Editorial

Editorials of The Year

Criminalizing Marital Rape: Uncertainty Continues Unabated
The proposal to enact penal provisions to punish marital rape must be closely scrutinized in the light of the fact that such offences would be hard to prove in a court of law, and if the onus of proof is not on the prosecution to prove the case beyond reasonable doubt, the law might be grossly misused.
January 2016

Decriminalizing Homosexuality: Curative Adjudication or Corrective Legislation?
What might be lost in the crossfire of arguments is that the right place for the morality debate about Section 377 as applicable to the homosexuals is the legislature and not the courts because the courts are supposed to pronounce on the legality and constitutionality of the laws and on the rightness of the moral position that the State takes with respect to an act declared as crime.
March 2016

National Court(s) of Appeal: Delineating or Detracting Apex Court’s stature?
The idea of having a National Court of Appeal for the exclusive purpose of adjudicating the appeals arising from the judgments and awards of the High Courts and the tribunals across the country so as to allow the Supreme Court to concentrate better on settling the crucial and intricate issues of the law and of matters involving the interpretation of the Constitution is indeed quite appealing, and the proposed measure, if undertaken with due care, might result in solving the long standing problem of pendency at the highest judicial level, but it would be better to leave it to the Apex Court to decide when it is the right time for the implementation of the idea.
May 2016

No Excuse for Child Abuse:
Re-appraise and Fine-Tune POCSO Act
A female child must be protected by all means, but that should not translate into making male children more vulnerable to undeserved prosecution and punishment. In taking ‘age of consent’ from 16 to 18 the legislators seem to have disregarded the clear distinction between consensual sex and violent rape to the extreme disadvantage of unsuspecting young teenagers.
February 2016

Bar Exam under SC Lens:
Advocates Act vis-à-vis BCI Rules
Regardless of the position of law regarding the powers of the BCI to prescribe the Bar Exam, it is not in dispute that legal profession is in dire need of reform, and it needs to be ensured that only the most sincere and the most able enter the profession, for which the needful has to be done by all such means that might be legally permissible. However, another solution could be to add bar exam as a part of curriculum in the final year to be conducted by the recognized institution. This will be within the powers of the BCI.
April 2016

Talaq, Talaq, Talaq – the End!
That Talaq-ul-Biddat causes a great deal of hardship on the woman divorced and furthermore, it might also be argued that the practice puts the husband in a dominant perch with respect to the wife in a marriage. Even so, it is not advisable that a reform – no matter how beneficial – be shoved down the throats of a community, particularly when the reform is likely – howsoever remotely – to be seen as an interference with religious freedoms. For that reason it would be a lot better if the reform regarding Triple Talaq is brought after a broad-based consensus is reached in its favour within the community concerned rather than by forcing the reform through legislative or judicial fiat.
June 2016

Judiciary–Executive
Face Off 2.0
It is not for no reason that the idea of the Executive having a say in judicial appointments is looked upon with extreme suspicion. The explanation lies in our checkered constitutional history. It has not exactly been a smooth ride so far. The Executive has tried to influence the Judiciary going against the spirit of the Constitution before, and there is no guarantee that it would not try its hands at it again. The governments can come and go and the power may change hands, but the changes we make at the institutional level are there to stay, which gives us every reason to be a little circumspect when it comes to tweaking the delicate balance even a bit.
July 2016

Designating Senior Advocates: Time to Revisit Current State-of-Affairs?
There is already an informal system that makes each legal professional find his or her place in terms of the court or forum before which he or she regularly practices, the only question is whether we really need a formal framework of rules determining which lawyer can appear before which court or forum. In this regard we just need to bear in mind that bringing rigid protectionism to legal profession, unlike many other professions, is not particularly good as changing fast, and bringing in more walls, chains and shackles may stagnate the profession.
September 2016

Supreme Court Widens Ambit of Domestic Violence Act
Although the earlier decisions of the Apex Court had already made the position plain, but some ambiguity had still remained due to the restrictive definition of ‘respondent’ under the PWDV Act as ‘adult male person’. The issue has been laid to rest by the recent judgment of the Apex Court, by which the words ‘adult male’ have been deleted on the grounds of not being in conformity with Article 14 of the Constitution of India.
Now, the wholly unnecessary courtroom tussle over whether or not the females can be proceeded against under PWDV Act can be avoided saving a great deal of precious judicial time.
November 2016

Penalizing Delinquent Advocates: Bar Panel vis-à-vis Courts of Law
Once in a while there is an unruly lawyer who pushed things a little too far with the argument, or there is one of those who tend to resort to unfair and, sometimes, patently illegal means to gain advantage. Such people need to be take care of with an iron hand, for they bring disrepute to the legal profession. But then, the job of disciplining the lawyers is best left to the representative bodies of lawyers with Bar Council of India at the apex. It is regrettable that the courts have been forced to consider disciplining unruly lawyers though they have so far shown remarkable self-restraint. It is time for the legal profession to regulate itself a lot more effectively so that the drastic step of judicial intervention is not necessitated.
August 2016

Celebrities Endorsement: Re-look
at Consumer Protection Law
If a product claims to deliver magical results with a certain condition – like dark complexion or ageing or pimples or pale teeth – and also cites some scientific basis to the claim, the advertisers and the endorser must be burdened with greater degree of accountability than, say, a manufacturer of a carbonated drink advertising his product by showing a celebrity endorser perform superhuman feats after consuming the drink in the advertisement.
Advertisers must be penalized for willfully misleading people a lot more heavily than the celebrity endorser enlisted for the purpose because an endorser can be expected to know only so much about the product. The penalty, therefore, must be strictly proportionate to the blameworthiness.
October 2016

Judging the Judges through Performance Evaluation
The complaints against the judges must be closely and carefully scrutinized by an impartial body of judges using a transparent but completely independent procedure. Apart from that a monitoring system to regularly evaluate the performance of judges must also be in place. Although there is an internal system of appraisal for the judges of the lower judiciary, but a similar mechanism at the level of higher judiciary must also be there though it may not be a very good idea for such a system to exist at the level of the Supreme Court because the apex judicial body of the nation must remain free of all evaluations and also of all possibilities of coming under undue influence directly or indirectly.
December 2016

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