शुक्रवार, 14 सितंबर 2018

WRIT (रिट) :- 1

[Writ (रिट) ; के संदर्भ में सामान्य जानकारी हिन्दी में]
                                                                  Writ (रिट)
संविधान के अनुच्छेद 32 के अंतर्गत उच्चतम न्यायालय में और अनुच्छेद 226 के अधीन उच्च न्यायालय में रिट ( writ ) याचिका दाखिल करने अधिकार नागरिकों को प्रदान किया गया है .
संविधान में निम्नलिखित आदेशों का उल्लेख ( Types of writs issued by courts ) है -
1 . बंदी प्रत्यक्षीकरण ( Habeas corpus )
2 . परमादेश रिट ( Mandamus )
3 . प्रतिषेध रिट ( Prohibition )
4 . उत्प्रेषण लेख ( Writ of Certaiorari )
5 . अधिकार पृच्छा ( Quo warranto ).
1.बंदी प्रत्यक्षीकरण ( Habeas corpus)
यह रिट उस प्राधिकारी ( authority ) के विरुद्ध दायर किया जाता है जो किसी व्यक्ति को बंदी बनाकर रखता है . इस रिट को जारी करके कैद करने वाले  अधिकारी को यह निर्देश दिया जाता है कि वह गिरफ्तार व्यक्ति को न्यायालय में पेश करे . इस रिट का उद्देश्य मूल अधिकार में दिए गए " दैहिक स्वतंत्रता के संरक्षण के अधिकार " का अनुपालन करना है . यह रिट अवैध बंदीकरण के विरुद्ध प्रभावी कानूनी राहत प्रदान करता है .
2. परमादेश रिट ( MANDAMUS )
यह रिट न्यायालय द्वारा उस समय जारी किया जाता है जब कोई लोक अधिकारी अपने कर्तव्यों के निर्वहन से इन्कार करे और जिसके लिए कोई अन्य विधिक उपचार ( कोई कानूनी रास्ता न हो ) प्राप्त न हो . इस रिट के द्वारा किसी लोक पद के अधिकारी के अतिरिक्त अधीनस्थ न्यायालय अथवा निगम के अधिकारी को भी यह आदेश दिया जा सकता है कि वह उसे सौंपे गए कर्तव्य का पालन सुनिश्चित करे .
3. प्रतिषेध रिट ( PROHIBITION )
यह रिट किसी उच्चतर न्यायालय द्वारा अधीनस्थ न्यायालयों के विरुद्ध जारी की जाती है . इस रिट को जारी करके अधीनस्थ न्यायालयों को अपनी अधिकारिता के बाहर कार्य करने से रोका जाता है . इस रिट के द्वारा अधीनस्थ न्यायालय को किसी मामले में तुरंत कार्रवाई करने तथा की गई कार्रवाई की सूचना उपलब्ध कराने का आदेश दिया जाता है .
4. उत्प्रेषण लेख ( Writ Of Certaiorari)
यह रिट भी अधीनस्थ न्यायालयों के विरुद्ध जारी किया जाता है . इस रिट को जारी करके अधीनस्थ न्यायालयों को यह निर्देश दिया जाता है कि वे अपने पास संचित मुकदमे के निर्णय लेने के लिए उस मुकदमे को वरिष्ठ न्यायालय अथवा उच्चतर न्यायालय को भेजें . उत्प्रेषण लेख का मतलब उच्चतर न्यायालय द्वारा अधीनस्थ न्यायालय में चल रहे किसी मुक़दमे के प्रलेख की समीक्षा मात्र है , इसका तात्पर्य यह नहीं है कि उच्चतर न्यायालय अधीनस्थ न्यायालय के निर्णय के विरुद्ध ही हो .
5. अधिकार पृच्छा ( Quo - Warranto )
इस रिट को उस व्यक्ति के विरुद्ध जारी किया जाता है जो किसी ऐसे लोक पद  को धारण करता है जिसे धारण करने का अधिकार उसे प्राप्त नहीं है . इस रिट  द्वारा न्यायालय लोकपद पर किसी व्यक्ति के दावे की वैधता की जाँच करता है . यदि उसका दावा निराधार है तो वह उसे पद से निष्कासन कर देता है . इस रिट के माध्यम से किसी लोक पदधारी को अपने अधिकार क्षेत्र से बाहर जाकर आदेश देने से रोका जाता है .
                - आशुतोष सिंह चौहान 

