insufficient wages. A Bureau of Labor Statistics report revealed that in 2000 only 3.5
percent of all household heads who worked full-time 27 weeks or more over the course of the
year fell below the poverty line. By contrast, this figure was 10.2 percent for household heads
who worked less than 27 weeks.23 The BLS study also revealed that only a few more than 20
percent of all household heads with below-poverty-line incomes attributed their condition
solely to low earnings. The remaining 80 percent cited unemployment, involuntary part-time
employment, or one or both of those factors in combination with low earnings.
Social Legislation pertaining to women
1. Protection of Women from Domestic Violence Act, 2005
2. The Dowry Prohibition Act, 1961
3. Sexual Harassment and Rape Laws
4. Right to Abortion
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Subordination of women has led to violence under this head to rise. Incidence of domestic
violence crosses all the barriers of class, income, rare, culture and religion and in a highly
under reported crime. Domestic violence is one of the greatest obstacles to gender equality
and securing for women their fundamental rights to equal protection under the law and the
right to life and liberty.
Provision under IPC which aims at protecting the Women:
1. Under Sec. 125, the wife can file a suit against her husband if the husband fails to maintain
her.
2. Sec.375 and 376 specify the punishment for rape.
3. Under Sec.359-396, Kidnapping of women is punishable Sec.363 to 373 clarify as to what
constitute kidnapping and abduction.
4. Sec.302/304 (b) Define the meaning and punishment relating to homicide for dowry,
dowry death or their attempts. U/s 304 (b) death of a woman within seven years of her
marriage shall be deemed to have been caused by any demand for dowry.
5. Sec.306 says that any person who commits suicide, whosoever abert the commission of
such suicide is punishable with imprisonment up to 10 years and also fine. The offence is
cognizable, non-bail able, non compoundable.
6. Under Sec.312 to 314, a person causing miscarriage be punished with imprisonment which
may extend up to 3 years, or with fine or both.
7. Bigamy is an offence u/s 494. It is punishable with imprisonment for a term extending up
to 7 years or with fine.
8. U/S 407, a person who commits adultery shall be punished with imprisonment for a term
which may extend up to 5 years or with fine or both.
9. U/S 498 (a) FIR can be lodged at any Police Station or a Women Cell for torture, both
mental and physical by the husband or a in-laws. The offence is cognizable, non-bail able,
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non compoundable. The punishment is imprisonment; which may extend up to 7 years with
fine.
10. Importation of girl up to 21 years of age from a foreign country shall be punishable U/s
366 of IPC. The punishment can extend up to a term of 10 years and also fine.
11. Section 354 deals with outraging modesty of women. Any act of molestation with intent
to outrage the modesty of a woman is punishable.
12. Section 509 is related to the suit of modesty of a woman (Sexual Harassment). Such an
act shall be punishable with imprisonment which may extend up to 10 years and also fine.
ABORTION
Abortion means the expulsion of a living fetus the mother‘s womb before it is viable. ―In
medical parlance,‖ according to Dr. Andre E. Hellegers, ―abortion is the termination of
pregnancy spontaneously or by induction prior to viability. Thereafter, termination of
pregnancy is called delivery.‖
EFFECTS OF ABORTION TO THE WOMAN
PHYSICAL:
· Woman may suffer habitual miscarriage
· Ectopic pregnancies
· Menstrual disturbances or discomfort
· Still births
· Bleeding
· Shock
· Insomnia
PSYCHOLOGICAL:
· May manifest guilt
· Suicidal tendency
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· Loss of sense of fulfillment
· Loss of confidence
· Loss of appetite
· Coma
· Perforated anus
· Fever and cold sweat
· Intense pain
· Weight loss
· Frigidity
· Hostility
· Thwarted maternal instinct
· Self-destructive behavior
· Anger, rage
· Helplessness
· Loss of interest in sex
· Inability to forgive herself
· Intense interest in babies
MORAL CONSIDERATIONS
The direct and voluntary killing of an innocent human being is always gravely immoral even
when it is performed as a means to a good end. The magisterium of the church has
consistently condemned abortion throughout history, even when the exact moment of fetus
animation is still being disputed. The sanctity of human life demands that it must be respected
and protected absolutely from the moment of conception. From the first moment of his
existence, a human being already possesses the rights of a person, among which is the
inviolable right of every innocent human being. This alienable right must be recognized and
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respected by civil society and political authority. Abortion destroys life and violates the right
to life. As such it is morally evil and it should not be in any way legalized and liberally
permitted in the laws and constitution of a nation. Abortion and infanticide are unspeakable
crimes. We should reject abortion, unless for therapeutic reasons, for it is simply the murder
of an innocent being.
