Online Legal Internship Opportunity (Paid) with ULegal Law Office, Chennai: Apply by Feb 15

ULegal, a law office based out of Chennai, is inviting applications for paid online internship opportunities for law students, being offered by the office.

About the Organisation

U Legal is an established lawyer’s office based out of Chennai, India led by 2 core partners having over 30 years of experience in contentious/litigation and non-contentious sectors spanning multiple disciplines, including corporate, labor, transactional, construction, family, and criminal law. The office has over 6 full-time fee earners and additional support staff and boasts pan-India and international affiliation routinely involving in diverse mandates spread across India and internationally.

Nature of Work

Internship for working on domestic and international initiatives, authoring articles, network building, and other developmental activities (5 days a week with flexible working pattern)

Eligibility

4th or 5th year (5-year law program) or 3rd year (3-year law program) or law graduates have excellent analytical and research skills coupled with Native level of English for drafting and communicating

Number of Interns Required

2 Interns

Location

Entirely Online

Stipend

Rs.7,500/- per month

Duration of Internship

For 3-6 months with the prospect of an extension

Application Procedure

Interested candidates must apply by submitting the following:

  • Cover letter (250 words),
  • CV (1 page only) along with
  • An article on “The legality and requirements for Variations under Construction law in India” of 2000 words (excluding references to be of OSCOLA style)

These are to be provided on or before 15 Feb 2021. Please note that the structure, presentation, formatting, and grammar ought to be provided importance.

Contact Information

ulegaloffice[at]gmail.com

Online Internship Opportunity at VS Legal Associates [March 2021], Mumbai: Apply Now!

VS Legal Associates, a law firm in Mumbai, founded by 2 advocates, invites applications for its online internship.

About the Firm

Founded by Adv. Mamta Mishra and Adv. Sushma, VS Legal Associates is a well-established law firm that is engaged in diversified practice areas for two decades. Services include dispute resolution, corporate M&A and commercial advisory, project finance, and infrastructure, banking, IBC, employment laws, real estate, industrial disputes, criminal litigation, commercial litigation, arbitration, and outsourcing of legal services.

The Firm is known for its expertise in pre-litigation strategies, to address potential or threatened disputes. The Firm also has extensive experience in advising promoter families on family trusts, family offices, settlements and partitions and creating governance structures for smooth succession. The Firm is known for its strength in managing critical litigation matters in any part of the country, thanks to its unparalleled network. The Firm also has an international reach and national coverage through its association with various law firms based in the respective countries.

The team at VSL, has an international pedigree, a sound appreciation of commercial issues, and a deep understanding of local realities. Values, collaboration, and practical solutions are at the heart of VSL. Every client is a long term relationship at VSL. A client at VSL, receives the full expertise of the Firm, across practice areas, thanks to the highly collaborative nature of the Firm. The Partners are trusted advisors to Founders, Family Offices, CXOs, and General Counsel, and are known to deliver quality and value through practical and innovative legal solutions that help our clients succeed.

Locations of Office

  • Cuttack, Orissa
  • Nagpur, Maharashtra
  • Ranchi, Jharkhand
  • New Delhi

The Opportunity

  • It is an online internship.
  • The interns shall be required to be active on email at all times for tasks & assignments.
  • The interns ought to be able to contribute a minimum of 6 hours a day.
  • It is not a paid internship. Stipend is discretionary, based on work.

Eligibility

  • Must know basic drafting & vetting of documents.
  • Strong research skills especially in procedural aspects & commercial laws.
  • Should have prior experience of reviewing & editing legal documents & write-ups.
  • Should have access to legal databases like Manupatra or SCC online.

Duration of Internship

March 2021; 30 days, 6 working days a week.

Vacancy

Upto 4 interns.

How to Apply

Email your CV & Cover Letter to vsl.vslegal[at]gmail.com

Call for Submissions-Etching the Path, Issue 10 [Submit by February 21st, 2021]

About Etching the Path

Etching the Path is monthly E-Magazine that aims in providing the legal information to the legal fraternity. The objective of ETP is to provide the opportunity to legal fraternity and to promote the legal research.

About the Opportunity

ETP invites the submissions for Issue 10 of its Monthly E-Magazine. The entries are open for any contemporary legal issue and can be submitted in the form of:

  1. Short Research Article: 1200-1800 words
  2. Case Commentaries: 1000-1500 words

NOTE: The above word limit is excluding the footnotes/references.

