Right To Education under Article 21 of the Indian Constitution

Author-Hemant Jarwal, University Five Year Law College, University Of Rajasthan

INTRODUCTION

"Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family."- Kofi Annan, Former Secretary-General of the United Nations. From the Time a child is born, his or her education begins. At first, education is an informal process in which an infant watches others and learns from them by either copying them or listening to them. As the infant grows into a young child, the process of education becomes more formal by going to preschool. In grade school, academic lessons become the focus of education as a child moves through the school system. But it is not that simple, education is about much more than the simple learning of facts. Education in the bigger picture is the process of encouraging discovery and innovation in different sectors. From the time we are born, humans keep learning and still learning and will continue learning in the future. Sometimes consciously and many times subconsciously. Education is an effective method in different fields of acquiring knowledge, values, skills, habits, and beliefs. So after knowing and considering all the factors that tell us why education is so important and how can it change our life and our society's thinking or enhance their perspective from narrow mind to broad mind and how it can help in the overall growth and development of the nation. That’s why To eradicate education poverty, the government of India proposed the Right to Education Act (RTE) in 2009. It came into effect on 1 April 2010. It aims to provide free and compulsory education to children aged six to fourteen years under Article 21-A. Ensure that every child has his or her right to get a quality elementary education. This right also ensures the provision of fundamental or primary education for those who have not completed their basic education. Right to education includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all and an obligation to develop equitable access to higher education. India has a total of 19% of the children population in the world and almost one-third of the illiterate population in the world. But India can change this fact and figures by becoming the most educated population by using its resources to educate its youth. Education is a powerful tool for the uneducated population to grow and fully participate as citizens. And the Right to Education is also universally recognized by the main international instrument, the Universal Declaration of Human Rights (UDHR) as a basic human right to right to education in Article 26 Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit”.

Keywords : Right to Education, Article 21-A, Article 21  Constitution of India, Article 45, 86th Constitutional Amendment Act, UDHR, Right to Education Act.

Meaning, Definition & Explanation

Education is the way that gives us the ideas, skills, techniques, information, and knowledge to know, understand, and respect the duties we have towards our society, families, and nation. Education helps a person to get knowledge and enhance their confidence in life. It can help us to improve our careers and our personal growth. And as an educated person can become a great citizen in society and in the end educated persons help in the development and growth of society and nation. It helps you to make the right decisions in life. Therefore education is very important in life is because it helps everyone develop a good perspective of looking at the world and our society. Education helps us in getting new ideas and exploring new ideas. An uneducated person can never be fully aware of his/her responsibilities towards each other as human beings and the world as a whole. As human beings, we have to give back to the society that we have used and where we live in so that we can make it a better place to live for everybody. Proper education teaches an individual to think beyond their interests and helps them in developing an ability to make the world a happier, safer place for the next generation. It is difficult to give the answer of the question  What is education in a few lines. Because the Definition of education is given differently by different people at different times. Therefore, education cannot be defined or described by one's precise or perfect definition. The definitions given by different educators about its education are given below:
  1. According to Socrates "Education means the bring out of the ideas of universal validity which are latent in the mind of every man."
  2. According to Plato "Education is the capacity to feel pleasure and pain at the right moment it develops in the body and in the soul of the student all the beauty and all the perfection which he capable of."
  3. According to Aristotle "Education is the creation of a sound mind in a sound body it develops men's faculty especially his mind so that he may be able to enjoy the implementation of supreme court goodness and beauty of which perfect happiness essentially consists."

Historical Background / Evolution of Education:

The importance of education in India has been seen from the ancient times. Human education in India can be traced back to ancient times when the Gurukul system was working. In this Guru-Shishya (teacher-disciple) system, those who wanted to study would go to teachers and request to be accepted as a disciple. If they were accepted then the disciple had to stay at the teacher’s place, and apart from learning, he also had to help in other household chores. This system made a strong tie between the Guru and Shishya, and it also taught the disciple that how to run a household. Teachers of that era taught all the subjects in open classrooms like under shadow of trees, under the sun. Languages like Sanskrit and holy scripture, as well as metaphysics and mathematics, were part of the learning process. Learning was based more on the understanding their surroundings and nature, not just memorizing verses or shlokas. This education system got an impetus and developed with universities like Nalanda, Ujjain, Takshashila, and Vikramshila. Lord Thomas Babington Macaulay brought the modern form of education and the English language to India in the 1830s. The development of education in India was started by classroom confinement, and by teaching modern subjects like science and maths were part of this curriculum. Subjects like metaphysics and philosophy were deemed unnecessary or not important at that time. And you know what The right to education was initially not included as a fundamental right in the constitution but was included as a Directive Principle under Article 45 which states that it is the duty of the state to endeavor to provide, within a period of 10 years from the commencement of the constitution, for free and compulsory education for all children until they complete the age of 14 years. The directive in Article 45 was not limited to merely primary education rather it extends up to providing free education up to the age of 14 years, whatever the stage of education it came to. Therefore, education for children of this age group should have been free. During this period the Supreme Court also held that  the ‘Right to education' get from other Articles of the Constitution such as Articles 21, 24, 30(i), and 39(e) & (f). The Court emphasized that the primary obligation placed on the state by Article 45 is “to provide for free and compulsory education for children” and it can be discharged through government and aided school and that Article 45 does not required that obligation to be discharged at the expense of the minority communities.

