PIL filed in the Delhi High Court to declare Gender Specific Sections of IPC 375 & IPC 376 and The Criminal law(Amendment) Act 2013 as null, void and unconstitutional

A PIL is filed in the Delhi High Court by Mr.SANJJIIV KKUMAAR to declare Gender Specific Sections of IPC 375 & IPC 376 and  The Criminal law(Amendment) Act 2013 as null, void and unconstitutional

A Bench of Acting Chief Justice Gita Mortal and Justice C Hari Shankar heard the petition before seeking the response of the centre in the case and issued notice to the Central Government for giving it's answer.

The Petitioner argued that:- 

' If a male alleges that female raped him, he is not seen as a “Real Man” because the stereotypical patriarchal assumption of “men are superior and stronger to women” comes into the picture. The same “male domination” and the notion of patriarchy is, in fact, the very reason males do not come out of the closet to report rapes. Forman (1982) finds that about 90-95% of men who are raped do not report it. Therefore, men too like females are afraid of reporting rapes. Their masculinity is doubted upon; he is mocked and harassed by the society because he got “raped by female”. It is seen as his fault and weakness."

The Petitioner also tried to draw the attention of the Court that :- 

"out of the 96 countries studied, 63 were found to have rape or sexual assault laws written in gender-neutral language, 27 had 
rape laws that were completely gender-specific (i.e., the perpetrator was defined as male and the victim as female) and 6 had partly gender-neutral laws (the perpetrator was defined as male and the victims could  be male or female) "

The Petitioner argued about the   THE TYRANNY OF 12 O’CLOCK SYSTEM or  THE MIDNIGHT ADULT SYSTEM :-

" the genesis of this writ petition goes  back to the unfortunate, heartbreaking and gruesome incident of Ryan International School where a devilish wicked man tried to sexually disrobe the bodily integrity of a just 7 year old innocent brave child and when unable to do so brutally murdered 
a young child 

Abhimanyus of India’s are protected from Sexual Assault (POSCO Act) till they are 17 Years 364 Days 23 Hours 59 Minutes and 59 Seconds old.

The Abhimanyus, since childhood are being told that they are protected, just like their sisters, of any sort of Sexual Assault but the 
moment clock ticks 12:00, and they turns 18, the Abhimanyu of India are being labeled as Male Adults and are robbed of their rights that they were having just one second before, for the only reason that they are not child anymore but now they are male."


The Petitioner contended the following grounds for declaring rape laws gender neutral:- 

" 1. Hon’ble Supreme Court in Right to Privacy ruling has used the word “consent” 38 times. Consent and bodily integrity of each citizen are now fundamental rights and the cornerstone of the Privacy Ruling. Privacy now being a Fundamental Right has changed the contour and validity of some existing Acts and Cr.P.C/IPC and made them(or some sections of them) Null, Void and Unconstitutional.

 2. The gender specific IPC 375 and IPC 375, read with Consent, Bodily Integrity(Article 21 Right to Privacy) of every citizen, doesn’t confer to Article 14 of Constitution requirement of “everyone is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land” and “equal protection of all alike in the same situation and under like circumstances” vis-à-vis treatment of Male and thus fails miserably/doesn’t stand Article 14 of Constitution test.

 3. DOCTRINE OF PARI MATERIA says that “It is settled law that two statutes are said to be in pari materia with each other when they deal with the same subject-matter. The rationale behind this rule is based on the interpretative assumption that words employed in legislation are used in an 
identical sense”. Privacy ruling has made gender specific present IPC 375 and IPC 376 null, void and unconstitutional as explained above and using Doctrine of Pari Materia, present IPC can be replaced by Gender Neutral IPC 375 and IPC 376 of Ordinance 2013.