Submission Guidelines:

  1. The submission should be made only in Word File (PDFs or any other format will lead to disqualification of submission)
  2. Font:
  3. Style: Time New Roman
  4. Size: 12pts
  5. Line Spacing: 1.5
  6. Proper reference and footnotes should be used. (Bluebook 20th Edition)
  7. The submission should be unpublished, if the blog is found to be published elsewhere, then it will lead to disqualification
  8. The file should be named with the author/s name.
  9. Plagiarism should not exceed the limit of 20%

How To submit?

Submit your entries for Issue 10 via mail at content.etchingthepath@gmail.com under the Subject “Submission for Issue 10”

Last Date of Submission:

February 21st, 2021

Perks:

  1. Selected Submissions shall be published in Lawcutor’s E-magazine Etching the Path, Issue No. 10
  2. Certificate of publication will be provided to authors whose submission will be selected.

Note:

Co-authorship is allowed upto two authors

Publication Fee:

Will be applicable after selection of the submission

For Queries:

Write us at content.etchingthepath@gmail.com

MEMBERSHIP OPPORTUNITY @ETCHING THE PATH

About the Organisation

Etching the Path is a Legal E-magazine, that aims in encouraging the legal fraternity to provide their views about the legal happenings of the globe. The E-magazine objectifies in providing a platform to all the people from the legal background to contribute their thoughts.

About the Opportunity

Etching the Path has opened its membership opportunity to explore various fields of the digital world.

Eligibility

Any person from a prestigious Law University in India is eligible to apply for the opportunity

How to apply?

Submit your CV along with the Statement of Purpose (stating that what makes you different from other’s to be the part of Etching the Path) via the form.

Number of positions

Three

Tenure

Six Months

Perks

  • Certificate of Membership will be provided to the selected members.
  • Free publication of blog in Etching the Path (E-Magazine)
  • Free subscription to Etching the Path (E-Magazine)

Last Date of Application

15 February, 2021

For any queries mail us at etchingthepath@gmail.com
For more reach us at http://www.etchingthepath.com

Virtual Class by Legal Aroma


LEGAL’S AROMA is back with another VIRTUAL CLASS

ABOUT THE CLASS


It is a sincere attempt by the founder of LEGAL’S AROMA to provide virtual classes to students suffering in main subjects .i.e., The Criminal Procedure Code,1973,The Indian Penal Code,1860, The Indian Evidence Act,1872, The Civil Procedure Code,1860, Indian Contract Act, 1872, Transfer of Property Act, Constitutional law. The classes are arranged in such a manner that it can be affordable by the students easily.


We arrange the classes on the most demanded subjects by the students. So, this time the most demanded subject is THE CRIMINAL PROCEDURE CODE,1973 & THE SPECIFIC RELIEF ACT, 1963.


DETAILS OF CrPC VIRTUAL CLASS


–It is a three month program.
— There will be only 5 Classes in a week.

Registration fees is 501/- & fees for next two month is 201/- per month.{ last date of registration is 6th Feb,2021}

Early bird registration fee is 480/- & fees for next two month is 201/- per month.{ valid till 30th january,2021}


DATES:-


The classes will start from 6th feb,2021. You’ll be provided the PPTs used in classes.


WHY ONE SHOULD OPT FOR THESE CLASSES?


–You will get complete explanation of all the sections CrPC,1973.
— Each & every sections with necessary case laws.
–Every doubts will be entertained by the teacher in the classes only.


DEADLINE:-


FOR EARLY BIRD REGISTRATION 30th January,2021
Last date of registration is 6th February,2021


PAYMENT MODE


Google Pay- 8887537492


Kindly register yourself & read all the guidelines and join the WhatsApp group after filling the form :-


https://docs.google.com/forms/d/e/1FAIpQLSdS9dn48uPHG55uziiXui3Oa0q42248cwTgwXyBdhMmHTu01Q/viewform?usp=pp_url

CONTACT NO.:-


7891397233, 7023538819

Republic Day 2021 with Hon’ble VC of NLIU as Keynote Speaker; hosted by NSS Unit of NLU Assam

ABOUT NLUJAA 

NLUJAA is a premier institute of legal education set up in the year 2011 by an Act of the State Legislature. Ever since its inception, the University has endeavored towards achieving higher standards of legal education and has focused on inculcating practical argumentative skills amongst students.