शनिवार, 25 अगस्त 2018

LANDMARK JUDGEMENTS THAT CHANGED THE COURSE OF INDIA

                                                         LAW IMPERIAL

1. JURY DECISION OVERTURNED BY HIGH COURT 

    (KM NANAWATI Vs. STATE OF MAHARASHTRA)- 1961

                                                                                                                                                                   

Hardly an open- and--shut case, the nature of the crime garnered media attention.

This case is notable for being the last case when a jury trial was held in India. KM Nanawati, a naval officer, murdered his wife's lover, Prem Ahuja. The jury ruled in favour of Nanawati and declared "not guilty" which was eventually set by the Bombay High Court.



2. AMENDMENT MASQUERADES AS LAW

    (IC GOLAKNATH Vs. STATE OF PUNJAB)- 1967

                                                                                                                                                                  

Parliament's prevented from taking away individual rights.

In the highly famous case of Golaknath Vs. State of Punjab in 1967 the S.C. ruled that Parliament could not curtail any of the Fundamental Right of Individuals mentioned in the Constitution, Parliament's overarching ambitions nipped in the bud (Keshvanand Bharti vs. State of Karnataka) 1973.



3. ELECTED REPRESENTATIVE CANNOT BE GIVEN THE BENEFIT OF DOUBT

                                                                                                                                                                   

A highly notable case  which introduced the concept of  "Basic Structure of  the Constitution of India' and declared that those points decided as basic structure could not be amended by the parliament. The case was triggered by the 42nd Amendment Act.


4. BEGINNING OF THE FALL OF INDIRA GANDHI

    ( INDIRA GANDHI Vs. RAJ NARAIN) - 1975

                                                                                                                                                                  

The trigger that led to the imposition of emergency. In this landmark case regarding election disputes, the primary issue was the validity of clause 4 of the 39th amendment Act. The Supreme Court held clause 4 as unconstitutional and void on the ground that it was outright denial of the right to equality enshrined in Article 14. The Supreme Court also added the following features as "Basic features" laid down in Keshvanand Bharti Case - Democracy, judicial review, Rule of law and jurisdiction of Supreme Court under Article 32.


5. A STEP BACKWARD FOR INDIA

    (ADM JABALPUR Vs. SHIVKANT SHUKLA CASE) -1976

                                                                                                                                                                   

Widely considered a violation of Fundamental Rights. In this landmark judgement, the Supreme Court declared that the rights of citizens to move the court for violation of Article 14, 21 and 22 would remain suspended during emergencies. triumph of individual liberty (Menka Gandhi Vs. UOI) 1978. 

मंगलवार, 19 जून 2018

Terrorism and role of United Nation

                                          

                                                                     Terrorism
To achieve its goal each person has the moral duty and authority, but the purity of the tools is absolutely essential for it. We can’t adopt violence as a sacred instrument in any form.
                                                                                                            -Mahatma Gandhi
“The unlawful use of violence and intimidation especially against civilians in the pursuit of political aims.”

Meaning of terrorism
Terrorism is an ideology that believes in the use of power or weapon for achieving political goals. Such an abrasive use of weaponry is often done with the view to intimidate a conquer the opposition party community or community. To fulfil your political interest; Terrorist also tries to demolish the government through legal means or through violence and establish their dominion over the rule of law. Thus “Terrorism can tell him in which some people use gross violent and humanitarian means to get their proper or inappropriate behaviour.”

