FAMI LY LA W R E FOR MS
Why in News?
Law Commission of India has released a Consultation Paper on ‘Reform of Family Law’
Background
• The ministry of law and justice made a reference to the Law Commission of India on June 2016 to examine matters in relation to the Uniform civil code.
• The aim was not to identify an identical procedure for all but to correct the gender discriminatory nature of family laws across religions.
• In the absence of a consensus on a uniform civil code, the best way forward for India may be to preserve the diversity of personal laws while ensuring that they do not contradict the fundamental rights.
• It pointed out that the prevailing personal laws place women at a disadvantaged position.
• The report deals with four key issues: marriage and divorce, custody and guardianship, adoption and maintenance, and succession and inheritance.
Recommendations
• Age of consent for marriage: It advocates for change in the age of consent for marriage, opining that the current difference of 18 years for girls and 21 years of age for
What is Uniform Civil Code?
• A Uniform Civil Code essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion.
• Currently, different laws regulate these aspects for adherents of different religions.
boys simply contributes to the stereotype that wives must be younger than their husbands.
• Marriage and Divorce
o Grounds for divorce (No-fault Divorce): It refers to a situation where the emotional and other bonds, which are the essence of marriage, have disappeared and only a façade remains.
o The commission suggested that where a marriage has ceased to exist both in substance and in reality,
divorce should be seen as a solution rather than a taboo.
o Community of Property upon Divorce and Maintenance: It recommends that a no-fault divorce must accompany community of self-acquired property, owing to the fact that women are usually left in a
vulnerable position while allowing for immediate and unilateral divorce.
o Rights of Differently-Abled Persons in Marriage: The paper recommends amendments to exclude from grounds for divorce, forms of illnesses that can be cured or controlled with adequate medical treatment
or counselling.
o Special Marriage Act: It calls for modification of the 30 day notice period for registration of marriage, in view of the misuse of the provision to discourage an inter-caste or an inter-religion marriage.
• Custody and Guardianship: Guardians and Wards Act, 1890 to be amended to the extent that a husband is not regarded as the guardian of the wife, and both the parents equally share responsibility of the child born from such wedlock
• Adoption and Maintenance: Juvenile Justice (Care and Protection of Children) Act, 2015 is inadequate in addressing the jurisprudential questions on adoption. It then strongly suggests the use of the term ‘parents’ in place of ‘mother and father’ in adoption, to enable individuals of all gender identities to avail of the Act.
o It also recommends that the word ‘child’ should replace son and daughter so as to ensure that intersex
children are not excluded from being adopted.
o The current law does not permit a male adult to adopt a female child. It is suggested that there should be a provision of adoption to a single parent irrespective of gender and gender identity of the child as well as
the parent.
• Succession and Inheritance.
o It advocates for abolition of coparcenary and suggests that the right in a property by birth be extinguished
by opting for ‘tenancy-in-common’ instead of ‘joint tenancy’.
o Hindu Undivided Family (HUF) has also been suggested to be abolished, noting that the institution of
HUF was being used for tax avoidance.
1.4. WR ONG FU L PR OSE CUTI ON
Why in News?
Recently, Law Commission of India (LCI) submitted its 277th report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” to the Government.
Background
• India has one of the highest under trial populations in the world: According to National Crime Records Bureau’s (NCRB) annual Prison Statistics India (PSI) report 2015, there were more than 4.19 lakh prisoners across India out of which 67.2% were under trials (i.e. people who have been committed to judicial custody pending investigations or trial). During 2015, more than 82,500 prisoners were released by acquittal and more than 23,400 prisoners were released in appeal.
• Undertrials spend a substantial period of time awaiting trials/judicial determinism of their case which becomes a graver miscarriage of justice when the person is wrongfully accused and incarcerated pending trial and proceedings which he should not have been subjected to in the first place.
• Such situations often result in violations of fundamental rights of the victim under Article
21 and 22 of the constitution, gross human rights violations, social stigma faced, precious years lost, mental, emotional and physical harassment, huge expenses incurred during the process and overcrowding of prisons.
• Infringement of a fundamental right due to police and prosecutorial misconduct involves State liability. However, there is a lack of effective response from the State to the victims of such wrongful prosecutions within the current Criminal Justice System in the country. Remedies available under the present system remain complex and uncertain, creating only an ex-gratia obligation without any statutory or legal
backing for the rights of victim.
Current provisions provide for following remedies:
Currently three categories of court based remedies with respect to miscarriage of justice are available to a victim:
• Public law remedy: it is treated as a violation of fundamental rights under Article 21 (the right to life and liberty) and Article 22 (protection against arbitrary arrests and illegal detention, etc.) of the Constitution, that invokes the writ jurisdiction of Supreme Court and High Courts under Article 32 and 226 respectively.
• Private law remedy: it exists in the form of civil suits against the state for monetary damages on account of tortious acts of public servants- especially negligence by a public servant in the course of employment. Both public and private law remedies are victim centric in nature.
• Criminal law remedy: it holds the wrong doer accountable i.e. proceedings with criminal action against the concerned officers of the State for their misconduct.