DETAILS OF THE EVENT 

NSS Unit of National Law University and Judicial Academy is organizing an event on Republic Day 2021. Prof. (Dr.) V. Vijayakumar, Hon’ble Vice Chancellor of National Law Institute University, Bhopal (NLIU) is the Keynote Speaker. Details are as follows:

Date – 26th January, 2021 
Time – 11 AM 
Venue – Google Meet
Registration Form: https://forms.gle/2Hc9BuagC2gEtzAy8

Further details will be shared with registered participants. 

ELIBIGIBLITY 

OPEN TO ALL INCLUDING STUDENTS OF LAW 

LOCATION 

Virtual (Google Meet)

CONTACT INFORMATION 

For queries, please mail at nssnluassam@gmail.com 

Call for Submissions by Etching the Path: Issue9 [Submit by: January 23rd, 2021]

About Etching the Path

Etching the Path is monthly E-Magazine that aims in providing the legal information to the legal fraternity. The objective of ETP is to provide the opportunity to legal fraternity and to promote the legal research.

About the Opportunity

ETP invites the submissions for Issue 9 of its Monthly E-Magazine. The entries are open for any contemporary legal issue and can be submitted in the form of:

  1. Short Research Article: 1200-1800 words
  2. Case Commentaries: 1000-1500 words

NOTE: The above word limit is excluding the footnotes/references.

Submission Guidelines:

  1. The submission should be made only in Word File (PDFs or any other format will lead to disqualification of submission)
  2. Font:
  3. Style: Time New Roman
  4. Size: 12pts
  5. Line Spacing: 1.5
  6. Proper reference and footnotes should be used. (Bluebook 20th Edition)
  7. The submission should be unpublished, if the blog is found to be published elsewhere, then it will lead to disqualification
  8. The file should be named with the author/s name.
  9. Plagiarism should not exceed the limit of 20%

How To submit?

Submit your entries for Issue 9 via mail at etchingthepath@gmail.com under the Subject “Submission for Issue 9”

Last Date of Submission:

January 23rd, 2020

Perks:

  1. Selected Submissions shall be published in Lawcutor’s E-magazine Etching the Path, Issue No. 9
  2. Certificate of publication will be provided to authors whose submission will be selected.

Note:

Co-authorship is allowed upto two authors

Publication Fee:

Will be applicable after selection of the submission

For Queries:

Write us at etchingthepath@gmail.com

MARITAL RAPE IN INDIA: IS THERE A NEED FOR RECOGNITION?

By: Ipsita Aparajita Padhi

INTRODUCTION-

Rape itself is a grievous and inhuman offence against a woman that not only violates her dignity but also pushes her into a situation of life and death in several cases. Marriage is an institution that should be based on respect and dignity and when such circumstances arises within her own house, it decreases the wife to a mere object for sexual satisfaction. On March 13, 2020 rape law in the country was amended, yet there was no recognition of marital rape in Indian. No definite laws were provided in the amendment. Marital rape is still silent because of the social stigmas and the overpowering patriarchal society. It doesn’t only give the woman physical injury but also emotional and psychological injuries for life. The evil of marital rape remains hidden under the sanctity and belief in the institution of marriage. In this context, the belief that a wife is supposed to have it away together with her own husband no matter what is the condition of her health, if or not her consent is present or whether she is willing to have it or not is completely unacceptable to a “so-called civilised society” like in India.

MARITAL RAPE IN TODAY’S TIME-

We are definitely living in 2020 and call ourselves a modern and developed society but the irony is that India still stands one amongst the 36 countries in the world where it is still not a crime for a husband to rape a woman as long as she is his wife. According to a report made in 2006, it was estimated that marital rape is a criminal offence that is punished under the legal code in a minimum of at least 100 countries and unfortunately India is not one of them. Although marital rape is prevailing in India, it’s still hidden behind the sanctity and belief in the institution of marriage.[1] The exemption of marital rape from the legal code portrays the ownership of a woman to her husband. As given in a statement by Katherine Donnovan, “It’s immunity from the purview of the legal code is explained on the grounds that the feminine victim may be a wife. This justification is understood within the context of the dominant familial ideology and feminine sexuality which treats a wife as property and as having no sexual agency or deciding in gender within the marital contract”.[1]Mere criminalization of rape within marriage would neither be the solution nor will it put an end to this but it will surely be a vital step towards the sexual violence that has exceeded in the marriage.