Comparison of Right to Education with other Countries:

Status of Right to Education in India:

Like in India the Right to Education is mentioned under the Constitution of India by The 86th  Constitutional Amendment Act, 2002 which is made with objective to protect the citizen’s rights of education, as well as to overcome the challenges in India regarding education. The 86th Amendment act 2002, makes three exact provisions in Constitution to provide understanding of free and compulsory education to children’s of age between 6 to 14 years as a Fundamental Right. These are as follows:-
  1. Adding Article 21A in part III initiated that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.
  2. Bring alteration and modification in Article 45 and substituted as the state shall endeavors to assure early childhood care and free and compulsory education for all children until they complete the age of 6 years.
  3. The insertion of new clause in Article 51 A, clearly mandates the parents or guardians to furnish opportunities for education of their children between the age group of 6 to 14 years.[Article 51A (k)].

Status of Right to Education in the United States of America:

The right to an education is guaranteed and recognized as a fundamental or basic Human right by the  International law in the Universal Declaration of Human Rights. Similarly, UNESCO’s Constitution sets out the right to an education as necessary in order to “prepare the children of the world for the responsibilities of freedom.” However — and this might come as a surprise to many Americans — The U.S. Constitution mentions no such right nor has the U.S. Supreme Court recognized one. But All kids living in the United States have the right to a free public education. And the Constitution requires that all kids be given equal educational opportunity no matter what their race, ethnic background, religion, or sex, or whether they are rich or poor, citizen or non-citizen. Even if you are in this country illegally, you have the right to go to public school. In addition to this constitutional guarantee of an equal education, many federal, state and local laws also protect students against discrimination in education based on sexual orientation or disability, including pregnancy and HIV status. In fact, even though some kids may complain about having to go to school, the right to an equal educational opportunity is one of the most valuable rights you have. The Supreme Court said this in the landmark Brown v. Board of Education case when it struck down race segregation in public schools. Many people assume that the Federal Court had found a federal Right to Education in Brown v. Board of Education, 347 U.S. 483 (1954). However the court in that case did not held that all students had a right to an education. Rather, it held only that where a state makes public education available, it cannot withhold access to education based on race. Further, it espoused — or at least suggested the possibility of — an individual right to an education. The Federal court came closer to recognizing a federal right to education in Plyler v. Doe, 457 U.S. 202 (1982). There, the state of Texas had foreclosed public school education for undocumented students, and plaintiffs had made an Equal Protection claim. The court found that even though education was not a fundamental right, the state did not have a sufficient interest to withhold education from students whose parents had brought them to this country illegally. Since education is not specifically mentioned as a right or a power of the federal government, Congress does not have the authority to directly regulate education. Education is not currently recognized as a fundamental right in the United States. In 1973’s San Antonio Independent School District v. Rodriguez, the Supreme Court found that education is not explicitly protected under the U.S. Constitution, and its precedent has remained unchallenged at the Supreme Court for over 30 years. Advocates for the right to public education have offered divergent strategies to overcoming the ruling, but none has found success in federal court.

Types / Kinds of Education in India:

Education means the development of the learning and thinking process. And It is not limited to the walls of the classroom but it goes beyond the four walls of the classroom. It is all about gaining experience and therefore we can divide education into three main types:
  1. Formal Education.
  2. Informal Education.
  3. Non-formal Education.
  • Formal Education: This is also known as formal learning which usually takes place within the premises of the school. It is the type of education where the basic academic knowledge that a child learns in a formal manner.This continues from an elementary school to secondary school and further on to colleges. Such type of education is provided by specially qualified teachers who are efficient enough with the art of instruction.Here both the student and the teacher are both aware of the facts and involve themselves into a process of education. Some of the examples of formal education are classroom learning, Institute grading/certification, or planned education of different subjects with a proper syllabus acquired by attending an institution.
  • Informal Education: This is the type of education where a parent teach his/her child things that are beyond academics like preparing a meal or riding a bicycle. People can also get informal education through books or educational websites. This is an education that is not taught in schools through a proper learning method. It is not pre-determined nor deliberate. It is an experience that an individual feel by undergoing regular practice and observing others. Some of the examples are like by teaching a child with some basic personality traits, learning a mother tongue, performing certain extracurricular activities, etc.
  • Non-formal Education: It is a type of education where a person learn about adult basic education, adult literacy education, or skill development. It can take different forms of learning, which is consistently and systematically provided in order to develop a particular skill or ability in an individual.This type of education is highly flexible and it includes a wide range of activities. Some of the examples may be fitness programs, community-based adult education courses, and free courses on different platforms, etc.