LEGAL CONSIDERATIONS
PHILIPPINES:
Article II, Section 12 of the 1986 Constitution provides that ―The State recognizes the
sanctity of life and shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of the unborn from
conception.‖ Despite this position, however, the illegal practice of abortion continues and
formal complaints against violators have yet to be filed in the Philippine courts. Based on the
study conducted by the National Economic Development Authority (NEDA), the number of
cases of induced abortion in the Philippines ranges from 150,000 to 750,000 every year. In
one Metro Manila hospital alone, 4,000 cases of abortion are undertaken annually. What
usually happens is that illegal abortionists perform abortions outside, and when the woman
suffers from profuse vaginal bleeding, she goes to a hospital for confinement.
UNITED STATES:
Roe v. Wade gave strength to a woman‘s right to privacy in the context of matters relating to
her own body, including how a pregnancy would end. However, the Supreme Court also has
recognized the interest of the states in protecting potential life and has attempted to spell out
the extent to which the states may regulate and even prohibit abortions. First trimester. In the
first trimester the pregnancy starts with a fertilized egg that divides to become tissue and
cleavage, which becomes an embryo. In these first three months the embryo goes through
organogenesis and develops body organs, its heart beats after the fourth week, brain waves
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can be monitored after six weeks, and by the eighth week all major body parts are present. At
the end of the trimester the embryo has matured into a fetus. The decision to undergo an
abortion procedure is between the woman and her physician. Second trimester. During the
second trimester the fetus grows from the approximately 5cm it was at the end of the first
trimester to about 30cm long. It also begins to move as it is continuing to mature. During
approximately the fourth to sixth months of pregnancy, the state may regulate the medical
conditions under which the procedure is performed. The constitutional test of any legislation
would be its relevance to the objective of protecting maternal health. Third trimester. By the
third trimester it becomes fully-grown, completely fills the capacity of the womb, and fully
matured at about 50cm long. Since the heart has been beating since the beginning of the first
trimester, a fetus in the stages of the second and third trimesters are almost always considered
alive and, therefore, state property to some extent unless there are extenuating circumstances.
During the final stage of pregnancy, a state may prohibit all abortions except those deemed
necessary to protect maternal life or health.
UNITED KINGDOM:
There are two key statutes relevant to abortion: the Offences Against the Person Act and the
Abortion Act. The Offences Against the Person Act 1861 The Offences Against the Person
Act 1861 remains the definitive law in England. It gives statutory grounds to the effect that
abortion is a crime except where subsequent legislation provides protection against criminal
prosecution. The Abortion Act (1967), amended 1990 The Abortion Act was designed to
tackle two main issues. The first was increasing concern at the number of ‗back street
abortions‘, despite their being illegal. These were often medically quite unsafe, and an
increasing number of women were being admitted to hospital with complications from such
abortions. The second was the lack of clarity over the question of when a doctor could carry
out an abortion for the sake of the mother‘s health. · Prior to 24 weeks a doctor may carry out
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an abortion, with the woman‘s consent, on very wide grounds. After 24 weeks abortion is
only lawful either to prevent risk of considerable harm to the mother, or for the sake of the
fetus. Except in an emergency two doctors are required to be of the opinion that abortion is
justified n one of the grounds stated in the Act. It is generally assumed that when the Act
states that ‗pregnancy has not exceeded its 24th week‘ it means 24 weeks since the first day
of the woman‘s last period.
ETHICAL CONSIDERATIONS
There are specific laws that pertain to abortion. Certain laws even permit abortion within a
maximum time limit. They state that abortion is possible only up to a certain stage during
pregnancy and should essentially be at the woman‘s request. Abortion is allowed only for
medical reasons in very exceptional circumstances, e.g., to save the mother‘s life. Today,
with the legislation and positive authorization of abortion in some cases, things have
changed. A review of the legal proceedings of those countries which have legalized abortion
show some differences in modalities, which can be observed upon reading the World Health
Organization chronicle of 1976. This chronicle summarizes the conditions or situations in
which the legislation of different countries authorizes the practice of abortion. Such situations
are
· When the mother is authorized to safeguard her physical and mental health;
· When pregnancy is the consequence of rape or incest, or when it occurs in minors;
· When the mother contracts sub-cola during a critical stage of gestation or has been exposed
to other risks which can lead to defective fetal development;
· When Down‘s syndrome or other chromosomal abnormalities are diagnosed through
amniocentesis; and
· When the parents are mentally deficient and considered incapable of adequately rearing a
child.