MARITAL RAPE AND LAWS IN INDIA-

Despite of several amendments, law commissions and legislations we have failed to established one of the most heinous act as a criminal offence in India. It is the right of every woman to give her consent before any sexual relationship whether or not they are bind together by the institution of marriage.

As per our Constitution, every other law that is passed must be in confrontation with the principles that are highlighted in the Constitution. Now the question is how the exemption of rape within marriage fails to fulfil the principles of this conformity under the provisions of Article 14 and Article 21 of our Constitution. Although a husband’s violent or non-consensual sexual act can entitle the wife to bring charges of  assault on him, the most important thing that is required is the incorporation of liability in cases of marital rape in our legal code. The protection from violent and unwilling sexual intercourse within marriage should be provided all the women and not only to the child-brides under 15 years of age.

Whenever we talk about marital rape, factors of gender, family honour and reputation comes into play rather than the rights and individuality of the woman.

It is high time that the autonomy of a woman over her own body and as an individual be recognized without considering this fact that whether she is married or not and whether she is of 15 years or below.

Aaccording to the Indian Penal Code, the circumstances where the husband can be criminally charged for an offence of marital rape are: –

  1. When the wife is between 12 and 15 years, the offence is punishable with imprisonment upto 2 years or fine or even both.[2]
  2. When the wife is below 12 years,the offence is punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.[3]
  3. Rape of a judicially separated wife, the offence ispunishable with imprisonment upto 2 years and also fine.[4]
  4. When rape is committed with the wife of above 15 years then it is not punishable.[5]

CURRENT JUDGEMENTS ON MARITAL RAPE-

In 2018, the Gujarat tribunal in its recent judgement of Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, observed that marriage doesn’t give the right to the husbands to forcibly have a sexual relationship with their wives and that the wives are not mere objects of their sexual gratification. The husband doesn’t own the body of his wife just because they are married. In this case, the wife accused the husband stating that on several occasions sexual activity was forced on her without her consent. It was argued on behalf of the husband that marital rape is still not recognised and hence it is not a criminal offence. At most prima facia a case could be made under Section 498A of IPC i.e. hhusband or relative of husband of a woman subjecting her to cruelty. Further the counsel on behalf of the wife argued that this case was of marital rape as the sexual intercourse was against the willingness of the wife and that the consent was obtained by the husband by force both physically and sexually. The Bench stated that, “It is high time to discharge the notion of considering implied consent in marriage. The law must protect the bodily dignity of a woman no matter if she is married or not”.[6]

RAPE LAWS WITH NO-DISCRIMINATION-

Section 375 of IPC itself provides discrimination by categorising women into married and unmarried, further protecting the dignity of unmarried woman but failing to recognise that of the married ones. It is completely absurd that one part of the law protects the women from forcible sexual act while other part simply stays silent as long as the woman is married. This discrimination of categorising woman is a violation of Article 14 of the Constitution. Through various judgements and legislations the Supreme Court has made clear that the sanctity of a woman and her willingness to have sexual intercourse comes under Article 21 of the Constitution. But section 375 exception 2 stands against this and violates the basic human rights and also it contradicts with the provisions present in the Protection of girls from Vviolence Act, 2005.

JUDICIAL STAND

Looking at the history of marital rape, comes the case of Queen Empress vs. HareeMythee.[7] Here, the husband is charged in four different forms for causing death of his wife by several bodily injuries. The Court stated that in the case of a married woman, the rape laws won’t be applied within the husband and his wife. In another case, Emperor vs. Shahu Mehrab[8] the husband was charged under section 304A of Indian Penal Code for the cause of death of his minor wife by negligent sexual activity with her.

The right to privacy which is every person’s right regardless of gender, is violated by non-consensual sexual intercourse. The State fails to recognize this. The judiciary seems to neglect the part that rape happen within the institution of marriage.

 Problem lies within the thinking of the society, that marriage is sacrosanct and that the wife should worship her husband. It is very much shocking to see how the law is ignoring such violation of the fundamental right of freedom of a spouse.

