by IJLMH | Jul 4, 2020
The year 2020 has marked severe economic drawback in India due to the outbreak of the Covid-19 Virus. The present scenario reflects that more than 2 lakh people have been tested positive with the virus. The fear and the lockdown imposed by the Government have further deteriorated the functioning of the business enterprises. Insolvency and Bankruptcy Code,2016 deals with the provisions for declaring insolvency and resolution of the companies in cases of defaults in payments of their dues. In the light of the present economic conditions several changes have been introduced by the Central Government in the Code to help revive the economy and protect the interests of the corporate debtors as well as stakeholders. This paper aims to analyse and study the three major changes i.e. Insolvency and Bankruptcy Code (Amendment) Act, 2020, Increase in the threshold limit by a notification issued by the Central Government, and Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020.
Keywords: Insolvency, Resolution, Corporate debtors.
by IJLMH | Jul 4, 2020
The provisions for automatic stay on the enforcement of an arbitral award under Section 36 of the Arbitration and Conciliation Act 1996, due to a challenge to set aside the award under Section 34 have long been criticized as going against the object of the Act, i.e. to provide a speedy and cost effective method of dispute resolution with minimal judicial intervention.
This irregularity was rectified by the Arbitration and Conciliation (Amendment) Act 2015 by amending Section 36 of the Act to negative the provisions for automatic stay on the filing of a Section 34 petition. Furthermore, the Supreme Court, in the case of BCCI v Kochi Cricket Pvt. Ltd. Had categorically stated that the judicial interpretation of Section 36 to allow an automatic stay on the enforcement of an arbitral award was patently false as the proceedings under Section 36 were merely procedural in nature. The Court also held that the 2015 amendment would also apply to Section 34 petitions filed before the commencement of the 2015 Amendment due to the same reason.
However, the legislature enacted the Arbitration and Conciliation (Amendment) Act 2019 to substantially negate all the progress made by the 2015 Amendment and the BCCI judgement by inserting Section 87 and repealing Section 26 that was inserted by the 2015 Amendment.
The present paper is an in-depth analysis of the evolution of the provisions for automatic stay on arbitral awards which finally led to the Supreme Court’s decision in the case of Hindustan Construction Company v Union of India, in which the Court has held that Section 87 of the 2019 Amendment was violative of Article 14 of the Constitution, and that the language of Section 36 warrants no automatic stay on enforcement.
by IJLMH | Jul 4, 2020
Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Even though, Marital rape is a very heinous and atrocious crime, still it has not been criminalized in a number of jurisdictions, with India being one of them.
This paper attempts to highlight the core issues of Marital Rape by highlighting the history, the role of our current society and various judicial pronouncements, which has led to the current problem of Marital Rape in our Society by not addressing the issue properly, and in a sense turning a blind eye to it by the Courts.
This paper, along with addressing the issue of Marital Rape, also attempts to provide suggestions in order to guide the Legislature and to create awareness about such a grievous issue, which is still treated as a Taboo in the Indian society instead of a heinous crime, leading to a regressive state of development of the society as a whole instead of progressive. This Paper attempts to bring to light the current scenario of the Indian Criminal Jurisprudence.
Keywords- Marital Rape, Constitutional Law, Criminal Law, Legislature, Women
by IJLMH | Jul 4, 2020
Summary trials were introduced with the perspective of having an effective tool to curb long pending criminal trials in the country. A overburdened judiciary has been of concern for the law-makers, judicial officers and executive authorities since long. Justice delayed is justice denied. A criminal trial is often based on the premise of not only ascertaining guilt but also determining the innocence of the parties involved by ensuring that unnecessary hassle and injustice is not done to both of them. Our Criminal Justice system has come up a long way in ensuring a fair mechanism of determining guilt and innocence and also balancing the interest of the accused and victim, but has often been targeted on the ground of on-going battle for justice for decades, which the parties have to undergo causes mental, physical and financial loss in the long run. The Apex Court of the country has read right to speedy and fair trial and accessibility to justice as part and parcel of Article 21 of the Constitution, thereby, creating a strong edifice of justice delivery system in the country. Summary trials were hence, understood as a mechanism to plug-in the loophole of ever continuing criminal trials, but it also raised many questions regarding the friendliness of the adoption of this mechanism with respect to the accused and the victim concerned.
Key phrases: Summary trial, criminal justice system, fair trial, justice delivery system, speedy trial, accessibility to justice, overburdening of cases, long pending trials.
by IJLMH | Jul 4, 2020
Lesbian, gay, bisexual, transgender and questioning individuals consists a minority and unwarranted group with distinctive character which are actually identified in paper but even today when it comes to reality, they remain deliberately unrecognized in the strata of the society. Prior studies have shown that these underrepresented social groups face unconcealed and stealthy workplace biasness, lack of professional success and workplace dissatisfaction. They are yet to come out freely in the society and walk with their heads held high in their work place without the fear of being degraded and judged. This post decriminalization period is yet to take into account and accept what the law has decided for this naturally inherited sexually oriented people and take necessary actions. Socio economic degradation, workplace prejudice and societal unfairness have made this people do informal jobs for their livelihood. Despite increasing social acceptance and lessening disapproval, many individuals are still disagreeable working with lesbian, gays, transgender, bisexual peers. We are yet to solve this problem being faced by this community people in the workplace as well in their daily life. We are yet to bring in action to what is written in papers to real life after this post decriminalization. Although, the decriminalization of section 377 of the Indian Penal Code is done on paper, the acceptance by society is yet to take its course. The judgment was just the start to the battle towards recognition of identity of the community and the community still faces a lot of discrimination, unemployment and harassment in workplaces. There are several laws shielding their identity from such sufferings but the society is far from complying with those provisions. Hence, it should be an eye opener for the society that LGBTQ community is a legalized community and should be equal opportunities as other citizens.
by IJLMH | Jul 3, 2020
The word “homicide’ is derived from the latin words homo and cide. Homo means a man and cide means to cut, therefore homicide means the killing of a man. Homicide is also synonymous with the word murder. Nothing is more precious to man than his life. Therefore, killing a man is one of the most heinous offences man can commit. The punishment given by the jury for such a crime is also of great magnitude; as such a crime is unforgiveable. However, there are certain circumstances where the crime is considered for pardon. Homicide can be justified in certain cases and the punishment for the same can also be mitigated. These are very special circumstances. The concept of justifiable homicide arises from the grouping of offenses amounting to murder under certain heads. The classification is done on various factors including the gravity of the motive and intention, the kind of intention, the personality of the wrongdoer, et cetera. The degree of punishment awarded differs based on the category of murder. This differentiation has not evolved recently and has existed even before the Indian Penal code was drafted. Awarding a punishment was also subject to a case to case basis, besides the standard categorization. For certain cases, the murder can be justified based on the intention or circumstances leading to murder. Thus the concept of defenses to murder developed. This system of justice can be traced back to the Hindu code of law and Shariat Law. The Hindu and Muslim dynasties that had ruled India before the British had adopted customary laws that had allowed for differentiation of murder and exemption or mitigation of liability. Several of these provisions have been incorporated directly or after modification in the IPC, whereas some have been omitted.