International Covenant on Civil and Political Rights, 1966
• Article 14(6) of International Covenant on Civil and Political Rights, 1966 (ICCPR) dealing with miscarriage of justice creates an obligation on the State parties to enact a legislation ensuring that these victims are compensated within a reasonable period of time. India ratified the ICCPR in 1968 but is yet to enact the legislation for the same.
• Delhi High Court in Babloo Chauhan Case had requested LCI to examine the possibility of the legislation for providing relief and rehabilitation to victims of wrongful prosecution and incarceration in India. LCI has therefore setout standards to be applied in the above cases of miscarriage of justice and has also presented a Draft Code of Criminal Procedure (Amendment) Bill, 2018 to suitably incorporate the recommendations.
Recommendations of LCI
• It is one of the key documents dealing with the
miscarriage of Justice.
• It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
• As of August 2017, the Covenant has 172 parties and six more signatories without ratification.
• It is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights(UDHR).
• Other important parts of the covenant are-
o Right to Physical integrity
o Liberty & Security of Persons
o Procedural fairness & Right of accused
o Individual Liberties
o Political Rights
• ‘Wrongful prosecution’ to be the standards of miscarriage of justice, as against ‘wrongful conviction’ and
‘wrongful incarceration’: ‘Wrongful prosecution’ would include cases where the accused and not guilty of the
offence, and the police and/or the prosecution engaged in some form of misconduct in investigating and/or
prosecuting the person. It would include both the cases where the person spent time in prison as well as where
he did not; and cases where the accused was found not guilty by the trial court or where the accused was convicted by one or more courts but was ultimately found to be not guilty by the Higher Court.
• Need for a transparent legislative process: There needs to be an established legislative process, according a transparent, uniform, affordable, efficacious and timely remedy for the loss and harm inflicted on the victims on account of wrongful prosecution.
• Designation of Special Courts in each district for adjudicating upon claims of compensation for wrongful prosecution. The cause for action would arise if there was malicious prosecution or prosecution without good faith and there was an acquittal.
• Compensation, both pecuniary and non-pecuniary, to effectuate the rehabilitation of the victims into the society: While pecuniary assistance will be in terms of monetary award as may be determined by special court, non-pecuniary assistance will be awarded in the form of services such as counseling, mental health services, vocational/employment skills development, removal of disqualifications that might affect chances of accused persons finding employment in public and private sectors, admission into educational institutes, etc.
• Factors to determine compensation: Compensation in such cases would depend upon various factors, including the seriousness of the offence, severity of punishment, the length of incarceration, loss or damage to health, psychological and emotional harm and the status of the victim in the society.
Why in News?
Law Commission of India has released a Consultation Paper on ‘Reform of Family Law’
Background
• The ministry of law and justice made a reference to the Law Commission of India on June 2016 to examine matters in relation to the Uniform civil code.
• The aim was not to identify an identical procedure for all but to correct the gender discriminatory nature of family laws across religions.
• In the absence of a consensus on a uniform civil code, the best way forward for India may be to preserve the diversity of personal laws while ensuring that they do not contradict the fundamental rights.
• It pointed out that the prevailing personal laws place women at a disadvantaged position.
• The report deals with four key issues: marriage and divorce, custody and guardianship, adoption and maintenance, and succession and inheritance.
Recommendations
• Age of consent for marriage: It advocates for change in the age of consent for marriage, opining that the current difference of 18 years for girls and 21 years of age for
What is Uniform Civil Code?
• A Uniform Civil Code essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion.
• Currently, different laws regulate these aspects for adherents of different religions.
boys simply contributes to the stereotype that wives must be younger than their husbands.
• Marriage and Divorce
o Grounds for divorce (No-fault Divorce): It refers to a situation where the emotional and other bonds, which are the essence of marriage, have disappeared and only a façade remains.
o The commission suggested that where a marriage has ceased to exist both in substance and in reality,
divorce should be seen as a solution rather than a taboo.
o Community of Property upon Divorce and Maintenance: It recommends that a no-fault divorce must accompany community of self-acquired property, owing to the fact that women are usually left in a
vulnerable position while allowing for immediate and unilateral divorce.
o Rights of Differently-Abled Persons in Marriage: The paper recommends amendments to exclude from grounds for divorce, forms of illnesses that can be cured or controlled with adequate medical treatment
or counselling.
o Special Marriage Act: It calls for modification of the 30 day notice period for registration of marriage, in view of the misuse of the provision to discourage an inter-caste or an inter-religion marriage.
• Custody and Guardianship: Guardians and Wards Act, 1890 to be amended to the extent that a husband is not regarded as the guardian of the wife, and both the parents equally share responsibility of the child born from such wedlock
• Adoption and Maintenance: Juvenile Justice (Care and Protection of Children) Act, 2015 is inadequate in addressing the jurisprudential questions on adoption. It then strongly suggests the use of the term ‘parents’ in place of ‘mother and father’ in adoption, to enable individuals of all gender identities to avail of the Act.
o It also recommends that the word ‘child’ should replace son and daughter so as to ensure that intersex
children are not excluded from being adopted.
o The current law does not permit a male adult to adopt a female child. It is suggested that there should be a provision of adoption to a single parent irrespective of gender and gender identity of the child as well as
the parent.