CONCLUSION-

Marital rape should be criminalized in India through the private rights approach against the violation of the dignity of the women. There are several women associations trying to aware the public regarding this and also to pass the legislation on sexual violence. However till now rape within marriage is not completely criminalized in India and it will continue likewise unless the legislators and the society acknowledge the individual rights of every woman even though she is bind by the institution of marriage. If this practice continues without any proper laws then the women of the country will be subjected to mere sexual objects and will be continued being targeted as victim both by their husband and the society. There is a serious need to acknowledge a wife as an individual rather than the traditional concept of considering her as a mere chattel and give her the respect and dignity that she deserves as any other individual.


[1]Pallavi Prasad, Why It’s Still Legal For Indian Men to Rape Their Wives, THE SWADDLE( Dec. 10, 2020, 11:00AM), https://theswaddle.com/marital-rape-inda-decriminalized-crime/.

[2]Donnovan, Katherine, Family Law Matters, Pluto Press, 1993.

[3]Indian Penal Code (45 of 1860), Section 376(1).

[4]Indian Penal Code, Section 376AB.

[5]Indian Penal Code, Section 376A.

[6]Indian Penal Code, Exception to Section 375.

[7]Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, 2018 Guj 732

[8]Queen Empress vs. Haree Mythee(1891) ILR 18 Cal.49.

[9]Emperor vs. Shahu Mehrab0 [AIR 1917 Sind 42].


INTRODUCTION TO NEGLIGENCE AND PROFESSIONAL NEGLIGENCE

By: Jhanvi Jain

Negligence is a general term means act of being careless. It was derived from the Latin word negligent which means ‘failing to pick up’. In legal sense the term negligence signifies the failure to exercise a certain amount of care needed to be exercised which needed to be exercised in a particular condition. Negligence can be properly defined as a breach of legal duty to take care which results in damage, which is not desired by the defendant to the plaintiff. The essentials of negligence are as follows:-

  1.   Duty to take care
  2.   Duty to whom
  3.   Duty must be towards plaintiff
  4.   Breach of duty to take care

When the legal duty is breached with, negligence takes place. Here, we are going to assess the dimensions of negligence

  1. contributory negligence – Where the plaintiff fails to exercise reasonable care for their safety.
  2. professional negligence – It can be defined as a breach of duty between the professional and his clients.

Negligence has not been explained in any precise definition. It was vaguely defined in a case the apex court named[1] Jacob Mathew v. State of Punjab, which is presented below;

Negligence can be defined as a breach of duty which is caused by omissions to do something which a prudent man guided by considerations which are ordinarily regulated the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do.

This definition involves 3 elements of negligence: –

  1. A legal duty to exercise due care on the part of the party complained of toward party complaining the former’s conduct within the scope of duty.
  2. Breach of the duty mentioned
  3. consequential damage

In this article we are about to discuss about the dimensions of negligence;-

The broad dimensions of negligence can be conveyed as follows-

1 Contributory negligence

2 professional negligence.

Let us first discuss contributory negligence –

Contributory negligence is the plaintiff’s failure to exercise reasonable care for their safety. can be understood as an act by which the plaintiff to satisfy his own want of care, becomes a part of the wrongful act committed the defendant.

An accident could be called a part of contributory negligence if

‘The proximate cause of the accident is the act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party (the plaintiff) has conjoined with other party’s negligence.’ [2]

Contributory negligence as an independent ground took shape in the 18th century and early 19th century. [3]The term contributory negligence originated in the case Butterfield v. Forrester in 1809. In Butterfield v. Forrester there was a man who was riding a horse which was collided with a pole standing on a public road, which resulted in the man being thrown off the horse and injured. The man was denied claims for damages as the judge found out that the horse was ridden at an extremely high speed without taken ordinary care. The judge declared that the damages were denied as he was found to ride a horse at an extreme speed, while not taking ordinary care. According to the judge before whom the case was performed – An injured party will not be able to recover loss suffered by him if he could have avoided the accident or injury by exercising ‘ordinary caution’.

Contributory negligence is applicable totally to the conduct of the plaintiff. In contributory negligence the defendant has to prove that the plaintiff had failed to take reasonable care for his safety and was contributing to a the harm ultimately suffered by the plaintiff. This a defence where the defendant can prove that the plaintiff failed to take reasonable care of his safety and was a contributor to the ultimate harm suffered by the plaintiff. In Madhya Pradesh High Court in Vidya Devi v. M.P. Road Transport Corporation In that case, a motor cyclist who was driving negligently, not taking the care prescribed crashed against a bus and died in an accident. The bus driver was not found to be negligent as he was taking precautions to avoid collisions. The proportion of the blame was 2:1. Therefore, the plaintiff will only be entitled to 1/3rd of the damages, he would have been entitled to if he wasn’t at fault.