Constitutional Provisions Related to the Right to Education

The right to education is a constitutionally protected right in India. The Constitutional provisions which supports and protected the right to education under the constitution of India are:
  1. Article 21-A: It was included to make the right to education a Fundamental rightfor children aged 6 to 14. It states that “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”.This provision was not included in the Constitution of India 1950. It was inserted by the Constitution (Eighty-sixth Amendment) Act, 2010.
  2. Article 45: It talks about the provision for free and compulsory education for children. It states that “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”.
  3. Article 46: It talks about the Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections under which it is clearly stated that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”.
  4. Article 51-A(k): was added as the fundamental duties under Part IV of the Indian Constitution which states that “who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”.

Legislative Acts Related to the Right to Education:

Right to Education (RTE) Act 2009

The Parliament has enacted the Right to Education Act 2009 (RTE Act) with the objective of regulating the degradation of the standard of the education system and uplifting the education imparting procedure by implementing specific provisions that required certain reformations to live up to the spirit of catering a quality and equitable education irrespective of caste, creed, gender economic and social background. The Act was enacted on 4th August 2009 and came into force on 1st April 2010. The principal features of the Act are as follows:
  1. The Act clearly mentions that education is the Fundamental Right of every child.
  2. Private schools must keep 25% of seats reserved for children belonging to the backward classes in terms of social background.
  3. The Act also provide educational rights for dropout students.
  4. Unrecognized schools are barred and are not allowed from interviewing a child or a parent for admission.
  5. Schools are barred and are not allowed to charge any capitation fees at any step while providing admission to a child.
  6. The Children who are pursuing elementary or primary education shall not be expelled, held back, or pressured to pass a board examination.
  7. The Act mandates that every government and aided schools should create a School Management Committee which composed of 75% of members as parents or guardians.
  8. The Act strictly prohibited physical punishment, mental harassment and private tuition by the teachers.
  9. The Act states that the provisions for a child’s admission to an appropriate class should be based on his/her age in the event that child has never been admitted to any school. And in order To help the child to keep up with other students, provisions relating to special training have also been mentioned in the Act.
The RTE Act 2009 acted as a tool in accelerating and developing the spirit of imparting free and compulsory elementary education to children between the age group of 6 to 14 years. Subsequent to the enforcement of the Act, a drastic change came about in the standard of education both in access and enrolment levels; literacy rates of the states and also enhanced at large. However, lately, due to a lack of an appropriate regulatory framework, the practical application and compliance with the provisions of the Act are facing repeated failure.

Landmark Cases and Judgement

 Case: - 1 Mohini Jain vs State of Karnataka(1992). In this case Miss Mohini Jain, a resident of Meerut applied for the admission in the MBBS course in a session which was commencing from 1991 in a private medical college located in the state of Karnataka. The college management asked her to deposit a sum of Rs 60000/- as the tuition fee for the first year and also to show a bank guarantee of the amount equal to the fee for the remaining year. When Miss Jain’s father questioned the management that the asked amount was beyond his reach, the management denied Ms. Jain’s admission to the medical college. Then Miss Jain informed the court that the management demanded an additional amount of Rs 450000/- however the management denied the allegation. Issues
  1. Whether “Right to Education” is guaranteed to the people of India under the constitution?
  2. Whether the charging of Capitation fees is violation of Article 14 and 21?
Judgment In this case the honourable Supreme Court held that although the right to education is as such has not been guaranteed as a fundamental right under the Indian constitution But it becomes clear from the preamble of the constitution and its Directive Principles contained in part 4 because the framers of the constitution intended that it the duty of  the state to provide education for its citizens. The court also held that the charging of a capitation fee by the private educational institutions violated the right to education as implied from the right to life and human dignity and the right to equal protection of the law. In additional the court held that the private institutions, which are acting as agent of the state have a duty to ensure equal access to and non discrimination the delivery of higher education. Thus we can conclude that The Court, in the absence of any Constitutional Provision for the Right to Education, held that the right to life and personal liberty under Article 21 also includes the Right to Education as education is required for the overall development of personality, without which one would not be able to have the enjoyment of his right to life. The purpose of the right to life is baseless without the Right to Education. Case:-2 Unni Krishnan, J.P & Ors vs State of Andhra Pradesh(1993) The case comes into existence through petitions filed by private educational institutions to challenge the state laws. These state laws were enacted with the objective of regulating the capitation fee charges in the states of Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra. These Laws mentioned that any person who is involved in the management and taking additional fees will be considered as capitation fees. Issues Whether Right to Education under Article 21 extend to technical education? Judgment In this case the Supreme Court with a Constitutional bench held that the education up to the age of 14 years to be a fundamental right and “It would be therefore incumbent up on the state to provide facilities and opportunity as enjoined under Article 39 (e) and (f) of the constitution in order to prevent exploitation of their childhood due to indigence and vagary”. In this case the Supreme Court By narrowing the approach taken by it in the Mohini Jain case, that the Right to Education is undoubtedly a Fundamental Right under Article 21. However, the right to free education is available to children until they attain the age of 14 years; after that, the obligation of the state to provide education is subject to economic capacity and development. Case:-3 Avinash Mehrotra vs Union of India(2009) In this case, The Court held that it is a fundamental right to have access to education free from the fear of security and shall have appropriate safety measures in case of any threat to life. Therefore, the right to education also includes providing safe schools in accordance with Articles 21 and 21A of the Indian Constitution. No matter where a family seeks to educate its children, even if it is a private institution, then the state must ensure that children shall not suffer any  harm while exercising their fundamental right to Education.