Some definition
Terrorism is the use of violence, especially murder and bombing, in order to achieve political aims or to force a government to do something.
-          Collins dictionary

Terrorism consists of criminal activity, there is no single definition of terrorism since it encompasses a range of activity all designed to intimidate and instil fear. However, one well-known definition of terrorism is in the FBI policy and counterterrorism guidelines. The definition states that Terrorism is a “violent act or an act dangerous to human life in violation of the criminal law of the United State or of any states to intimidate or coerce a government, the civilian population, or any segment other of, in furtherance of a political or social objective.”
-          Study.com      

Legal definition (UK terrorism act 2000)
One important point of departure in many legal definitions of terrorism is computer hacking. The ‘interference with or disruption to an electric system’ is explicitly stated in UK terrorism law; this does not fit into the definitions above which centre on violence. The UK TERRORISM ACT 2000 defines terrorism as:
-          The use or threat of action designed to
Influence the government or an international governmental an organisation or to intimidate the public, religious, racial or ideological causes; and it involves or causes:
o   Serious violence against a person;
o   Serious damage to property;
o   A threat to a person’s life;
o   A serious risk to the health and safety of the public; or
o   Serious interference with or disruption to an electronic system.

Terrorism committed by state:-
When the state is directly or indirectly involved in acts of terrorism to fulfil the dedication objectives, then this work is called State Terrorism. The state can involve in many ways in such acts. For example,
                            With the view of conquering some of the citizen living under of the state territory acted by state authorities, or against colonialism, or against national independence. Second, the state can work to provide assistance to other states in the territories. The above kind of condemnation of terrorism is not only done by the international community, but it is also against the well-established rules of international law. Again, these are adverse to the provisions of many international conventions and announcements.[1]
It is unfortunate that is in spite of the prohibition of terrorism, the act of terrorism is being done by states to achieve their goals. This is happening because international law related to implementation and enforcement of these rules is not as potent as it should be. The result of its weakness has resulted in terrorism by the states, especially by those states, which is huge and potent. It has become a part of their system and by any government has become a form of war against the other government. If the state is a bit too serious to control terrorism, then they themselves have to recognize that the immoral and inhumane acts of terrorism are annoying and painful of mankind. Therefore, its eradication depends primarily will of the states.

Terrorism committed by Individuals and Group of Individuals:-
The situation varies from time to time, as terrorism is caused by a person or group of individuals. There can be many interests to do the act any may vary in different cases. But the objective is not important to do a consistent act in terms of international law. International law is only related to the work of which international elements exist. Therefore, the existence of the international elements makes the work of terrorism favourable to international nature.

International terrorism legal control- and its 
At present, the most common form of International Terrorism is the Aircraft Hijacking, the attack on diplomatic missions, Taking of hostage and crimes against internationally protected persons.


Modern terrorism after the second world war-   The use of terrorism to further political causes has accelerated in recent years. Modern terrorism largely came into being after the second world war with the rise of nationalist movements in the old empires of European powers.



[1][ For example, article paragraph(c) of Article  of the international military tribunal charter; Convention on the prevention and punishment of the Crimes of Genocide of 1948; International Convention of the suppression and punishment of the Crimes of Apartheid of 1973, International Covenant on Civil and Political Rights of 1966; and Charter of the united nations. Principles of International law Concerning Friendly Relations and Co-operation among States; Declaration on the Strengthening of International Security of 1970.]


These early anti-colonial movements recognized the ability of terrorism to both generates publicity for the cause and influence global policy. Bruce Hoffman, Director of the Centre of Security Studies at Georgetown University writes that, “The ability of these groups to mobilize sympathy and support outside the narrow confines of their actual “theatres of operation” thus taught a powerful lesson to similarly aggrieved people elsewhere, who now saw in terrorism an effective means of transforming hitherto local conflicts into international issues.” This development paved the way for international terrorism in the 1960s.


Terrorism after 9/11-  The attack of 11 September 2001, known as 9/11, marked a turning point in world history and the beginning of the ‘War on Terror’. The attacks are estimated to have killed 3000 people making it the deadliest terrorist incident in human history. The subsequent War on Terror led to the invasion of Afghanistan in 2001 and Iraq in 2003. The following table summarises the concentration of terrorist attacks pre- and post-9/11. It reveals that terrorism pre-9/11 was concentrated in Latin America and Asia, but shifted to the Middle East post-9/11 Peru, Chile and EI Salvador completely from the top 10. More than a quarter of all terrorist attacks between 9/11 and took place in Iraq.