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MATERNAL – FETAL RELATIONS
Legal considerations
Over the last decade a number of cases have been heard in the courts concerning the legality
of enforcing a caesarian section n an unwilling woman. Most cases have been heard in great
haste, and without legal representation for the pregnant woman. The Royal College of
Obstetricians and Gynecologists produced guidelines that stated:
· Obstetricians must respect the woman‘s legal liberty to ignore or reject professional
advice….
· We conclude that it is ina ppropriate…., to invoke judicial intervention to overrule an
informed and competent woman‘s refusal to treatment, even though that refusal might place
her life and that of her fetus at risk. The courts have interpreted common law as giving a
competent woman the right to refuse treatment even where the life of the fetus is at grave
risk. However, they fall over backwards to find the woman incompetent in order, perhaps, to
justify saving the fetus, and perhaps on the view that the woman will be glad afterwards that
that was the decision taken.
Ethical considerations
In thinking about the ethical issues raised by decisions or interventions in reproductive
medicine it is important to distinguish between an identity-preserving and an identity-altering
intervention or decision. An example of an identity-preserving intervention is when a
pregnant women drinks large amount of alcohol. If the child is subsequently born with some
brain damage as a result, it has been harmed by the mother‘s alcohol intake. An example of
an identity-altering decision is when a woman decides to delay reproduction from, for
example, 30 years to age 40 years. A different child will be born as a result of her decision.
Suppose that she has a child (child a) at age 40 that is born with Down‘s syndrome. The
likelihood is that, had she conceived a child at age 30, it would not have suffered from
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Down‘s syndrome. Has Child A been harmed as a result of her decision to delay
reproduction? The decision has altered the identity of the child who is born. Had she
conceived at the age 30 she would have given birth to a different child. Because child A
would not have come to existence at all, had she not decided to delay reproduction, it is not
clear that child A has been harmed by having Down‘s syndrome a s a result of her decision.
On one view of harm, the decision could only have harmed child A if it would have been
better for A not to have existed at all than to exist with Down‘s Syndrome.
Children in situations of crime and exploitation
Recognizing the flaws of the 1986 Juvenile Justice Act, the government passed the Juvenile
Justice (Care and Protection) Act, 2000. But the knee jerk reaction in amending the law
without a wider discussion and consultation with child rights practitioners has left many who
are concerned with children and work with them deeply distressed. In 2003 the government
drafted amendments to the law. But, because of criticisms and concerns raised by several
organizations and groups, it has been placed before a Parliamentary Standing Committee. The
Committee is currently reviewing the law. The Child Labor (Prohibition and Regulation Act)
was enacted in 1986, to specifically address the situation of children in labor. However, this
law distinguishes between hazardous and nonhazardous forms of labor, and identifies certain
processes and occupations from which children are prohibited from working. It leaves out a
large range of activities that children are engaged in and are exploited and abused. The large-
scale exploitation and abuse of children employed in domestic work and hotels are cases in
point. Child trafficking is one of the most heinous manifestations of violence against
children. This is taking on alarming proportions - nationally and internationally. Although,
very little reliable data or documentation is available, meetings and consultations across the
country have revealed the gravity and the extent of this crime. It is high time we understood
and realised that children are trafficked for a number of reasons and this cannot be treated
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synonymously with prostitution. The absence of this comprehensive understanding and a
comprehensive law that addresses all forms of trafficking to back it makes this issue even
more critical.
Adoption: The need for greater checks and balances
Adoption is one of the best and appropriate forms of alternative family care. Indeed, it is the
only way to break the mindset of institutional care for children, which has been posed as the
only solution for many years. However, adoption of children continues to be determined by
religion of the adoptive parents or the child when religion is known. Only Hindus, Janis,
Buddhists and Sikhs can adopt children. The personal laws of other religions - Muslims,
Parses, and Jews do not allow it. Even as it exists for Hindus, the law has serious flaws
discriminating against married women. It allows only married men to adopt. Further, it only
allows for adoption of children of opposite genders.
Legal Literacy
A citizen should be aware of his rights. He may know that he has a right to a ration card. But
he doesn't know how to get it in a reasonable time if he loses it. Similarly, the question of
personal liberty. He doesn't know what to do if a constable comes calling. There are so many
procedural things courts have laid down. It is in these matters — regarding life and liberties
— that legal literacy is not realized. Legislation like the Right to Information Act will be
blocked by bureaucrats if people don't know its provisions and procedures. If there is an
enlightened citizenry such things will not happen.