Amendments to Achieve Right to Education

86th Constitutional Amendment (2002)  In 2002, The constitution was amended by the 86th Amendment act with the objective to provide the Right to Education as a fundamental right.This Constitutional Amendment is made with the intent to protect the citizen’s rights to education, as well as to estimate the forthcoming and existing challenges in India concerning education. The Three main provisions in Constitution that 86th Amendment, 2002 incorporates and which promotes free and compulsory education to children between the age 6 to 14 years. They are as follows:-
  1. Article 21A: it was incorporated under the Fundamental Right which are mentioned under (Part III) of the Indian Constitution has expressly mentioned the right of every child to have access to full-time elementary education that would attain the standard of equality and quality through a formal school which would be satisfactory in terms of setting the norms and standard of the education.
  2. Article 45 was Altered and modified: Before the 86th Amendment 2002, Article 45 of Directive Principles of State Policy stated that free and compulsory education shall be provided to children up to the age of 14 years old. However, subsequent to the amendment, Article 45 was altered and modified, which states that “the state shall endeavour to impart early childhood care and education for every child till the age of 6 years instead of 14”. The age limit has been reduced to emphasize the prominence of early childhood care and education.
  3. Article 51-A(k): It was added as the fundamental duties under part IV of the Indian Constitution that it is the duty of the parents and guardians to provide and facilitate the opportunities for education to their children who are between the age group of 6 to 14 years.

CONCLUSION

Thus we can say that now The right to education is recognized today as a fundamental right under the Constitution of India. And This is a relatively recent development. The Constituent Assembly only included that it is the obligation of the state to provide free and compulsory primary education under Article 45 of the Constitution. But this is a Directive Principle of State Policy, which was not enforceable by courts. Articles 29 and 30, however, they are justifiable fundamental rights but they only prevent the state from discriminating against minority groups in access to education or in the establishment of educational institutions. So we all should say thank you to the honorable Supreme Court because it also plays an important role in directly reaching the journey of article 21 A by giving landmark judgments like the Mohini Jain judgment, Unni Krishnan judgment and many more which encourages and motivated the Indian Government to take necessary steps in order to provide Right to Education under Indian Constitution like 86th Constitutional Amendment Act, 2002 and enforcing laws like Right to Education Act, 2009 and many more So Because all of this The right to receive basic elementary education is one of the most important rights. And we can also say that the Right to Education is one of the best legislation in our country. And As per the layman’s perspective, the provision is either good or bad but the law holds the accountability, more.  And once A famous philosopher has said that “law is the public conscience” – Thomas Hobbes. Law is made for the welfare of society and not for the purpose of making the welfare of oneself.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. J N Pandey,”Constitutional Law of India”p.382 Central Law Agency, Allahabad 2022.
    2. Agrawal, Tushar. “Right to Education Act and Educationally Backward States in India.” SSRN Electronic Journal, 2012, doi:10.2139/ssrn.1985122.
    3. Gursharan Singh Kainth “Right to education” Bharti publications Delhi 2014, page no. 29.
  1. Online Articles / Sources Referred
    1. https://www.researchgate.net/publication/342734746_right_to_education_with_special_reference_to_Article_21A
    2. https://www.aclu.org/documents/your-right-equality-education
    3. https://kappanonline.org/underwood-education-american-right/
    4. https://law.vanderbilt.edu/a-novel-argument-for-the-right-to-public-education/
    5. https://eduhutch.blogspot.com/2021/07/definition-of-education.html
    6. https://en.unesco.org/themes/education/sdgs/material/04
    7. https://www.escr-net.org/caselaw/2009/mohini-jain-v-state-karnataka-1992-air-1858
    8. https://www.escr-net.org/caselaw/2006/unni-krishnan-jp-ors-v-state-andhra-pradesh-ors-cited-1993-air-217-1993-scr-1-594-1993
    9. https://www.cuemath.com/learn/3-types-of-education/
    10. https://www.lawctopus.com/academike/right-education-india/
    11. https://www.thehindu.com/news/national/India-joins-list-of-135-countries-in-making-education-a-right/article13666115.ece
    12. https://lawbhoomi.com/development-of-education-as-a-right-in-india/
  1. Cases Referred
    1. AIR 1992 SC 1858
    2. AIR 1993 SC 2178
    3. 6 SCC 398 (2009)
  1. Statutes Referred
    1. Article 21-A of the Constitution of India, 1950
    2. Article 45 of Constitution of India, 1950
    3. Article 51A(k) of Constitution of India, 1950
    4. RTE Act, 2009
    5. 86th Constitutional Amendment Act, 2002