4.  In “Ordinance 2013”, IPC 375 and 376 were Gender Neutral with respect to Victim as well as Perpetrator of Crime and are truly Progressive and Forward Thinking in nature and they were law of the land at a point of time(For 58 Days) "

The Petitioner contended the following grounds for declaring Criminal Amendment Act 2013 Unconstitutional:- 

 " 1. To keep happy the vested interest people and organization, Central Govt., through Parliament, choose to implement Gender Specific “Act 2013”, which was Criminal Amendment and inspite of law of the land prohibiting it, Parliament applied it Retrospectively[Ex Post Facto] from 3rdFebruary 2013[ “Act 2013” Chapter I 1(2) says “It shall be deemed to have come into force on the 3rd day of February, 2013”] which is barred by Article 20(1) Of Constitution of Indian read with Article 21 and 14 of Constitution 

2. “Ordinance 2013” which was law of the land from 3rd February 2013 to 1st April 2013, that is 58 days, were Gender Neutral , namely Section 375 , 376, 354A, 354C, 354D of IPC, and applying “Act 2013”, which was Gender Specific pertaining to the above mentioned IPC Acts, retrospectively from 3rd February 2013, Govt effectively ordered to throw away All Gender Neutral Complaints/Cases which could have been 
converted into FIRs or filed FIRs during the “Ordinance 2013” period, thereby violating Article 21 of Constitution of India as No Gender Neutral Cases could be   filed(Petitioner never heard any Sexual Assault Case of Man in any New papers which means that Closure Report were filed in those cases or police/court never registered it or such complaint cases were 
dismissed under Section 203 of CrPC) and Citizens were deprived of their Fundamental Rights pertaining to above mentioned IPCs

3. IPC Section376 Clause 2, contains “shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, “which shall mean imprisonment for the remainder of that person’s natural life”, and shall also be liable to fine.Please notice the term “which shall mean imprisonment for the remainder of that person’s natural life”. This was not present in “Ordinance 2013”Article 20(1) of Constitution of India says that a person cannot “be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”

4.  For IPC 375 offence committed during those 58 days starting from 3rd February 2013 to 1st April 2013 couldn’t have been subjected to “remainder of that persons natural life” sentence but applying “Act 2013” Retrospectively or Ex Post Facto means that “person would be subjected  to harsher punishment”. Hence “Act 2013” being ultra vires Article 21(1) and hence would be deemed Null, Void and Unconstitutional by Article 13(2) of 
Constitution of India.

5. “Act 2013” also changes Section 114A of Indian Evidence Act,  thereby making punishment easier under Section 376 of IPC. Hence ultra vires Article 20(1) of Constitution of India and hence will deem to be Void, Null, Unconstitutional by Article 13(2) of Constitution of India."



The Petitioner also submitted before the Court some incidents where "MEN RAPED(FORCED TO PENETRATE) BY WOMEN" :-

"1. A news publish in SUN newspaper UK titled “Three women ‘raped man, 23, for THREE days’ after kidnapping man in a taxi and force-feeding him energy drinks in South Africa”.

2. News published in Metro UK News, titled Woman charged with raping male taxi driver at knifepoint

3. News published in Mirror UK, titled Shia LaBeouf claims he was RAPED by a woman on Valentine's Day during #IAMSORRY art 
show,  shows that Famous Hollywood Actor Shia LaBeouf who worked in Block Buster movie like Transformers, Fury, Lawless can also be subject to Male Rape by Female. 

4. News published in Slate Magazine, titled “A new study reveals that men are sexually assaulted almost as often as women” citing National CrimeVictimization Survey (NCVS), from The Bureau of Justice Statistics' (BJS), USA is an eye opener. "


Based on the above the Petitioner prayed that the Court issue directions:-

"1. To declare Gender Specific Sections of IPC 375 & IPC 376 null, void and.unconstitutional as per Article 13(2) of Indian Constitution as in current form IPC 375 & 376 are ultra-vires Articles 21 and 14 of Constitution of India. 

2.  To replace the IPC 375 and IPC 375 with Gender Neutral IPC 375 and IPC 376 of The Criminal law(amendment) Ordinance 2013 dated 3nd February 2013, No 3 of 2013, published in The Gazette of India. 

 3. To declare The Criminal law(Amendment) Act 2013 dated 2nd April 2013, No 13 of 2013, published in The Gazette of India (Extraordinary), null, void and unconstitutional as per Article 13(2) of Constitution of India"

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Five Difference between Protectorate and Vassal State

Difference between Protectorate and Vassal State

Protectorate State :- When one State surrender itself by an agreement embodied in a treaty, the administration of certain important international affairs, to the protection of another state,a kind of relationship is established between two states known as Protectorate.