Marriages-Divorces
India being a cosmopolitan country tolerates personal laws of its citizen. As a result each
citizen of India is entitled to have his own personal laws inter alia in the matter of marriage
and divorce. Hindus are governed by Hindu Marriage Act, 1955 which provides for the
conditions of a Hindu Marriage where under the bridegroom should be of 21 years and bride
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of 18 years, they both should be Hindus and should not be within the degree of prohibited
relationship or sapindas, neither party should have a spouse living nor any party should be
subject to recurrent attacks of insanity or epilepsy, either of them should not be suffering
from mental disorders or should not be unfit for marriage and procreation of children and
both should be of sound mind and capable of giving valuable consent. Divorce under the
Hindu Marriage Act 1955 can be obtained on the grounds of Adultery, Cruelty, Desertion for
two years, Conversion in religion, Unsound mind, Suffering from venereal disease and/or
Leprosy has renounced the world not heard for 7 years no resumption of co-habitation for one
year after the decree of judicial separation, no restitution of conjugal rights for one year after
decree for restitution of conjugal rights, Husband guilty of rape, sodomy or bestiality and if
after an order of maintenance is passed under the Hindu Maintenance and Adoptions Act or
the Criminal Procedure Code there has been no cohabitation for one year.
Drugs and the Law
A policy that sets drugs in context and seeks above all to reduce drug-related harm needs a
new legal framework to reflect these objectives. In our view, the Misuse of Drugs Act 1971
and the Classification system it embodies achieves neither of these aims. The Act, and all the
later legislation following on from it, should be repealed and superseded by a new Misuse of
Substances Act that:
• sets drugs in the wider context of substance misuse alongside alcohol and tobacco;
• is linked directly to a scientifically based index that makes clear the relative risks of
harm from individual substances;
• seeks to punish harmful behaviors stemming from drug use rather than the simple
possession of drugs. Regulating alcohol, tobacco and illegal drugs all within the same
framework would have an integrity and credibility that the present system lacks. Centering
the framework on a harms index that can be changed in order to reflect the latest
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developments and the most recent research would give it both authority and flexibility. A
framework of this kind would be a neutral instrument. It could be used either to relax or to
tighten the regulation of individual substances. Some drugs that are currently illegal could be
brought under the same kind of regulation that is now used to control comparably harmful but
legal substances; for example, milder forms of cannabis might be regulated in much the same
way as tobacco. Conversely, some drugs whose current regulation is elastic and discretionary
might be more strictly controlled alongside substances that inflict similar amounts of harm;
for example, the stronger forms of ‗skunk‘ cannabis might be regulated alongside
amphetamines instead of Valium. Not all members of the Commission, like many in the arena
of drugs policy, are agreed on whether or not any particular drug should be legalized, or even
on whether the possession and use of anydrug should be treated as a civil rather than a
criminal offence. But they have refrained from trying to settle these narrower issues in order
to advocate the broader principle of a new legal framework to replace one that is manifestly
failing in its aims. The UN Single Convention on Narcotic Drugs 1961 requires its 180
signatories to declare illegal the cultivation, manufacture, export, import, distribution, sale
and possession of the major plant-based drugs – heroin, opium, cocaine and cannabis – other
than for scientific and medical purposes. There are wide variations in the way in which the
Convention is interpreted by its signatories, but it remains the framework within which drugs
policy makers are on the whole constrained to operate. The 1971 UN Convention on
Psychotropic Substances adds LSD, ecstasy and other psychoactive pharmaceutical drugs to
the list of substances to be controlled. The 1988 Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances strengthens existing provisions against money
laundering, directs signatories to cooperate in tracing and seizing drug-related assets and
inserts the requirement that they should impose criminal penalties for all drug offences,
including possession of drugs for personal use.
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The Misuse of Drugs Act 1971
Britain fulfils its obligations under these UN Conventions mainly through the Misuse of
Drugs Act 1971 (MDA), which makes it unlawful to produce, import, export, supply or
possess anything designated as a controlled drug unless an exception or exemption applies.
Controlled drugs are listed in Schedule 2 to the Act. Beside the best known illicit drugs, the
list includes a large number of drugs that are used mainly for medical purposes but that may
also be used recreationally: Ritalin, for example, which is prescribed in order to dampen
down hyperactivity but abused for precisely the opposite reason. The idea of controlling these
commonly prescribed drugs is to protect their licit use (in the interests both of public health
and of the pharmaceutical industry) while at the same time restricting their illicit use. To
enable doctors, dentists, pharmacists, researchers and others to prescribe and handle these
drugs for medical purposes, the Home Secretary makes exemptions to the Act under the
Misuse of Drugs Regulations 2001.
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BIBLIOGRAPHY
BOOKS1. Ethics for life - Judith A. Boss
2. Government ethics and law enforcement- El-Ayouty
3. Natural law and the possibility of a global ethics- By Mark J. Cherry
Articles in newspapers1. The Tribune
2. Hindustan Times
3. The Hindu
Magazines1. India today
2. Business today
Websites1. www.Wikepedia.org
2. www.questia.com
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