Theories of Punishment by Diwakar Sharma, Law Student

Penology : Theories Of  Punishment

Introduction :

Each society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to mention in relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show that one or other of the proposed justifications of punishments either logically include or logically excluded by definition.’ Punishment has the following features:

# It involves the deprivation of certain normally recognized rights, or     other measures considered unpleasant

# It is consequence of an offence

# It is applied against the author of the offence

# It s applied by an organ of the system that made the act an offence

The kinds of punishment given are surely influenced by the kind of society one lives in. Though during ancient period of history punishment was more severe as fear was taken as the prime instrument in preventing crime. But with change in time and development of human mind the punishment theories have become more tolerant to these criminals. Debunking the stringent theories of punishment the modern society is seen in loosening its hold on the criminals. The present scenario also witnesses the opposition of capital punishment as inhumane, though it was a major form of punishing the criminals earlier. But it may also be observed till recently the TALIBANS used quite a harsh method for suppression. The law says that it does not really punish the individual but punishes the guilty mind.

As punishment generally is provided in Criminal Law it becomes imperative on our part to know what crime or an offence really is. Here the researcher would like to quote Salmond’s definition of crime: Crime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual. He further substantiates his point of view through the following illustration  a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a mater of mere compensation between the murderer and the victim’s family.

Thus it becomes very important on behalf of the society to punish the offenders. Punishment can be used as a method of educing the incidence of criminal behavior either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. Theories of punishment, contain generally policies regarding theories of punishment namely: Deterrent, Retributive, Preventive and Reformative.

Punishment, whether legal or divine, needs justification. Because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians, the philosophical concepts and 'theories of punishment’ (i.e. the justifications) will be used as a basis for considering divine punishment.

Many a time this punishment has been termed as a mode of social protection. The affinity of punishment with many other measures involving deprivation by the state morally recognized rights is generally evident. The justifiability of these measures in particular cases may well be controversial, but it is hardly under fire. The attempt to give punishment the same justification for punishment as for other compulsory measures imposed by the state does not necessarily involve a particular standpoint on the issues of deterrence, reform or physical incapacitation. Obviously the justification in terms of protection commits us to holding that punishment may be effective in preventing social harms through one of these methods.

As punishments generally punish the guilty mind it becomes very important on the part of the researcher to what crime really is. But it is quite difficult on the part of the researcher to say whether or not there must be any place for the traditional forms of punishment. In today’s world the major question that is raised by most of the penologist is that how far are present ‘humane’ methods of punishment like the reformative successful in their objective. It is observed that prisons have become a place for breeding criminals not as a place of reformation as it was meant to be.

It may be clearly said that the enactment of any law brings about two units in the society- the law-abiders and the law-breakers. It is purpose of these theories of punishment to by any means transform or change these law-breakers to the group of abiders. To understand the topic the researcher would like to bring about a valid relation between crime, punishment and the theories. For that purpose the project is divided into three parts:

# Crime and Punishment

# Theories of punishment

# Conclusion

The researcher due to certain constraints of limited time and knowledge is unable to cove the area of the evolution of these theories separately but would include them in the second chapter. The researcher would now like to move on to his first chapter in which he would be vividly discussing ‘crime and punishment.’

The researcher in his first draft had included the chapter on the evolution of the theories from the early ages to the modern era, but due to certain limitations included them and discussed them during the due course of the project.

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Protection of Traditional Knowledge: International and national Initiatives and Possible ways ahead by Nithin Kumar, Law Student

Abstract

Traditional Knowledge (TK) is a cumulative body of knowledge which is handed down through generations through cultural transmission. Modern manufacturing industries are now commercially exploiting TK, without even sharing the benefit accrued from it with the indigenous communities.. This paper shall analyse the need for protection of TK and how commercial exploitation of TK is affecting indigenous communities and aims to find out why current IP systems cannot be invoked for the prevention of indigenous knowledge, the measures taken in the international and Indian scenario for protection of traditional knowledge. Another focus point of this paper is regarding the future of TK protection where author attempts to look into the proposals laid by developing countries and various Jurists like concept of defensive publication with special reference to Traditional Knowledge Digital Library (TKDL), Disclosure of Origin, Benefit sharing with indigenous communities for use of TK, etc.

Introduction

Around the world, various local communities possess knowledge and practices gained by them through experience of centuries and transferred from generation to generation. This culturally transmitted knowledge is referred to as traditional knowledge. Traditional knowledge is the result of intellectual activities in diverse traditional contexts. The term “traditional knowledge” is a very broad concept, which encompasses within itself indigenous knowledge related to various categories like agriculture, medicine, bio diversity as well as expressions of folklore in the form of music, dance, songs, handicraft, designs etc.