Now let us discuss about the other dimension called the professional negligence

In such kind of negligence there is always a professional involved for example lawyers, doctors, architects etc. The person held liable here should be performing some special skills. The people who are performing such tasks are said to possess some special skills undertaken to perform some special tasks.

In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors.,1 a mop was left inside a female patient’s abdomen during an operation. A disease called Peritonitis was developed leading to a second surgery being performed, but she could not survive it. Liability for negligence fell upon the surgeon because of the absence of reasonable explanations for the mop being left inside the woman’s abdomen. Doctrine of Res Ipsa Loquitur was applicable here. In this the supreme court established that negligence cannot be attached to a doctor if he is performing his duties in his best abilities, with proper care and caution.

[4]In an apex court judgement of Jacob Mathew V State of Punjab

A reasonable man entering into a profession is required to have a particular level of learning to be called a professional in the field selected. It impliedly assures the person dealing with him that the skill possessed by him shall be exercised and exercised with reasonable care and caution The client is not made aware of the result. For example, A lawyer does not tell his clients that the client will definitely win the case in each and every circumstances. A doctor does not assure a patient of full recovery in all cases and a surgeon cannot and does not guarantee that the result of the surgery would without any doubt be beneficial, much less to the extent of 100% for the person operated on. The only assurance which can be given in this case is that the person entrusted with the task has the requisite skills needed in the profession and while the task of practising the skills acquired is given to him he will do it with reasonable competence. In Jacob Mathew v State of Punjab AIR 2005 SC 3180,one late Jiwan Lal Sharma was admitted in the CMC Hospital, Ludhiana on 15-2-1995. On 22-2-1995, he felt difficulty in breathing. There being no oxygen cylinder available for 5 to 7 minutes, he died. The doctors also turned up after 20 to 25 minutes, when contacted by the nurse. The Court, however, held it a case of non-availability of the oxygen cylinder and not of any negligence on the part of the accused doctors. The Court, thus, held that the hospital might be held liable in civil law. We can see that in this case the doctor was late which delayed treatment and an oxygen cylinder which is vital in hospitals was not available. Here, even though the required skills were possessed by the professional, the problem was him not performing it with the possessed skills.

A professional can only be held liable for negligence in only two cases: –

1. He did not possess the required skills needed to be possessed by a professional.

2. He did not exercise the possessed skills, with reasonable competence.

The criteria for being applied for judging, whether the person was negligent or not was to be bases that a person was exercising ordinary competence as it was not necessary for every person to exercise the highest level of expertise in the branch in which he practices. To establish liability on the basis of deviation from normal practice , [5]there are 3 criterias to be fulfilled : –

  1. There is a usual and normal practice
  2. The defendant has not adopted it
  3. That the course is adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care

The above tests have been stated as a determinative in of negligence in profession by Charlesworth and Percy in their work on negligence.

In Poonam Verma v. Ashwin Patel and Ors., a doctor registered as medical practitioner and entitled to practice in Homeopathy only, prescribed an allopathic medicine to the patient. As a result the patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband. The doctor who was entitled to practice in homoeopathy only, was held under a statutory duty not to enter the field of any other system of medicine. Since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct held amounted to negligence per se actionable in civil law[6]

CONCLUSION

Negligence is a tort evolving from the Britain law and it was adopted by the Indian law as an important tort. Negligence is of two types- civil and criminal here, we discussed about the civil part of this tort. Civil negligence is when a person ignores to take ordinary care which a reasonable person would have taken. To prove that the act performed was negligent all the essentials mentioned above has to be proved. Contributory Negligence is a defence which is available to the defendants preventing plaintiff from getting compensation from a suit filed by him. It is when both the plaintiff and the defendant are at fault. In this case the burden of proof always lies on the defendant. In contributory negligence the defendant has to prove that the plaintiff had failed to take reasonable care for his safety and was contributing to the harm ultimately suffered by the plaintiff.