 According to Starke, Although not completely independent, a Protectorate State may enjoy a sufficient measure of sovereignty to claim jurisdictional immunity in the territory of another state, it may also still remain a State under international law.

Thus, Protectorate State are not sovereign States.However they are prima facie independent and the possessor of all rights which they have not surrendered. A Protectorate State can remain a State under international law and may possess some rights and immunities.


Vassal State :- A State which is under the suzerainty of another state is called a Vassal State. Its  independence is so restricted that It has no importance under international law.
According to Starke, "Vassal State is one which is completely under the suzerainty of another state. Internationally it's independence is so restricted as scarcely exist at all.
In it's foreign affairs the Vassal State possess no power and all its foreign policies are governed by the state of which he is a Vassal State.

Five Difference between Protectorate and Vassal State

Following are the Five differences between a Protectorate and Vassal State:

1. A Protectorate State, through a treaty entrusts it's matter of security, defense and external affairs to another state.A Vassal State is autonomous in its internal affairs, but is completely dependent upon other State in external affairs.

2. A Protectorate State may become a member of international community. A Vassal State is not regarded a member of the international community.

3. If any war is declared by the protecting State against any country, then the Protectorate State is not necessarily involved in that war. Thus, the treaty entered into by the protecting State is not binding upon the Protectorate State.
In the case of a Vassal State, it is not bound by the treaty entered into by the protecting State.

4. A Protectorate State is not completely sovereign and in fact its sovereignty is taken by the country of which it becomes a Protectorate State.
A Vassal State is a semi-sovereign State.

5. Protectorate State may remain a State.
Vassal State is completely under the suzerainty of another state and has no separate and independent existence under international law.

References:-
S.K.Kapoor, International Law
H.O.Agarwal, International Law

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Difference between Interpretation and construction

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SC dismissed the Centre's Appeal for Treating Children Born Out of Void Marriages as Illegitimate

The Supreme Court of India on September 18, 2017 dismissed the Centre’s Special leave petition ( Union of India & Ors vs M.Karumbayee  Diary No(s). 27352/2017)   against a judgment of the Madras High Court, which had  held that children born out of void marriages are legitimate.

The present case relates to the appointment on compassionate grounds in Southern Railway, of  a deceased employee’s son, born to his second wife, as he did not have any issue from his first wife. But the claim was rejected by the concerned railway board on the ground that the children born to second wife were not recognized and the second wife was not entitled to any benefits as per the instructions of the Railway Board. According to the Railway Board's Circular dated 02.01.1992 appointment on compassionate ground cannot be granted to the children born to second wife.

Central Administrative Tribunal  Madras Bench in O.A.No.866 of 2013 dated 13.07.2015  allowed the Original Application on the basis of the Judgment rendered by the Division Bench of Kolkatta High Court in the case of Smt.Namita Goldar and another vs Union of India and others which followed the decision of the The Supreme Court in the case of Rameshwari Devi vs State of Bihar & Ors. reported in 2000(2) SCC 431 which specifically held that the second marriage during the subsistence of first marriage may be illegal but the children born out of such second marriage are legitimate and are also entitled to the estate of the father.

In view of the decision of the Apex Court in the case of Rameshwari Devi the children of the second wife cannot be treated as illegitimate and referring to Section 16 of the Hindu Marriage Act specifically held that children of a void marriage are legitimate.

 In view of the law as settled by the Supreme Court no distinction can be made amongst the children of the first and second wife of a deceased employee. In the present case however first wife was issueless and died shortly after the death of the employee concerned.

In the aforesaid circumstances the aforesaid circular issued by the Railway Board on 2nd January 1992 stands quashed to the extent it prevents the children of the second wife from being considered for appointments on compassionate ground.

