Posts Tagged ‘Law’

A brief note on the legal Latin term ‘Amicus Curiae’, meaning ‘Friend of the Court’

Time and again welcomed by the Indian Courts, Amicus Curaie is a party or an organization, who is not a litigant in a particular case, but volunteers to offer information to assist a court in deciding a matter before it. The decision whether to admit the information, however, lies with the discretion of the court.

THE FORM OF INFORMATION

The friend of the court can file the information regarding a point of law or something else relevant to the case that they feel may help the court in the said ways:

  • A legal opinion in the form of a brief called Amicus Brief
  • A testimony that neither party solicited
  • A learned treatise on a matter that bears on the case

Amici Curiae that do not file briefs often present an academic perspective on the case. For example, if the law gives justice to a history of legislation of a certain topic, a historian may choose to evaluate the claim using their expertise. An economist, statistician, or sociologist may choose to do the same.

ORIGIN: ALL THE WAY BACK TO ROMAN LAW

Around the 9th century, British law incorporated Amicus Curiae which then had many other common law systems following suit. Later, it was introduced to the international law, with many cases concerning human rights calling on the term. With the most recent being the civil law systems, Argentina integrated the same.

AMICUS CURIAE IS NOT AN INTERVENER

An intervener is someone who has a direct interest in the outcome of the lawsuit.  While, the role of an Amicus Curiae as stated by Salmon LJ in Allen V Sir Alfred Mc Alpine & Sons Ltd. (1968) is as stated: “I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal argument on his behalf.”
This often happens in an appellate court as well. They often argue based on factual data and information from lower courts. Many prominent cases see Amicus Curiae come from nonprofit groups that have a budget big enough to support a legal counsel.

FRIENDS OF THE INDIAN COURTS

India has been welcoming Amicus Curiae, especially in the cases that have involved major public interest. By doing so, the court is guided not only by the academic perspective required for the particular case, but also gets an understanding which would allow them to do justice in its entirety. The person who is usually allowed by the courts, in India, to act as Amicus Curiae is someone who represents the unbiased will and opinion of the society.
A perfect example is of the rather infamous BMW Case which had been in the news due to the fact that both the defense and the prosecution lawyers had been suspended by the Delhi High Court on charge of driving the witnesses to turn hostile. In the said case, Advocate Arvind Nigam who was appointed as the Amicus Curiae by the Delhi High Court played a crucial part in securing justice.
Apart from civil and public importance matters, if the accused is unrepresented, then, an advocate is appointed as Amicus Curiae by the Indian court to defend and argue the case of the accused.

SUBJECTED TO RULES

Unlike other friendships, this one is subjected to a certain set of rules and regulations. In order to be used in a court proceeding, an Amicus Brief needs to be provided in order to prove the facts that neither of the concerned parties have mentioned before the court. On the other hand, if it is felt that an Amicus Curiae Brief doesn’t bring new and helpful information, it’s considered to be a burden to the court and will not be used.

Read original article at: http://epaper.namoleague.com/EpaperArticle.aspx?title=Har%20Ek%20Friend%20Legal%20Hota%20Hai!_728

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General understanding on the IPC – Indian Penal Code

Every country needs a system to function smoothly. A system is made up of laws. And where there are laws, there is breach of laws. This is when the Indian Penal Code (IPC) comes into picture.

IPC is the backbone of the Indian Criminal Justice System. It is a document that has been formulated to counter crimes of various natures and breach of laws. IPC is a complete code that covers all the aspects of criminal law. It was first drafted in 1860, while it came into force in colonial India during the British Raj in 1862. It has been amended several times since then and is now supplemented by other criminal provisions. IPC covers different crimes separately and lists out the penalties for those found guilty under any of the mentioned offences.

