The Ofcial Journal of NALSA Volume XVII • Issue 3 & 4 • July 2016 & October 2016 Editorial Committee Hon’ble Mr. Justice Adarsh Kumar Goel Chairman Judge, Supreme Court of India Hon’ble Ms. Justice Gita Mittal Member Acting Chief Justice, Delhi High Court Hon’ble Mr. Justice Sanjiv Khanna Member Judge, Delhi High Court Mr. P. S. Narasimha Member Sr. Advocate, Supreme Court of India Mr. Alok Agarwal Member Member Secretary, NALSA NYAYA DEEP The Official Journal of NALSA Vol. XVII ● Issue 3 & 4 ● July 2016 & October 2016 National Legal Services Authority 12/11, Jamnagar House, Shahjahan Road, New Delhi-110011 Phones : 011-23386176, 23382778 Fax : 23382121Website: www.nalsa.gov.in Disclaimer: The views expressed in the articles published in this Journal are those of the respective authors and do not reflect the views of the Editorial Committee or of the National Legal Services Authority. Printed at : SMAT FORMS 3588, G.T. Road, Old Subzi Mandi, Delhi-110007 Tel. : 0112385373, 9810530802 Editorial It gives me great pleasure to write this editorial for the new issue of Nyaya Deep. By the time the newly constituted Editorial Committee met, time for publishing the next issue of the journal had lapsed. Therefore, the Committee resolved to release a joint issue of the Journal for July 2016 and October, 2016. Interestingly, this issue is a repository of conventional nuances prevalent in the Indian Legal system. The learned authors have deliberated on a variety of socio-legal issues in the light of the prevailing law and have offered valuable suggestions. In this globalised world, reform is much in vogue with cultures of different continents cutting across each other and paving way for intricate challenges in the administration of justice. The safety of juveniles in India has become one of the biggest concerns. Recently, the Court dealt with pregnancy of a minor girl as a consequence of rape. It is in such situations that one may observe the legal contraventions as a hurdle in the process of justice to juveniles. It is sad to find frequent crimes against helpless victims. The demand is not merely to punish the guilty but also to heal the wounds of the distressed. Mere award of compensation in such cases is no solace. Immediate counselling and psychological help to the victims is also important. Although the attention of all the institutions under the justice delivery system has been oriented towards the rights of the accused, be it fundamental, human or legal rights, least is met towards the grave problem of illegal arrests that occur due to personal vengeance of sometimes official authorities or any person. Article 21 categorically denounces violation of the procedure established by law. Thus, violation of procedure as established by law in cases of illegal arrests amounts to nothing but travesty of justice. Strong and effective oversight mechanism at all levels is the need of the hour. Besides these, the issues related to senior citizens still run dry in the absence of enforcement of any legal right. The definition of legal protection should connote both economic and social empowerment of the senior citizens. Remedying neglect of the senior citizens is certainly an important component of social justice. Areas like succession law also demand a relook at certain practices and doctrines such as the Slayer’s rule. Another social challenge that is witnessing reforms in its legal contours is the policy of reservation to the backward classes in India. Supreme Court of India has held in several judgments that our Constitution is an organic document and its interpretation must be a reflection of the changing society. The policies of reservation however, have been tainted with political considerations and, therefore, have met with criticisms and demand a review. Paradigm shift is required to advance meaningful equality without loss of quality. These social issues have an immediate bearing on the relationship shared between the concept of Dharma and Justice in India. If we set the lens at the culture of commercial transactions in India, the increase in Arbitration has also surfaced stimulations in the jurisprudence of arbitration law in India. The continuous effort of the Courts and the legislature to rebut such challenges for adequate administration of justice is certainly remarkable. Much remains to be done to streamline the procedures on the subject. I hope that deliberations over such fundamental socio-legal reforms and challenges will ignite readers with the novel perspectives on the understanding of law and social change and enhance their theoretical knowledge on the concerned topic. (Adarsh Kumar Goel) Judge, Supreme Court of India Index VOLUME-XVIII- ISSUE-3, JULY 2016, & ISSUE-4-OCTOBER, 2016 Articles: Page No. Juveniles- In need of Legal Aid ... 