On a writ petition filed by the Centre against the order of the Learned Tribunal The Division Bench of the Madras High Court held that

" We have given our anxious consideration to the materials placed on record and the pleadings of the parties. We do not find any infirmity in the order passed by the learned Tribunal as the same was on the basis of the Division Bench judgment of the Kolkatta High Court which had followed the decision of the Hon'ble Supreme Court. We also do not have any quarrel with the proposition of law laid down by the Kolkatta High Court as the children born out of second marriage cannot be treated as illegitimate in the eye of law. In such view of the matter the Writ Petition is dismissed as devoid of merits and substance. No costs."

Against the judgement passed by the Division Bench of Madras High Court the Centre filed special leave petition in the Supreme Court which was held dismissed by the Supreme Court.

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Rule of Harmonious construction- Meaning, Nature, Scope and principles with illustrative cases

                                                         
Harmonious Construction

Meaning :- It is a well settled rule of construction that the provision of a statute should be so construed as to accord with the object of the enactment. The object of harmonious construction is avowedly to avoid a conflict between two enacting provision of the statute as far as possible and to construe the provision in a way so that they harmonize.

The rule has been stated by Supreme Court in Venkataraman Devaru  vs State of Madras(AIR 1958 SC 255) in the following words - the rule is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted, that if possible effect should be given to both. This is what is known as the rule of harmonious construction.

Principles of the rule :-  According to this rule,a statute should be read as a whole and one provision of the Act should be construed with reference to other provision in the same Act so as to make a consistent enactment of the whole statute. Such an Interpretation in avoiding inconsistency or repugnancy either within a section and other parts of the statute.

The main principles of the rule as stated by the Supreme Court in CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, are-

1. The Court must avoid a head on clash of seemingly contradictory provision and they must construe the contradictory provision so as to harmonize them.
2. The provision of one section cannot be used to defeat the provision contained in another,unless the Court, despite all it's effort, is unable to find a way to reconcile there differences.
3. When It is impossible to completely reconcile the difference in contradictory provisions, the Court must interpret them in such a way so that effect is given to both the provision as much as possible.
4. Court must also keep in mind that Interpretation that reduces one provision to a useless number or dead is not harmonious construction.
5. To harmonize is not to destroy any Statutory provision or to render it fruitless.

But where it is not possible to give effect to both the conflicting provision harmoniously, then the head on collision should be avoided by holding that-
1. Apparently conflicting provisions deal with separate situations;
2. One conflicting provision merely provides for an exception of general rule contained in other provision.

A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one so as to exclude the more specific. This principle is expressed in the maxims -
1. Generalia specialibus non derogant - It means general things do not derogate from special things.
2. Generalibus specialia derogant- It means special things derogate from general things

Illustrative cases :-  M.S.M. Sharma vs Krishna Sinha (AIR 1959 SC 395 ) the petitioner an editor of a newspaper was asked to show cause as to why he should not be punished for a breach of privilege of the House guaranteed by Article 194(3) of the Constitution of India for publishing a speech made in the State Legislative Assembly without expunging certain remarks as directed by the Speaker.
In a petition under Article 32 of the Constitution he argued that the proposed action against him would be contrary to the freedom of speech and expression guaranteed by Article 19 (1)(a) of the Constitution.
The Supreme Court held that,expediency demanded that Articles 19(1)(a) and 194(3) had to be harmoniously interpreted. To give effect to both the these provisions, it was necessary to hold that fundamental right of speech and expression under Article 19(1)(a) was subject to the privileges of Houses guaranteed by Article 194(3). The was therefore dismissed.

In Sirsilk Ltd. vs Government of Andhra Pradesh ( AIR 1964 SC 160) Section 17(1), 17(2) and 18(1) of the Industrial Disputes Act 1947 were interpreted by application of rule of harmonious construction

Section 17(1) states, ‘Every award shall
within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit”.
The use of the word ‘shall’, the court observed, is a pointer to Section 17(1) being mandatory in nature.

Section 17(2) states, ‘Award published under sub-section (1) shall be final and shall not be called in question by any court in any manner whatsoever.

Section 18 (1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
Now the question was that where a settlement has been arrived at, after receipt of award of the labour tribunal by the government but before it's publication, whether government was still required to publish the award under section 17(1).

It was held that only way of resolving the conflict between the two provisions was to hold that a settlement becomes effective from the date of singing and by settlement, Industrial dispute comes to an end and therefore award becomes infructuous and hence government cannot publish the award.