• Succession and Inheritance.
o It advocates for abolition of coparcenary and suggests that the right in a property by birth be extinguished
by opting for ‘tenancy-in-common’ instead of ‘joint tenancy’.
o Hindu Undivided Family (HUF) has also been suggested to be abolished, noting that the institution of
HUF was being used for tax avoidance.
1.4. WR ONG FU L PR OSE CUTI ON
Why in News?
Recently, Law Commission of India (LCI) submitted its 277th report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” to the Government.
Background
• India has one of the highest under trial populations in the world: According to National Crime Records Bureau’s (NCRB) annual Prison Statistics India (PSI) report 2015, there were more than 4.19 lakh prisoners across India out of which 67.2% were under trials (i.e. people who have been committed to judicial custody pending investigations or trial). During 2015, more than 82,500 prisoners were released by acquittal and more than 23,400 prisoners were released in appeal.
• Undertrials spend a substantial period of time awaiting trials/judicial determinism of their case which becomes a graver miscarriage of justice when the person is wrongfully accused and incarcerated pending trial and proceedings which he should not have been subjected to in the first place.
• Such situations often result in violations of fundamental rights of the victim under Article
21 and 22 of the constitution, gross human rights violations, social stigma faced, precious years lost, mental, emotional and physical harassment, huge expenses incurred during the process and overcrowding of prisons.
• Infringement of a fundamental right due to police and prosecutorial misconduct involves State liability. However, there is a lack of effective response from the State to the victims of such wrongful prosecutions within the current Criminal Justice System in the country. Remedies available under the present system remain complex and uncertain, creating only an ex-gratia obligation without any statutory or legal
backing for the rights of victim.
Current provisions provide for following remedies:
Currently three categories of court based remedies with respect to miscarriage of justice are available to a victim:
• Public law remedy: it is treated as a violation of fundamental rights under Article 21 (the right to life and liberty) and Article 22 (protection against arbitrary arrests and illegal detention, etc.) of the Constitution, that invokes the writ jurisdiction of Supreme Court and High Courts under Article 32 and 226 respectively.
• Private law remedy: it exists in the form of civil suits against the state for monetary damages on account of tortious acts of public servants- especially negligence by a public servant in the course of employment. Both public and private law remedies are victim centric in nature.
• Criminal law remedy: it holds the wrong doer accountable i.e. proceedings with criminal action against the concerned officers of the State for their misconduct.
International Covenant on Civil and Political Rights, 1966
• Article 14(6) of International Covenant on Civil and Political Rights, 1966 (ICCPR) dealing with miscarriage of justice creates an obligation on the State parties to enact a legislation ensuring that these victims are compensated within a reasonable period of time. India ratified the ICCPR in 1968 but is yet to enact the legislation for the same.
• Delhi High Court in Babloo Chauhan Case had requested LCI to examine the possibility of the legislation for providing relief and rehabilitation to victims of wrongful prosecution and incarceration in India. LCI has therefore setout standards to be applied in the above cases of miscarriage of justice and has also presented a Draft Code of Criminal Procedure (Amendment) Bill, 2018 to suitably incorporate the recommendations.
Recommendations of LCI
• It is one of the key documents dealing with the
miscarriage of Justice.
• It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
• As of August 2017, the Covenant has 172 parties and six more signatories without ratification.
• It is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights(UDHR).
• Other important parts of the covenant are-
o Right to Physical integrity
o Liberty & Security of Persons
o Procedural fairness & Right of accused
o Individual Liberties
o Political Rights
• ‘Wrongful prosecution’ to be the standards of miscarriage of justice, as against ‘wrongful conviction’ and
‘wrongful incarceration’: ‘Wrongful prosecution’ would include cases where the accused and not guilty of the
offence, and the police and/or the prosecution engaged in some form of misconduct in investigating and/or
prosecuting the person. It would include both the cases where the person spent time in prison as well as where
he did not; and cases where the accused was found not guilty by the trial court or where the accused was convicted by one or more courts but was ultimately found to be not guilty by the Higher Court.
• Need for a transparent legislative process: There needs to be an established legislative process, according a transparent, uniform, affordable, efficacious and timely remedy for the loss and harm inflicted on the victims on account of wrongful prosecution.
• Designation of Special Courts in each district for adjudicating upon claims of compensation for wrongful prosecution. The cause for action would arise if there was malicious prosecution or prosecution without good faith and there was an acquittal.
• Compensation, both pecuniary and non-pecuniary, to effectuate the rehabilitation of the victims into the society: While pecuniary assistance will be in terms of monetary award as may be determined by special court, non-pecuniary assistance will be awarded in the form of services such as counseling, mental health services, vocational/employment skills development, removal of disqualifications that might affect chances of accused persons finding employment in public and private sectors, admission into educational institutes, etc.
• Factors to determine compensation: Compensation in such cases would depend upon various factors, including the seriousness of the offence, severity of punishment, the length of incarceration, loss or damage to health, psychological and emotional harm and the status of the victim in the society.
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