[1] Jacob Mathew v State of Punjab AIR 2005 SC 3180.

[2]Municipal Corporation of Great Bombay v Lakshman Iyer AIR 2003 SC 4182

[3] EMANUEL G.D VAN DONGEN & HENRIETTE P. VERDAM, THE DEVELOPMENT OF THE CONCEPT OF CONTRIBUTORY NEGLIGENCE IN ENGLISH COMMON LAW pg. 64.

[4] Jacob Mathew v State of Punjab AIR 2005 SC 3180.

[5] R.K. BHANGIA, THE LAW OF TORTS, CHAPTER 11, pg. 324.

[6]R.K. BHANGIA, THE LAW OF TORTS, CHAPTER 11, pg. 326

SABARIMALA TEMPLE CASE

By: Kriti Agrawal

Introduction: –

Case Name:  Indian Young Lawyers Association & Ors vs The State of Kerala & Ors.

Citation:  Writ Petition (Civil) No 373 of 2006

Parties name:  Indian Young Lawyers Association (petitioner)

Travancore Devaswom Board (respondent)

State of Kerala (respondent)

Pandalam Royal Family (respondent)

Chief Thanthri (respondent)

Bench: Deepak Mishra, A.N. Khanwilkar, Rohintan Nariman, Indu Malhotra, D.Y.   Chandrachud

Sabarimala Temple, dedicated to Lord Ayyappa is an ancient temple. The temple is set over one of the eighteen mountains scatter over the Western Ghats known as Sannidhanam, situated in the district of Pathanamthitta in Kerala. The devotees of Lord Ayyappa believe that the strengths arise from his austerity, in particular him being celibate. Celibacy is a method that is accepted by travellers before and during the journey. Those who believe in Lord Ayyappa and request prayers are anticipated to pursue a strict ‘Vratham’ or a promise over 41 days which lays down a set of methods.

The practice of restricting and banning the women from entering and participating in these 41 days of penance ‘vratham’ has been examined by the Ayyapan community since period immemorial as contended by the Thantri of the temple. The God at Sabarimala takes the aspect of a Naishtika Brahmachary along with examining a penance, the supporters are presumed to wear black clothes and cut all family relations while examining the ‘vratham’. It is contended that a variation from the celibacy and abstinence examined by the supporters would be affected by the existence of women. Women have not been able to be a part of this journey because of assumptions regarding their physiological characteristics, deeming them weak and unfit for the arduous journey. According to Hindu beliefs women are considered to be impure while menstruating. Thus, the temple councils have placed regulations on the entry of women between the ages 10 and 50 to protect the temple’s sanctity.

In 1990, S Mahendran filed a plea in Kerala High Court pursuing a ban on women’s exclusion of entry to the temple. But Kerala High Court ratified the age-old constraint on women of a particular age-group entering the temple. On August 4, 2006, the Indian Young Lawyers Association documented a petition in the Supreme Court striving to assure entry of female supporters between the age group of 10 to 50 at the Lord Ayyappa Temple at Sabarimala. 

On September 28th, 2018, the Supreme Court enacted a decision that enables entry of women in Sabarimala temple. This decision dealt with various issues before coming to this decision; the article will further deal with the issues brought up by the petitioners and examined in the case.

Issues for which petitioner contended: –

Ban on women based on physical factors violates Article 14 which deals with right to equality, Article 15 which prohibits discrimination, Article 17which deals with abolition of untouchability and any such procedure which is actually violative of other noted rights cannot be conserved by “morality” under Article 25.

Does practice of not including women comprise an “essential religious practise” under Article 25 and can a religious organization claim that it arrives under the umbrella of Right to govern its conspiracies in the courses of religion?

Whether Ayyappa Temple has a denominational personality and, if so, is it acceptable on the part of a ‘religious denomination’ governed by a statutory committee and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to satisfy in such exercises infringing constitutional principles entrenched in Articles 14, 15(3), 39(a) and 51-A(e)?

Does Rule 3 of the Kerala Hindu Places of Public Worship Rules authorize ‘religious denomination’ to prohibit entry of women between the ages of 10 to 50 years? Or if it accomplishes then is it an infringement of Article 14 and 15(1) of the Constitution by restricting entry of women based on sex?