Top 10 most attacked countries and territories, 1970 to September 11, 2001 and September 11, 2001, to 2008 – Peace and Conflict 2012

1970 to 9/10/2001

9/11/2001 to 2008

Rank
Country
% of All Attacks
Country
% of All Attacks
1.
Colombia
8.88
Iraq**
25.77
2.
Peru*
8.355
India
9.48
3.
El Salvador*
7.38
Afghanistan**
9.03
4.
Northern Ireland
5.13
Pakistan
7.63
5.
India
4.61
Thailand**
5.84
6.
Spain
4.14
Philippines
3.85
7.
Turkey
3.49
Russia**
3.65
8.
Chile*
3.15
Colombia
3.22
9.
Sri Lanka
3.03
Israel
2.89
10.
Philippines
2.96
Nepal*
2.55



Airline hijackings and international terrorism- The deadliest terrorist attacks in history, the 9/11 attacks on the World Trade Centre, was the result of two plane hijackings. Yet aviation terrorism has a long history and its development marks the beginning of international terrorism. On 22 July 1968, the Popular Front for the Liberation of Palestine (PFLP) hijacked Israeli El Al Flight 426 from London to Tel Aviv via Rome. They diverted the flight to Algiers where they held the Israeli hostage for several days while they negotiated the release of Arab prisoners in exchange for the hostages. Once the terms were agreed the hostages were released with no fatalities.

The success of this early hijacking made it an increasingly popular weapon of the Palestinian Liberation Organisation (PLO). In 1976 Zehdi Terzi, the first PLO representative to the United Nations stated that the “first several hijacking aroused the consciousness of the world and awakened the media and world opinion much more and more effectively than 20-25 year of pleading at the United Nation.”



Due to the horrific increase in the work of terrorism against the safety of aircraft travel, four conventions and protocol have been created to suppress the proceedings of illegal interference in air services.

These convention and protocol are following-
A.    The convention on offences and certain other acts committed on the board of aircraft of 1963 (Tokyo Convention),
B.     The convention for the suppression of unlawful seizure of aircraft of 1970 (The Hague Convention),
C.     The Convention on the prevention for the suppression of unlawful act against the safety of civil aviation of 1971 (Montreal convention of 1988).

The War on Terror- One major consequence of the rise of international terrorism, particularly Islamic extremist groups have been the global War on Terror. The War on Terror, which began in 2001, has so far seen the full-scale invasion of Iraq and Afghanistan, as well as other operations I Yemen, Pakistan and Syria.
An important question is whether the global campaign terrorism, known as the War on Terror, has made us any safer. Many commentators argue that the War on terror has had the perverse effect of making us less safe, with some going as far as claiming the War on Terror is the leading cause of terrorism. Richard Clarke, a counter-terrorism expert that worked in the US National Security Council between 1992-2003, was highly critical of the Bush administration’s counter-terrorism strategy and the decision to invade Iraq. Clarke writes. ‘Far from addressing the popular appeal of the enemy that attacked us. Bush handed that enemy precisely what it wanted and needed, proof that America was at war with Islam, that we were the new Crusaders come to occupy Muslim land.’

The Internet- The internet has become a central tool for terrorist, largely replacing print and other physical media. It has allowed the terrorist organisation to costless communicate their message and aims to the world, allowing them to recruit new member, co-ordinate global attacks and better evade surveillance. The terrorist group known as the Islamic States (also, ISIS and ISIL) are arguably the first to harness the power of the internet and social media. Their well-organised online propaganda campaign has seen them recruit thousands of foreign fighters.
The increasing use of the internet was noted by Bruce Hoffman in inside terrorism as early as 2006. He argues that “terrorist are now able to bypass traditional print and broadcast media via the internet, through inexpensive but professionally produced and edited videotapes and even their own dedicated 24/7 television and radio news stations. The consequence of these developments are far-reaching as they are still poorly understood, having already transformed the ability of terrorist to communicate without censorship or other hindrance and thereby attract new sources of recruits, funding, and support that government have found difficult, if not impossible, to counter.”