TRACING THE ROOTS

The First Law Commission, chaired by Lord Macaulay, prepared the draft of the Indian Penal Code. The base of the code had derived inspiration from the laws of England, French Penal Code and Livingstone’s Code of Louisiana. The other members of the Legislature then were Chief Justice Sir Barnes Peacock and judges from the Calcutta High Court. After reviews and careful revisions, the law was passed on October 6 1860.

IPC COVERS

IPC covers all states of India and is also applicable to the state of Jammu and Kashmir. However, it is known in this state as the Ranbir Penal Code (RPC). It covers any Indian citizen or a person of Indian origin. The exception here is that any kind of crimes by military or the armed forces have a different dedicated list of laws and the IPC does not have the privilege to replace any part of it. The code also has the power to charge for any crimes committed by a person who is an Indian citizen on any means of transport belonging to India – an Indian aircraft or an Indian ship.

After independence, Indian Penal Code was inherited by Pakistan and Bangladesh, as then they were a part of British India. It was also adopted wholesale by the British colonial authorities in Burma, Sri Lanka, Malaysia, Singapore and Brunei. It remains the basis of the criminal codes in those countries.

THE ULTIMATE LAW ENFORCER

None of the 511 sections of the IPC includes any special favors or relaxations on any particular person at some position of power. It is universally acknowledged as a clear, logical and convincing code. It has substantially survived for over 150 years in several jurisdictions without major amendments.
The Indian Penal Code has over the years evolved into a modern, law enforcing and the most fundamental document that stands as a pillar of the Indian judiciary.

Read original article at: http://epaper.namoleague.com/EpaperArticle.aspx?title=A%20Code%20For%20The%20Breach%20Of%20Code_661

AGAINST FREEDOM, SHARMILA, PEACE, ACCEPTANCE – AFSPA

“They kept on pouring water into my nostrils until the water came out in my ears; it felt warm inside my ears. Then they stamped on both my thighs while two persons held my feet while another man sat on my head… They touched the wires’ ends to my chest and gave me shocks three times. Each time I felt as if my whole body had contracted… I keep remembering how they used to beat me and see everything that happened to me vividly.”
– 14-year-old child tortured by Indian soldiers in the Northeastern state of Manipur
(Witness statement of arrest and torture in Manipur cited in L.A. Pinto and N. Thockchom, Indigenous Children of North East India: the denial of childhood, Centre for Organization Research and Education, Imphal, Manipur, 2000)

This is just one incident that is expressed and recorded, just one among thousands. And this was not new for the region where such torture, encounters, murders and rapes were a regular affair. The people lived constantly under the shadow of the gun, under the shadow of AFSPA (Armed Forces Special Powers Act).

THE SEVEN SISTERS WITH A ‘STEP-SISTERLY’ TREATMENT

The Indian states of the ‘seven sisters’ province are Assam, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland. These states were granted autonomy when the British left in 1947, but were merged with India two years later in a treaty. Many of the 38 million-strong population believe that this merger was forced upon their king. This led to freedom movements, further leading to the Armed Forces (Special Powers) Act – the Indian Government’s attempt to regain control. The main aim of AFSPA was to counter the insurgency of opposition groups and to give immunity to the armed forces working in hostile environments.

THE LAWLESS LAW

The Armed Forces Special Powers Bill was passed by both the Houses of Parliament. A new ordinance was adopted by the Indian Government in May 1958, then endorsed by the Parliament in August 1958, and given presidential assent on September 11, 1958. It came onto the Statute Book as ‘The Armed Forces (Special Powers) Act, 1958.’
The AFSPA is a photocopy of the 1942 British ordinance intended to deal with the Indian independence movement (Quit India movement) during World War II. It was enacted as a short-term measure to allow the deployment of the army in India’s Northeastern Naga Hills. But since then, AFSPA has become a permanent act and exists for five decades.
States of Northeast – Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram and Nagaland come under the act’s purview. Similar laws were also applied to counter militancy in Punjab from 1985 to 1994. Later in July 1990, the Act was extended to the Kashmir valley, when the insurgency was at its peak.