Continue ReadingRight To Education under Article 21 of the Indian Constitution

DIVORCE

Author-Muskan Srivastav, Amity University, Lucknow

ABSTRACT

Divorce is a source through which a husband and wife officially and legally can end their marriage. It is a formal process of ending a marriage, it's not like a temporary separation. If someone gets a divorce it means that their marriage has ended and is officially over. Divorce carries out both emotions happy and sad. it's not necessary in everyone's case that divorce is peace but in some cases it is. Now, that's another thing no one values the emotion of marriage and uses divorce as a toy. whatever law is made in India or in any country it has both positive and negative impacts with it, divorce is also like this. There are many grounds for divorce. There are many reasons why one can decide to take a divorce either because of constant conflict or because of other things like going to die soon because of a disease or getting caught cheating, and let's not assume that the reason for all this will always be men, no it's not always men, sometimes it's women who misuses their rights and cheat and then lead to divorce. Both men and women are equally responsible for the mishap in the society. But at the end of the day, divorce is the only way to end a toxic relationship which could be dangerous for the couples and children in the future. Keywords (Minimum 5): divorce, emotion of marriage, ending of toxicity, misuse rights, positive and negative impact

INTRODUCTION

If two people can’t compromise with each other and are victims of a toxic or forced relationship they need to be separated, and for that law exists. Divorce, it’s a mean or a way for a person to escape from a forced and stressful relationship through a legal and formal process, if they are separated in the eye of the law then no one can dare to interfere in their matter or force them to stay in a relationship. In earlier days it was not possible to get a divorce or get separated from an unwanted or toxic partner, it is one of the main reasons why domestic violence took place in large numbers in every household. Divorce is nothing new it has been coming in power for years to years but there is this difference that divorce was not mutual in earlier days, it was all up to the man, if he wants to stay with his wife he will and if he doesn’t then he would simply send their wife back to their home, they are not official separated but living separately. In other countries, the divorce system was famous and was enacted, but in India, it took time for women to realize their rights and to take a stand for themselves. Because in India it was taught to every girl that their husband is their everything and that they should just follow their husband’s order and accept their toxic and immoral behavior as they are their “Pati Parmeshwar” and that they should worship them. But that’s a relief that now women in India are aware of their rights they know what is wrong and what is right, if they should stay or just let it go.

Meaning & Explanation

Divorce is a source and an act by which a valid marriage can turn into void and null in the eye of the law. The main motive of divorce is to free the other party to live their life as they want or remarry if they plan to do so. Divorce generally imposes the nullification or restructures of the legal duties and obligations of marriage. It can be said as a lawful conclusion of a marriage by the court or other qualified body. People decide to get divorced when things get too tangled up and out of control. If two people cannot compromise for an hour, a second, or a day there is no chance that they would be able to spend the rest of their lives together. By keeping all this in mind that this not compatible individual’s life would become hell in the future if lived together, a law was formed known as Divorce. Divorce declares a marriage null and void in the eye of the law. Divorce is surely needed as a safety law, everyone needs to compromise with their partner in married life but compromise includes things like trust, giving independence, mutual understanding, compromising with each other’s unexperienced habits if have one, letting each other live their life as they want, and no single dominant partner, both to be treated equally. These are some of the things which are needed between a married couple but the main thing is mutual understanding, if this is not between the couple then the marriage is long ago over. If two individuals in a marriage are not compatible it is hard for them to live, it would feel like jail or hell for them every day as if they are prisoned in a forced relationship, and that’s why they need to be separated and for that a legal formal process ‘DIVORCE’ has been made. Though in India it is not just a paper away work, it took a lot of courage to come to this decision because some religions or societies still don’t accept a divorcee in a society, and they get a lot of backlash for being a divorcee.

Background & Evolution

Divorce known as a legal way for separation, was found and practiced in British India in the year 1869 and this law was not really for Indians it was generally made for Christians who were looking for a way to end marriage lawfully, resulting in divorce. In India it was not easy to generalize the system of divorce, Indian society would never accept a divorcee in a society so they would not let a couple end their relationship. Even if they are in a toxic relationship, they need to stay just like this and bear with it for the rest of their life. This later on resulted in an increasing rate of domestic violence. In India divorce was not normalized at that time they gave a lot of importance to the patriarchy and women were not educated enough to be aware of their rights. Later on, in the year 1955, an act was formed known as the Hindu Marriage Act, 1955. It was made to let people file for divorce under this act. The Hindu Marriage Act is established to help both bride and groom to safeguard their fundamental rights and right to live without any violence and discomfort. Several laws were made under this act in favor of women, and that was needed because in earlier times women tended to suffer a lot more than men. sometimes men also suffer in a relationship but the majority are always women. After the act was made women started getting aware of their rights and started to take a stand for themselves. They realized that they don’t need to be in a toxic relationship forcefully they can end things if it’s getting overboard. It doesn’t mean that a husband or wife is cheating on their partner and for remarriage they need to let go of their partner so they file for divorce, if such a case happens the other partner can reach out to the court for restitution of conjugal rights if the reason of divorce is not a reasonable and legal excuse, they can reach court for that. The process of divorce has evolved a lot in the present time the rate of divorce is also getting high in India which was not possible in earlier times, but it doesn’t mean that it only has a positive impact, it has both positive and negative. Positive because now both individuals can live freely and however, they want, and negative because by all these divorce processes children suffer a lot they get childhood trauma, they get the incomplete love of parents, as they experience the pain of separation from loved ones in a very young age. Divorce has evolved a lot over time, everyone is now aware of the process of ending a toxic relationship that they won’t dare to spend the rest of their life.