                                       


                                        -Terrorism and United Nation-
The problem of international terrorism has been under consideration of the General Assembly since 1972. The General Assembly had recommended on September 23, 1972 to include the following item on the agenda and presented it to the Sixth Committee:
"International terrorism, which makes human life endangered or eliminates the life of innocent, threatens the fundamental freedoms, measures to stop and those forms of terrorism and acts of violence, misery, frustration, complaining and disappointment And which caters to some people to sacrifice human life to influence value change, in which their life also includes Is the study of the underlying causes."[1]
In the discussions of the Sixth Committee, different views were adopted by the representatives of different states. On the recommendation of this committee, the General Assembly adopted a resolution on December 18, 1972[2] and decided to constitute the International Terrorism Ad-hoc Committee, which consists of 35 Members. The first session of the committee was held in 1973, in which no positive results could be obtained. But the committee has presented its report to the General Assembly. The General Assembly had failed to discuss the report due to lack of time, but the General Assembly adopted a resolution in 1976 and appealed to the ad hoc committee to continue its work by the mandate given to it. By this resolution, the General Assembly also invited states to submit their comments to the Secretary-General as soon as possible so that the committee could do their work smoothly. The General Assembly requested the Secretary-General to send them to the Committee for the analytical study of those comments. The meeting of the ad hoc committee was held in 1977 and it presented the report to the General Assembly without any progress. The ad hoc committee in 1979 recommended the General Assembly that the international terrorism problem is related to international cooperation should be eradicated as soon as possible. On the recommendation of the ad hoc committee, the General Assembly took a resolution on December 17, 1979[3] in which the work of terrorism was condemned and all states, in their own way and with the cooperation of other states and the United Nations, terrorism Requested to identify the underlying causes and contribute to its effective mobilization. By the proposal, the General Assembly requested all the states to not assist or do not participate in planetary struggles or terrorist activities in any other state or in such a state under their respective territories. No effective action could be taken by the United Nations to end terrorism from 1979 to 1994. In 1994, Article 4, paragraph 1 declaration[4] was accepted by the General Assembly in which international terrorism was condemned and it was said that terrorism is a crime and an unjust act. If it is done by any person and it is done by any person then it should be condemned. It was also made clear in the declaration that this provision of the declaration should be implemented by all the states.
On the measures to eradicate international terrorism, only in the year 1994, the supplementary declaration was announced in 1996 and in which all acts and behaviours of terrorism were condemned in criminal and inappropriate form, whenever and whoever causes and All states have requested to take measures at the national and international levels to eradicate international terrorism.
The ad hoc committee resumed talks on a comprehensive international treaty on terrorism in 2002. The committee started a discussion on various topics including the definition of international terrorism and its relation with the freedom struggle, possible immunity from the area of ​​the treaty, especially concerning the functioning of the armed forces and how to fight terrorism To increase the difference and effect of international aid. A format of the Convention on International Terrorism was also introduced by India, but no convergence has yet been created.
 How successful the General Assembly has been to reduce international terrorism, it is a question which is difficult to answer positively. It has been discussing this topic since 1972 without any success. The different opinions adopted by the states before the ad-hoc committee are evident that unless a state agrees to achieve international cooperation in this regard, the general recommendations will not be of any significance. Therefore, the most important step to end terrorism is to get international co-operation.






[1] UN document a/ac  6/418, pg. 5.
[2] General assembly resolution 3034 (XXVII), 18 December 1972.
[3] General assembly resolution 34/145, 17 December 1979.
[4] General assembly resolution 49/60; Declaration on Measure to Eliminate International Terrorism



                                                                 - Ashutosh Singh "CHAUHAN"
                                                                    

जिलाधिकारी (DM) और पुलिस अधीक्षक (SP) के बीच कार्यक्षेत्र और प्राधिकरण के विभिन्न पहलुओं को समझने के लिए संविधान, विधिक प्रावधान और प्रशासनि...