Petitioners Arguments: –

It was argued on behalf of petitioners that rather of religious arguments the prohibition was based more on the ground of specific practical physiological extents like the inability of women to ratify a problematic way of forests and mountains over 41 days arduous journey. These justifications are unusual.

It was also contended that contemplating women impure because they menstruate and they can’t be touched at that time is racism against them on the ground of their sex and practising of untouchability which is precisely illegal under our Fundamental Rights.

Also, Article 25 gives women the freedom to practice their religion too.

Regulation of women because of the celibate personality of the Lord Ayappa is demeaning to the women.

The rule 3 laid down by the Kerala Hindu Places of Public Worship Rules is violative of Fundamental Rights.

Respondent’s argument: –

These regulations can’t be questioned as they are on the ground of religion and traditions. It was contended that Lord Ayappa is a celibate and should be treated as an individual. Therefore, as a person, Lord Ayappa’s Right to Privacy under Article 21 should be conserved. The entry of women between 10-50 years of age,menstruating age, is the indifference with the celibate essence of the Lord Ayappa. It was also contended that it is not physiologically feasible for women to seek 41-day penance. The ban stands as the very core of the assumption and forms an integral part of the religion. It was also argued that Article 15(2) does not pertain to religious institutions.

Judgment

The Court, by considering and contemplating over every significant factor, provided a judgment in favour of the petitioner in a 4:1 majority.

Arguing views of Justice Indu Malhotra:

Justice Indu Malhotra was the only woman judge who had a contrary belief on the bench. She urged that Article 25 guarantees the right to freely profess, practise and produce their faith to each individual, by the principles of their religion’ and the exclusionary practises were in unity with the tenets of the ‘Ayappan’ community. Hence, stating that it is not violative of Article 25. Further, she added that the Ayappan community is a distinct religious denomination which is conserved under Article 26 to govern its spiritual affairs and this matter is a blended question of both the fact and law which should be agreed before a competent court of civil jurisdiction. Justice Malhotra opined that courts do not have the power to interfere in private religious matters and unless very terrible religious processes should not be glimpsed with rationality. Upholding that the Rule 3(b) of the 1965 Rules is not ultra vires to Section 3 of the 1965 Act but just an abnormality for the advantage of the spiritual denomination. She asserted that Judicial survey of religious practices should not be put up with the care of by the Court as it is outside the ambit of the Court to justify belief.

Sabarimala 2019 review Petition

In 2018, when SC stated and upheld that any woman of any age is enabled to enter the Sabarimala temple. The decision confused a more extensive section of the society as it tampers with their spiritual assumption and beliefs. So, it led to violence among the male section and religiously staunch people who filed for survey petitions in the Court.

The Petition was documented against the 2018 judgement of the Supreme Court, and the main question of assertion here was that does Supreme Court’s scope is wide enough to infer and interfere in the matters of religion and faith. Petitioners argued that the worship in the temple is based on the celibate character of God. Constitutional belief is morally a subjective test, and it shouldn’t be used in the understanding of the faith. It influences their Right to practice their religion on their own. The theory of untouchability which was carried in the 2018 decision, was said to be false on the grounds that this concept is more about the context without due consideration and deliberation. The Court thus agreed to keep the journal requests on hold and also waited with the 2018 order which awarded women the Right to enter the temple until a larger bench agrees on this issue. Still, there are other similar questions in line which also gets influenced by this decision. So, the best is to not transmit any decision on it as of now. The Court also indicated dissatisfaction in the way people responded and not greeted the decision. People, instead of following it, confused and obliterated it to the way it weakened the importance of the Honourable Supreme Court. The Court on this opined that it is the Right furnished to the residents of the country that if they are not convinced with the decision of the Court, they can file review. Still, meanwhile every resident has to follow and accept whatever the Court lays down the rules as our Constitution establishes supreme Court to conserve and protect itself. It is the duty of respect its importance.

Conclusion: –

This decision came as a landmark judgment, particularly during a time when the country is religiously allocated. India is a country where belief plays a vital role in shaping the society. The decision is an advanced one and set an illustration that the orthodoxy, superstition, and patriarchy would never weaken the spirit of constitutional belief. Though while glancing into the petitions court has decided to deem different consequences interested to it in the future, but it again approved the same belief. It did not take away women’s rights which were given to them in 2018 ruling. The Supreme Court has thus shown that the primary importance of equivalence and belief is above any other belief and will be ratified always and forever above all.