Comparison with other Countries

India has the lowest rate of divorce worldwide. Generally, western societies traditionally have higher divorce rates than Asians. It’s not a great thing that India has the lowest rate of divorce because it means that they are forced to stay in an unwanted relationship. After all, they are afraid of the backlash they would get if they get a divorce. India is a diverse country and values their culture a lot, it is a country where people still decide to stay in a joint family and depend on each other. On the other hand in Western culture, no one stays in a joint family even teens start living on their own by coming to an age, when they don’t care much about society culture, and norms they do what they like and feel like to do without thinking of society, in western societies an individual’s decision is respected they won’t get judged by the society they don’t fear society’s thought process that much. In India, it is hard for a divorcee to live freely because society would look down on that person rather than feel sympathetic for them and demotivate them by their words. Unlike in other countries where love marriage is normalized, every individual has the right to marry whoever they want irrespective of their caste, creed, or religion. India is not at all like this, Indian culture doesn’t support love marriage, inter cast, or inter religion much. The majority of Indian weddings are arranged and in arranged marriages, individuals don’t know each other that much which results in a lack of intimacy and love which makes them stay with their partner longer. Another difference is the financial dependency of women on men, In western culture very few females are dependent financially on their husbands, the majority are financially independent while in India majority of females are dependent on their husbands financially, nowadays this thing is changing and women in India is also getting financially independent on their own but majorities are not really financially independent, they depend on their husband, this is the reason why the divorce rate in western countries is much more in comparison to India. In India divorce generally takes place in rich class family, middle class people avoid getting divorced as much as they can.

GROUNDS

In India, divorce is granted mainly on various grounds. These are Adultery, Desertion, Cruelty, mental disorders, chronic disease leprosy; venereal disease, etc. These grounds for divorce in India are mentioned under the Hindu Marriage Act, of 1955.

ADULTERY

Adultery is an act where a person is involved in any kind of sexual relationship, also intercourse outside marriage. If husband or wife is cheating on each other by committing an act of adultery then this single act is enough for the petitioner to get a divorce. Adultery is known as a criminal offense and requires considerable proof to establish it.

CRUELTY

In marriage, if the partner gives physical or mental injury to their partner then a spouse can file a divorce case. The cruelty under the Hindu Marriage Act includes any type of false allegation, excessive demand of dowry, an injury that causes danger to life, perverse sexual act, mental torture, and such types of cruel offenses are defined under this act.

DESERTION

In a marriage if the husband or wife by their own choice disowns his/her partner for some time such as two to three years, then the abandoned spouse can file a divorce case.

MENTAL DISORDER

If one of the partners is suffering from any type of mental disorder that in incurable and results in insanity which may harm the spouse in the future and they won’t be able to stay till last together, then the spouse can file for divorce on the grounds of mental disorder.

VENEREAL DISEASE

If one of the partners is suffering from a serious disease that can be transmitted easily and is communicable, such as AIDS is considered as venereal disease. Then the spouse can file a divorce on the grounds of venereal disease. There are many more grounds for divorce these were some of them explained in short.

PRINCIPLE

There are certain rules and principles for divorce in India under the Hindu Marriage Act, of 1955, which apply only to Hindu religious people. Every religion has its customs and culture, so some laws are made differently by keeping the religion and customs in mind. Nowadays, even in India, the partners don’t hesitate much to get a divorce and move on in their lives. According to section 13 B (2), if the married couple moves to the court for divorce with mutual consent, a mandatory six-month period is given to them in case they change their mind in these six months. this rehabilitation six-month period was necessary to give, but now there is a change in the rule and it’s not that mandatory anymore, now it depends on the court’s discretion. A civil court can only give the order for divorce. there are other rules and principles which help to understand the divorce process clearly, it helps to understand all the process. CASE LAWS
  • Akanksha vs Anupam Mathur
In this case, it was observed by the supreme court that the couple had made a voluntary decision to divorce and that there was no need to make the couple wait another 6 months for divorce. the court decided to dismiss the 6-month time limit and conclude the marriage.
  • Sangamitra Ghose Vs. Kajal Kumar Ghosh
In this case, the court states that they are fully satisfied that the marriage between the couple has irretrievably broken down because of inconsistency of personality. there has been a total vanishing of an emotional framework in the marriage.
  • Naveen Kohli v. Neelu Kohli (2006)
This divorce case is based on the ground of cruelty, the Supreme Court restates that if a marriage has broken down hopelessly or irretrievably and there is no possible sign of reunion, then it can be considered a reasonable ground for divorce. The court noticed and concluded that it was a waste to force parties to live together as it would only lead to great disaster.