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Deepening of Democracy in India - by Ankit Awasthi LLM, Hidayatullah National Law University

Deepening of Democracy in India - Mahaveer Singh Dewal and Ankit Awasthi Hidayatullah National Law University, Raipur

India … has embarked on an experiment in democratic planning which is perhaps larger and more complex than any in the modern world. Some have called it a fateful experiment … what is on trial … is, in the last analysis, whether democracy can solve the problems of mass poverty. It is a trial perhaps never before made in such an atmosphere of urgency1. —Government of India, 1958 India has witnessed great social, political and cultural change. As the world’s largest democracy, its most diverse nation and one of its fastest growing economies, India is now, sixty years after Independence, universally regarded as an emerging superpower.

India started its life as an independent nation with a democracy that many people saw as shaky and thin on the ground – in Ambedkar’s words, democracy was ―topsoil‖ beneath which, India remained dominated by loyalties to caste, religion and region. India survived this early uncertainty, and has evolved into an increasingly mature democracy. The new maturity has come with a large-scale mobilization of people and a surging awareness of economic and political rights at the grassroots. Since the 1980s, this deepening has been accompanied with the rise of a new, powerful civil society, which is influencing and shaping our public debates

2. Achievement of Indian Democratic Government - Achievements are the measure of one's performance. India is largest democratic country in the world. After independence India continued with democracy system without any obstacle. If the Government of India, 1958 Sharma Shalendra’s Book democracy and development present Government's performance is to be measured then one has to look into their achievements. If this Government is seeking a return mandate, then in all fairness, they should be explaining us or detail us the achievements they have done in these five years. With nothing to boast, they went on adding the achievements of winning Gold in Olympics, Winning Oscar, Mission Chandrayaan as the achievements of their Government. This makes it obvious that they lack facts. If Pokhran was declared as achievement by the NDA Govt, it is because it involved the decisions of the Govt that required guts in the international arena. How Chandryaan could be the achievement of the government is known only to those media managers. Similarly if the UPA is taking credit for an Oscar for Slumdog, in all fairness, they deserve to get it because they are the reasons for the numerous slums in India and the people in BPL. Here goes my another list of achievements to help them

3. In few countries of the developing world has the impact of the state on agricultural modernization been as pervasive as in India. Since independence, India's democratic state has intervened extensively in the country- side with a plethora of policy packages aimed at promoting rural development, advancing social justice, and improving the living standards of the vast majority of the its inhabitants—known in official parlance as the ―weaker sections of society

4. We have made decent progress in several areas during the last 60 years. We have produced world-class scientists, engineers, journalists, soldiers, bureaucrats, politicians and doctors. We have built complex bridges and dams. We have sent satellites and rockets into space. We have increased the number of doctors tenfold. We have increased life expectancy from 32 years to 65 years. We have built about 1.25 million miles of new roads; we have multiplied our steel production by over 50 times and cement production by almost 20 times. We have increased our exports from a few million dollars at the time of independence to more than $125 billion now, with about $150 billion of imports

5. B.B. Misra: The bureaucracy in India: A historical Analysis of Development upto 1947 4 C.P. Bhambhri: Bureaucracy and Politics in India (Delhi: Vikas, 1971) 5 newshopper.sulekha.com/india-general-elections-2009/blogs/2009/04/achievements.htm

Green Revolution Perhaps, no other Indian initiative has enhanced the national confidence as the Green Revolution initiated by Dr. M.S. Swaminathan. This revolution, which started in 1965, not only transformed India into a food-surplus economy from a food-deficit economy but also triggered the expansion of the rural, non-farm economy. The lives of at least 400 million to 500 million Indians have been uplifted due to this initiative. From being a perennial importer of grains, India became a net exporter of food grains 10 years ago.

White Revolution - Coming from a generation that experienced an acute shortage of milk, it is unimaginable that, today, we have become the largest producer of milk in the world. The credit goes to the extraordinary vision of one person, Dr. Verghese Kurien. In a nation where children are malnourished, such abundance of milk has offered us the opportunity to fight malnutrition with the means produced in India

6. The economic reforms of 1991--initiated by the late Narasimha Rao, Dr. Manmohan Singh, Shri P. Chidambaram and Dr. Montek Singh Ahluwalia--opened up the minds of Indian corporate leaders to the power of global markets, helped them accept competition at home and abroad, and raised the confidence of consumers. Our hard currency reserves have gone up from a mere $1.5 billion in 1991 to over $220 billion today. The reforms encouraged entrepreneurship and gave confidence to businessmen and entrepreneurs to dream big, create jobs, enhance exports, acquire companies abroad and follow the finest principles of corporate governance