THE ACT

AFSPA gives the armed forces wide powers to shoot, to kill, arrest on insubstantial pretext, conduct warrantless searches and demolish structures in the name of ‘aiding civil power.’ Equipped with these special powers, soldiers have raped, tortured, ‘disappeared’ and killed Indian citizens without fear of being held accountable.
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as ‘disturbed,’ an officer of the armed forces has powers to:

  • Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law against assembly of five or more persons or possession of deadly weapons
  • To arrest without a warrant and with the use of  necessary force anyone who has committed certain offenses or is suspected of having done so
  • To enter and search any premise in order to make such arrests

It gives legal immunity to the Army officers for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under this law.

SOME HAIR-RAISING INCIDENTS

Instead of controlling the situation, AFSPA has over the years, made it more draconian and brutal. Some of the cases that have become known are just the tip of a huge iceberg.

Wee hours of July 11, 2004 and a 32-year-old Thangjam Manorama Devi was arrested without a warrant by the members of the 17th Assam Rifles from her residence. According to the Assam Rifles, she was a hardcore cadre of the proscribed People’s Liberation Army (PLA) and one who had been involved in a series of IED blasts resulting in injury and deaths of many civilians and members of the security forces. (This was never proved as no arms were recovered and no proofs were gathered)
The young woman was allegedly tortured, raped and murdered. The next day her bullet-ridden body was recovered from a field near her home in Imphal, entirely bruised and torn apart with several gunshots, one piercing her private part. A cloth had been inserted at that place to stop the blood from oozing out. 

This shook entire India. On July 12, 2004, 32 local organizations came together in a conglomeration called Apunba Lup, to launch a movement to demand the AFSPA be repealed. But this was not enough. What followed, on July 15, 2004 was an iconic protest by the members of Meira Paibis group, a mass-based Meitei women’s human rights movement, who protested in front of the Kangla Fort, the then headquarters of the Assam Rifles. 12 women stripped with a banner which said, ‘Indian Army Rape us.’ While they cried aloud “We are the mothers and sisters of Manorama, rape us!” The rage and the agony were clearly visible on the women’s faces and the image of Manorama’s corpse filled in their eyes. This surreal ‘Naked Protest’ sunk in the hearts and minds of Indians and the Government and Armed Forces’ acts were stripped naked. The statement was so loud that it echoed and reverberated across the nation and the world as a whole.
A few days after Manorama’s murder, Pastor Jamkholet Khongsai was inhumanly murdered by the Assam Rifles in Manipur. When his body was dug out, innumerable boot marks were found on his chest.
A new, brave chapter in the history of AFSPA was written by a ‘Human Torch’. In a daring protest, Pebam Chittaranjan Mangang, advisor of Manipuri Students Federation attempted self-immolation at Bishnupur on August 15, 2004. He sprinkled himself with inflammable materials. After torching himself, Chittaranjan ran from the CI College complex to the office of the Deputy Commissioner, Bishnupur, about one and half kilometer from the college complex. He said in his final wriiten note “I have embraced death as the right choice for me and after a deep thinking I have decided to kill myself as a burning Human Torch and leave this world ahead of you all. Hundreds will come to follow me.”

  • Back in the 1960s, a girl named Chanu Rose was raped by the Army, who later committed suicide. Ever since then, there have been several incidents of molestation, rape and torture by Army men; even pregnant women were not spared.
  • Thousands of parents have gone insane as their children go ‘missing’, never to be seen again.

We are neither protecting militants nor fighting the security forces. Our only concern is the safety of our nation, our future. The struggle is to protect the people caught in the crossfire between militants and security forces.

The death of the core of all fundamental freedoms and human rights, the slaughter of justice, right to life leads to bereavement and the devil AFSPA reigns!

Read the entire article at: http://epaper.namoleague.com/EpaperArticle.aspx?title=Are%20You%20Against_616