Statistical Analysis / Data Analysis

  • India has the lowest divorce rate worldwide.
  • 108 divorces in 2021(0.077)
  • 315 divorces in 2020 (0.022)
Because of patriarchy, male-dominated society, culture, norms, and women’s financial dependency, the divorce rate in India is lowest.

CONCLUSION & COMMENTS

Divorce is not just an ordinary social importance; it is a serious social and psychological significance.in India, it was not easy to get divorced or even think about getting a divorce. Divorce is an escape for those spouses who suffer every minute and hour of suffering in the guilt of living with someone toxic or not compatible with them. Divorce affects the personal and social life of the partner and the whole family members. To safeguard the divorce process from getting misused by any spouse, several grounds were made. These grounds help decide the valid reason for granting a divorce. After 1955 when the reformers introduced the Hindu Marriage Act, 1955, it became easy for the parties to resolve any dispute going on in their married life, and could leave if things got too complicated and hard to handle for the rest of their life. Before 1955, there was no provision for separation or leaving the partner legally. Divorce rates are now increasing because of changes in the mindset of an individual, people are getting educated about their rights and know how to fight for themselves, they come forward and take a stand for themselves and move on in their lives. Though divorce rate of India used to be the lowest and still is the lowest compared to other countries.

REFERENCES

  1. Online Articles / Sources Referred
    1. https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/#:~:text=A%20brief%20history%20of%20the,divorce%20or%20allow%20for%20it
    2. https://divorce.com/blog/divorce-rates-in-the-world/#:~:text=Lowest%20Divorce%20Rate%20Country,)%20and%202021%20(0.077
    3. https://aishwaryasandeep.in/concept-of-irretrievable-breakdown-of-marriage/#:~:text=Case%3A%20Sangamitra%20Ghose%20vs.,emotional%20substratum%20in%20the%20marriage
  1. Cases Referred
    1. Akanksha vs Anupam Mathur
    2. Sangamitra Ghose Vs. Kajal Kumar Ghosh
    3. Naveen Kohli v. Neelu Kohli (2006)
  1. Statutes Referred
    1. Hindu Marriage Act, 1995

Continue ReadingDIVORCE

Compensation to the Victims of Crime under Criminal Law

Author-Chaitanya Sharma, National Forensics Sciences University, Delhi 

INTRODUCTION

Providing compensation to the victim is a very important aspect of any criminal justice system. Especially in India where there is a very high crime rate requires significant attention from the legislature as well as from the judiciary to take appropriate actions. Victims who go through with the crime suffer from physical as well as mental injury. To alleviate their sufferings victim compensation is provided to them with a sense of justice and make them assure that they will get speedy justice. In this article firstly we will go through who is a victim under the scheme of victim compensation then legal provisions dealing with victim compensation, and hurdles in getting compensation after this we will dive into the recent developments going on in the victim compensation scheme and what is the mechanism framed for getting compensation and finally, we will conclude. Keywords: Victim Compensation, Code of Criminal Procedure, Victim, Accused, Criminal Justice System

Who Qualifies as a Victim of Crime?

Any person, group, or entity that has suffered harm, which can be of any type including mental, physical, economic, or other. The beauty of the Indian legal system is that it considers victims to those people also whose perpetrators are absconding or not yet prosecuted. If someone is dead as a result of a crime the family members of the deceased will be regarded as the victims and they will be provided all the facilities which are provided to the victim itself. A victim can be defined asa person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir[1] Another definition of victim is as follows “Persons who individually or collectively have suffered harm including physical and mental injury emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that are violation of criminal law”[2]

Legal Provisions Dealing with Victim Compensation:

Constitutional laws:
  • Article 14:The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[3]
  • Article 21:No person shall be deprived of his life or personal liberty except according to procedure established by law.[4]
Criminal Procedure Code,1973:
  • Section 357:When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied---
(a) in defraying the expenses of properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.[5]
  • Section 357A: “Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.”[6]
  • Section 358: “(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding 1[one thousand rupees], to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.”
(2) In such cases, if more persons than one is arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding 1 [one thousand rupees], as such Magistrate thinks fit. (3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.”[7]
  • Section 359:Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and pleader's fees which the Court may consider reasonable.
(2) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.”[8]

Hurdles in Getting Compensation:

  • Every state has its own victim compensation scheme which creates non-uniformity across all states and they don’t abide by central government guidelines and by these discrepancies victims have to suffer.
  • Wide umbrella terms have been made by the state government which includes several crimes under one ambit and they have already set a prerequisite amount of compensation which is an injustice to the victims.
  • Each state has its own theory to allocate victim compensation, some states regard nature of crime as primary fact for compensation while other states regard age as a fact of awarding compensation.
  • Due to increase in crime rate in India, the recipient of victim compensation has increased to an alarming level which directly affects the state treasury.
  • The process of awarding the compensation is very lengthy which takes a large number of times to allocate the compensation.