Though the Supreme Court maintained that Section 17 (1) is mandatory, and ordinarily the government has to publish an award sent to it by the tribunal, in special circumstances of the case and with a view to avoid a conflict between a settlement binding under Section 18 (1) and an award binding under Section 18 (3) on publication, it held that the only solution is to withhold
the publication of the award as this would not in any way affect the mandatory provision of Section 17 of the Industrial Disputes Act, 1947.

Conclusion :- Thus to sum up, it may be said that the object of harmonious construction is to effectuate the intention of the legislature. It is therefore essential for the Court to interpret the words, phrases and two provisions of a statute apparently conflicting with each other in such a manner as to accord with the intention of the legislature.

References:-
D.N.Mathur, Interpretation of Statutes
T.Bhattachariya, Interpretation of Statutes
K.P. Chakraborty, Interpretation of Statutes

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PIL filed in Supreme Court Seeking abolition of death sentence by hanging and replace it with intravenous lethal injection, shooting, electrocution or gas chamber in which death is just a matter of minutes

PIL filed in Supreme Court Seeking abolition of death sentence by hanging and replace it with intravenous lethal injection, shooting, electrocution or gas chamber in which death is just a matter of minutes

On 12/09/2017 Rishi Malhotra a Supreme Court advocate filed a PIL in the Supreme Court for abolishing the present practice of executing a death sentence by hanging which involves “prolonged pain and suffering” and to replace it with intravenous lethal injection, shooting, electrocution or gas chamber in which death is just a matter of minutes

The instant PIL is filled on the basis of the following documents

1. The report of  The Royal Commission  on Capital Punishment 1949-1953 which dealt with prevalent modes of execution of death
punishment and stated that three conditions should be fulfilled in executing
the death sentence:-
A. It should be as less painful as possible.
B. It should be quick as possible.
C. There should be least mutilation of the body.

2. The 35th report of  The Law Commission of India  in the year 1967 which studied the
various aspects of the mode of executing Death sentence in India. It noted the fact that most of the countries has either adopted Electrocution, Firing Squad or Gas Chamber of which Hanging was found to be in lesser countries.

In para 1149 the Law Commission concluded that there is a considerable body of opinion which would like hanging to be replaced by something more humane and more painless.

However, in para 1150 it concluded that certainly the method of execution of death sentence should be certain, humane, quick and decent. It also agreed that the real agonizing part is the anticipation of the impending death. However, at that stage the Law Commission admitted that they were not in a position to come to affirm conclusion as to which of the methods satisfied the above-mentioned tests as it waited and depended in the progress to be done in the field of science and technology etc.

3. The judgement of “Deena Vs. UOI, 1983 (4) SCC 645” wherein The Supreme Court dealt with the provision of sec.354(5) Cr.P.C. and held that the execution of the Death punishment should satisfy the following test viz.:-
1. It should be quick and simple as possible, the Act of execution should be as quick and as simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner’s
apprehension.
2. The Act of the execution should produced immediate unconsciousness passing quickly into the death.
3. It should be decent.
4. It should not involve mutilation.

Though quite fairly at that stage the Court declined to strike down the validity of sec.354(5) Cr.P.C., yet, also held that the law being a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the
needs of life.

4. The celebrated Constitution Bench Judgment rendered in “Gian Kaur Vs. State of Punjab, 1996 (2) SCC 648” which devolve upon a Fundamental issue of Right to Life and Right to Death.
The unanimous verdict which came out from the said Judgment which is the backbone of the instant Public Interest Litigation reads as under:-
“The Right to Life including the Right to Live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a
dying man to also die with dignity when his life is ebbing out.”

5.  The 187th Report of the Law Commission of India  October, 2003 on the mode of the Execution of Death sentence has also taken note of the various methods of execution and categorically opined that‘hanging’ is undoubtedly accompanied by intense physical torture and pain.

The Law Commission infact went into detailed and different methods of execution through ages. It also noted that within India itself The Army Act, 1950, The Air Force Act, 1950 and The Navy Act, 1957 provided the execution of the death sentence by exercising either of the options namely one hanging by neck till death or being shot to death.