7. Economic scenario: Inflation is an index that is given on the basis of average calculations of the present situation vis-à-vis preceding weeks. The inflation has shot so high that the average is now showing almost zero inflation. They boast of near-zero inflation as an achievement whereas all of us are aware how far the prices of essential commodities soared high. The way they played around the petroleum prices as the elections approached near showed their ability or the lack of it to control the prices

8. S.R. Maheshwari : ―Bureaucracy and political development in India‖ in Indian journal of political science, vol. 39 7 Carl J. Friedrich: Constitutional Government and Democracy (Calcutta: Oxford and IBH, 1966). 8. J.W. Garner: Political Science and Government (Calcutta: World Press, 1952), II Edn.7

As per my opinion, because of glorious achievement of Democratic form of Government in India, which gained in last sixty year, India still persist with Democratic form of governance. 

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COMPANY ACT 1956- "BUY BACK OF SHARES" by Shiva Patel, 3rd year, National Law Institute University, Bhopal

INTRODUCTION

Be it a listed or unlisted company, share capital will bear an integral part in company setup . Share capital can be of two types i.e. equity share capital or preferential share capital. The share capital of a company has to be subscribed by one or more persons. After the share of a company has been allotted to the subscribing members, the subscribers have no right over the money gone as proceeds of the shares subscribed. All that the shareholder has is the right to vote at the general meetings of the company or the right to receive dividends or right to such other benefits which may have been prescribed. The only option left with the shareholder in order to realize the price of the share is to transfer the share to some other person.

But there are certain provisions in the companies act which allow the shareholders to sell their shares directly to the company and such provisions are termed as buy back of shares. Buy back of shares can be understood as the process by which a company buys its share back from its shareholder or a resort a shareholder can take in order to sell the share back to the company.

The provisions regulating buy back of shares are contained in Section 77A, 77AA and 77B of the Companies Act, 1956. These were inserted by the Companies (Amendment) Act, 1999. The Securities and Exchange Board of India (SEBI) framed the SEBI(Buy Back of Securities) Regulations,1999 and the Department of Company Affairs framed the Private Limited Company and Unlisted Public company (Buy Back of Securities) rules,1999 pursuant to Section 77A(2)(f) and (g) respectively.

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Bentham Analysis of Death Penalty and its Relevancy in Contemporary India by Rituraj Sinha, NALSAR University, Hyderabad

INTRODUCTION

Ever since the enactment of the Indian Constitution in 1950, public awareness of problems with death penalty and prevailing legal standards has evolved significantly. In dozens of countries, democratic governments in the course of conducting a major review of their national constitutions have decided to curtail or abolish the death penalty. Nearly all European and several Pacific Area states (counting Australia, New Zealand and Timor Leste), and Canada have abolished death penalty. The majority of states in Latin America have also absolutely abolished capital punishment, however, a few countries, like Brazil, use death penalty only in special situations, for example, treachery committed during wartime.

In India also, it should be noted that right from the days of the British rule, there has been a strict opposition to the enforcement of capital punishment. For example, in 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a Bill in the Assembly which proposed to abolish the death penalty in the country. However, it was overturned. Other significant events were the Supreme Court judgements inJagmohan Singh V State of U.P[1]. and in Bachan Singh V State of Punjab[2]. In these cases the Supreme Court held that death penalty is an exception not a rule and also came up with the doctrine of ‘rarest of rare case’. Thus, these developments in these cases can be regarded as the steps towards an attempt to abolish the death penalty. In retrospect, these cases are neither a small nor the insignificant achievement for the abolitionist.

  

It is now recognised in both national and international systems that the death penalty has no place in a democratic and civilised society. India is sovereign, secular, and democratic but yet, it is astonishing that India is one of the few countries in the world which still embraces the concept of capital punishment or the death penalty. Through this paper, the Author is going to study what Bentham has said about death penalty and will try to find out its relevancy in India.

Now coming to the theory, since Socrates, philosophers have examined the morality and policy of the death penalty, but Bentham devoted more space to the topic than any of his predecessors. Jeremy Bentham twice undertook to apply his general utilitarian principles of punishment to a critique of death penalty. First was in 1775[3] and the second was in 1831[4]. In his 1775 essay, firstly he explained the distinction between ‘simple’ and ‘afflictive’ death penalties and then also criticised the latter. Then he argued his case against the death penalty on the utilitarian grounds. His second effort in 1831 was entitled as ‘On death penalty’. This effort was mainly devoted against the death penalty on utilitarian grounds as it was made in his earlier effort of 1775, but the style was distinctly inferior then his essay of 1775. Thus taken together Bentham’s 1775 and 1831 essays constitute of the death penalty unique among leading philosophers.

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