01 Hon’ble Mr. Justice S.K.Agrawal Concept of Dharma and Justice: A Study in relation to law and Administration of Justice ... 7 Prof (Dr) Mukund Sarda Reservation Quota must be for all who deserves, should not be based upon Caste & Religion- Critical Analysis ... 14 Dr. Arvind Chakraborty Mr. Debaditya Das Welfare of Senior Citizens- Needs to Social Justice ... 33 Dr. Sailaja Petikam The Alternative Dispute Resolution System ... 40 Mr. M.B.Birader Validity and Legality of “Arrests” and Consequences of Illegal Arrest: A Study ... 48 Prof. (Dr.) Mukund Sarda Victims of Crimes and Trial of Offences ... 56 Dr. Gurneet Singh An Analysis of the Slayer’s Rule in America and India: A proposal to Amend the Hindu Succession Act ... 62 Ms. Nuzhath Khanam M Federal Court under Government of India Act, 1935 vis-à-vis present Supreme Court of India ... 71 Ms. Sharlin Puppal News from States ... 85 (April, 2016 to June, 2016) News From States ... 202 (July, 2016 to September, 2016) Statistical Information ... 311 —Justice S.K. Agarwal Juveniles-In need of Legal Aid Children are supreme assets to a country and are responsible for building its future. Therefore, it is the responsibility of everyone to ensure that they are able to live safely and with dignity. They being the greatest gift to humanity, they are potential useful human resource for the progress of the country. Children are innocent, vulnerable and dependent. Abandoning children and excluding good foundation of life for them is a crime against humanity. Millions of children live under specially difficult circumstances – as orphans, displaced persons, as victims of war and other man-made disasters. Gabrial Mistral, Nobel Laureate said, “we are guilty of many errors and faults, but our worst crime is abandoning the children, neglecting the foundation of life”. “Humanity as the stars in its future and that future is too important to be lost under the burden of juvenile folly and ignorant superstitiously.” - Isaac Asimov. One of the greatest achievement of progressive democracies in the last century is to have recognized the rightful place of the child in the societal fabric. Both in the international forum as well as domestic policies, positive action for the child’s welfare is evidenced by way of various United Nations Conventions, State Legislations and Judicial Interpretations. While adopting the declaration of Rights of the Child on 20th November, 1959, the General Assembly of the United Nations laid down 10 principles designed to enable children, irrespective race, colour, sex, language, religion or origin, to develop physically, mentally morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. This was followed-up by the adoption of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, commonly known as the “Beijing Rules”, on 29th November, 1985. As a member country, India enacted the Juvenile Justice Act, 1986, but after the adoption of the convention of the Rights of the Child by the United 1 / NYAYA DEEP Nations in 1987, the said Act was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ‘Act, 2000’). More recently, introducing concepts from the Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption, 1993, making further amendments and repealing the Act, 2000, Juvenile Justice (Care and Protection of Children), Act, 2015 was brought into force. The Act, 2015 was enacted to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment. This Act of 2015 has been framed to protect to the rights of juvenile delinquent. The Juvenile Justice system has been established with a view to take juvenile delinquents out of the jurisdiction of criminal courts and to protect them from technicalities of criminal procedures. Efforts have been made to co-ordinate various agencies to make the judicial system more accessible to the community. Emphasis has been made to create a relationship between the judicial system and the members of the community which could help the juvenile court in its decision making process. Article 39(e) of the Indian Constitution indicates State as the guardian of the health and strength of the tender-aged children to see that they are not abused or forced to enter avocations unsuitable to them, compelled by economic necessities. Therefore, they are to be provided with all necessary facilities and atmosphere to grow into responsibility and useful citizens of the country. For the full and harmonious development of his or her personality, a child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The juvenile Justice Policy in India is structured around the constitutional mandate prescribed in the language of Articles 15(3), 39(e) & 39(f), 45 and 47.