The said 187th Report also took pains to elaborate the detailed procedure as to manner in which a condemned prisoner is hanged till he is dead.

It also referred to the resolution adopted by the United Nations Economic & Social Council (ECOSOC) which had categorically resolved by way of safeguard No.9 which reads as under:-
“Where Capital punishment occurs it shall be carried out so as to inflict minimum possible suffering.”


On the basis of the above the prayer of the petitioner before the court is that

a) Declare provision contained u/s354(5)Cr.P.C., 1973 which laid down  “when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead”, to be ultravires the Constitution and especially incontravention of Article 21 of the Constitution being discriminatory and violative of Article 21 of the Constitution and also in contravention of theConstitution Bench Judgment in Gian Kaur’s case

b) Declare Right to Die by a dignified procedure of death is a Fundamental right as defined under Article 21 of the Constitution of India;

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A Law Graduate Pursuing Higher Studies in The Field of Law(LLM or LLD) would be treated as actual practice in bar( Jammu and Kashmir High Court order)

A Law Graduate Pursuing Higher Studies in The Field of Law(LLM or LLD) would be treated as actual practice in bar

The High Court of Jammu and Kashmir in an order dated 07/09/2017 has specifically ruled that a law graduate pursuing higher studies in the field of law would be treated in actual practice.

In the case of Tahir Ahmed Dar vs State of J&K ( SWPNo.1127/2016)  Justice Mohammad Yaqoob Mir of Jammu and Kashmir High Court observed that  "A law graduate when enrolled on the rolls of Bar Council has to be treated in actual practice or treated to have standing at Bar as long as he remains connected with legal profession only which include higher studies in law i.e. LL.M or LL.D, drafting of petitions, consultation which, in effect, would mean that he is practicing law "

In this case one Mr. Tahir Ahmad Dar made an objection to an appointment for the post of Legal Assistant in the State Law Department, contending that the selected candidate did not have the requisite experience of “two years’ actual practice at bar"

The petitioner also contended before the court that the experience of the selected candidate should have been calculated after deducting the time spent in pursuing an LL.M. He had submitted that the time spent in pursuing higher studies would not come under the purview of the phrase “actual practice at bar”

However the Court after considering various judgments of other High Courts and Webster Law Dictionary held that "In essence, both the two expressions, actual practice at Bar and standing practice at bar in the context of job requirement, stand on the same footing. The two  expressions cannot be given two different meanings in the context of job profile."

In this case the court issued following directions: 

" 1. Whenever an actual practice certificate or a certificate regarding standing at Bar is to be issued, High Court of J&K (Grant of Actual Bar Practice Certificate) Procedure Order, 1995 issued vide order No352 dated 26.08.1995 shall be strictly followed

2. A law graduate when enrolled on the rolls of Bar Council has to be treated in actual practice or treated to have standing at Bar as long as he remains connected with legal profession only which include higher studies in law i.e. LL.M or LL.D,  drafting of petitions, consultation which, in effect, would mean that he is practicing law. 

3. Appearance in the courts in connection with cases is not the only factor for grant of practice certificate

4. A law graduate who though enrolled as an advocate but is not connected with the profession of law or is in regular service of the Government of any other establishment, institution, unconnected with profession 
of law, in short pursuing any other full time avocationunrelated with the profession of law, shall not be treated to have standing at Bar or to be in actual practice at Bar."

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Difference between Interpretation and construction

Difference between Interpretation and construction

The words Interpretation and construction are generally used synonymously even though jurisprudentially they are perhaps different.

Interpretation means the art of finding out the true sense of an enactment by giving the words their natural and ordinary meaning. Whereas construction means drawing conclusions on the basis of the true spirit of the enactment even though the same does not appear if the words used in the enactment are given there natural meaning. 

Thus, in simple terms it can be said that, in Interpretation, we find out the true meaning of the words used in the enactment but in construction we draw the real sense of the enactment itself which might not prima facie reflected by the words used in the enactment. 