Measures:

  • Victimology must be introduced in the Indian criminal justice system and judges and lawyers need to understand that giving harsher punishment will not benefit the victim, rather actions which are reparative in nature will help them start their new life again.
  • A new mechanism must be made to assess the impact of the crime on the victim and after assessing all the factors than victim must be awarded the compensation.
  • Proper implementation of laws must be taken place sections 357 and 357A of the Crpc talks about compensation but their implementation is very important in mainstream to compensate the victims.

Recent developments:

  • Ministry of Home Affairs in 2018 established victim compensation scheme, which aims to provide financial assistance to victims and made the process transparent as well as speedy. This scheme works on the theory of restorative justice and help the victim to mitigate his financial burden.
  • In year 2015 the central government set up the Central Victim Compensation Fund Scheme. The main aim of this scheme is to support the various schemes going on in various states and UTs. It talks about the budget allocation, particularly for victim compensation and if any state was lacking funds central government helped the respective state by allocating the funds.
  • Supreme Court of India in its various judgements has reiterated various guidelines and orders to state as well as executive agencies to comply with it some of the landmark judgements of the Supreme Court are as follows:
  1. Ankush Shivaji Gaikwad v State of Maharashtra (2013)6 SCC 770: The Supreme Court of India in this landmark judgement made it compulsory for trial courts to consider grant of interim compensation and specifically give reasons for not awarding the interim compensation
  1. Rudal Sah V State of Bihar AIR 1983 SC 1086: The petitioner in this case was illegally detained for more than 14 years and after due deliberation he was released and a writ petition was filed by the petitioner and Supreme Court awarded the petitioner with a compensatory amount of 30,000 Rs. It was the first case in India where a writ court in India awarded compensation for illegal detention.
  1. MC Mehta V Union of India AIR 1987 SC 965: The Supreme Court held that its power under Article 32 is not just confined to preventive measures when there is a violation of fundamental right but it has its scope to remedial measures which also includes compensation where rights of the victim have already been violated.
  1. Hitendra Vishnu Thakur Vs State of Maharashtra (1994 )4 SCC 602: It was held by Supreme Court that “…A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties…
  2. Suresh v. State of Haryana (2015) 2 SCC 227: The Supreme Court held that “It is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial…relief.” The gravity of offence committed towards the victim and the condition of victim are the grounds to decide the compensation.

CONCLUSION & COMMENTS

Victim compensation under criminal law has witnessed systematic and fast progress in awarding compensation to the victims. Though the legal provisions in criminal law are hard to comprehend and checking the credibility of the victim is still a challenge the Supreme Court of India has played a vital role in this regard and by its myriad judgements tried to bridge the gap between courts, executive agencies and financial institutions. Lack of funds is a very serious problem states going through but the Central Government by its various initiatives tried to release the load over state. Regular auditing of funds should be done to check the progress in compensating the victims. By prioritize the victim compensation India can move towards a victim centric criminal justice system which not only punish the criminals but also compensate the victims and help them to get justice speedily and without any financial Hurdle.

REFERENCES

  1. Online Articles / Sources Referred
    1. efaidnbmnnnibpcajpcglclefindmkaj/https://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf
    2. https://www.legalserviceindia.com/legal/article-6103-a-critical-study-on-victim-compensation-under-various-laws-of-india.html
    3. https://www.livelaw.in/tags/victim-compensation
    4. https://www.scconline.com/blog/post/2024/01/10/delhi-government-published-amendment-in-delhi-victims-compensation-scheme-legal-news/
  1. Cases Referred
    1. Ankush Shivaji Gaikwad v State of Maharashtra (2013)6 SCC 770
    2. Rudal Sah V State of Bihar AIR 1983 SC 1086
    3. MC Mehta V Union of India AIR 1987 SC 965:
    4. Hitendra Vishnu Thakur Vs State of Maharashtra (1994 )4 SCC 602
    5. Suresh v. State of Haryana (2015) 2 SCC 227:
  2. Statutes Referred
    1. Code of Criminal Procedure
    2. Constitution of India
    3. Section 2 (wa) - Code of Criminal Procedure,1973
    4. UN Declaration of Basic Principles of Justice for victims of crime, including those law proscribing criminal abuse of power, 1985
    5. Constitution of India,1950
    6. Constitution of India,1950
    7. Order to pay compensation., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&sectionId=22766&sectionno=357&orderno=399.
    8. Victim compensation scheme., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=400.
    9. Compensation to persons groundlessly arrested, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=403.
    10. Order to pay costs in non-cognizable cases., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=40

Continue ReadingCompensation to the Victims of Crime under Criminal Law