However a thin line of distinction was often drawn between Interpretation and construction in the good old days when the judges had uncharted freedom of judicial legislation. Cooley made an effort to distinguish between Interpretation and construction. According to him, Interpretation is the art of finding out the true sense of any form of words and enabling others to derive from them the same meaning which the author intended to convey, Whereas construction is the process of drawing conclusions, respecting subjects that lie beyond the direct expression of the text, which are in the spirit though not within the letter of law.

However in modern times when statutes are enacted after great deliberation and careful scrutiny, the freedom of judicial legislation curbed to a great extent and as such the distinction between Interpretation and construction hardly exist.

Regarding the distinction forwarded by Cooley, Sutherland stated that the distinction is 'erroneous'. Such distinction is, according to him is based on the wrong assumption that Interpretation determines the meaning of  words, and construction determines the application of words to facts, for one process cannot exclude the other, or if one does, it means that Interpretation must include construction or that there is no such thing as Interpretation and that all is construction.

Salmond does not distinguish between the terms Interpretation and construction.

Justice White also confirmed the above view of salmond.
 In United States vs F.W. Keitel (211 US 370 : 53 Law Ed 230) Justice White observed that although there is some distinction between them, they are so hard to disentangle that they cannot afford a suitable basis for discussion; and in common usage Interpretation and construction are usually understood as having the same significance.

According to Dias, it is difficult to distinguish between Interpretation and construction, since it is difficult to say when Interpretation leaves off and construction begins. He further stated that the distinction between the two is so thin that it is hard to distinguish between them.



References :

D.N.Mathur, Interpretation of Statutes
T.Bhattachariya, Interpretation of Statutes
K.P. Chakraborty, Interpretation of Statutes
Cooley, Constitutional Limitations
Sutherland, Statutory Construction
Dias, Jurisprudence
Babu Sarkar, Legal Method

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Human rights - Meaning and definition

                          Human Rights

Meaning and Definition:-

Human beings are rational beings.They by virtue of their being human,possess certain basic and inalienable rights which are commonly known as human rights.

Since these rights belong to them because of their very existence,they become operative with their birth. Human rights being the birth right,are,therefore inherent in all individuals irrespective of their caste, creed,religion,sex, and nationality.

These rights are essential for all the individuals as they are consonant with their freedom and dignity and are conducive to physical,moral,social and spiritual growth. They are also necessary as they provide suitable condition for the material and moral upliftment of the people.

Human right is a generic term and it embraces civil rights, civil liberties and social, economic and cultural rights. It is therefore difficult to give a precise definition of the term human rights.

Professor D.D.Basu defines human rights as, those minimum rights which every individual must have against the State or other public authority by virtue of his being a member of human family, irrespective of any other considerations

According to Universal Declaration of Human Rights, the expression ' human rights' denotes all those rights which are inherent in in our nature and without which we cannot live as human beings.

Justice P.N.Bhagwati in Maneka Gandhi vs Union of India, has defined the term human rights as, all those rights which are essential for the protection and maintenance of dignity of individuals and create conditions in which every human being can develop his personality to the fullest possible extents may be termed as human rights.

Human rights are therefore those rights which belongs to an individual as a consequence of being human as a means to human dignity. Those are the rights which all men everywhere at all times ought to have, something of which no one may be deprived without a great affront to Justice

As it exist today human rights are also known as Fundamental Rights, or Basic
Rights, or National Rights, or Common Rights that are the rights guaranteed to the people as individual, group or categories to live a decent and dignified life.

For the first time the term Human Right was used in the U.S. Declaration of 
Independence in 1776 as: “that all men are created equal, that they are endowed by creator certain inalienable rights that amongst those are life, liberty and pursuit of happiness”

The French Declaration of Rights of Men and Citizen in 1789 states as: “The aim of
every political association is the preservation of natural and inalienable rights of men; these rights are liberty, property, security and resistance to oppressions.”

The first documentary use of the expression Human Right is to be found in the charter
of United Nations which was adopted at San Francisco on June 25, 1945. The first concrete step by way of formulating various human rights was taken by the United General Assembly in December 1948 by adopting Universal Declaration of Human Rights.



References:-
H.O.Agarwal,Human Rights
S.K.Kapoor, Human Rights

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