Truck Laws
In the U.S., there are basic federal regulations that must be followed by all carriers engaged in interstate commerce. For instance, those trucking companies must comply with Federal Motor carrier Safety Administration (FMCSA) regulations regarding “Hours of Service”. These include hours allowed to be driven and hours needed to be off duty. This is a particularly important regulation, as 20% to 40% of all trucking accidents are tied to driver fatigue.
Federal regulations for truckers can be located in the Federal Motor Carrier Safety Regulations (including 49 C.F.R. §§ 350-399).
In addition to those federal rules, states have additional laws.
State-Specific Truck Laws
Arizona trucking laws were written to ensure the safety of both the truck driver and the passenger automobiles who share the road with them.
Those state laws that involve trucks operating only in Arizona include those involving:
• Vehicle size and weight
• Load
• Driver qualifications
• Driving
• Recording and reporting of accidents
Why These Laws are Important
Recent statistics show that half a million 18-wheeler, commercial truck accidents happen annually in the U.S., and most of the fatalities associated with those accidents are passenger automobile occupants. The most recent Arizona statistics show that large commercial trucks are involved in nearly 150 fatal automobile accidents each year.
If you have been injured or have lost a family member due to a trucking accident in the state of Arizona, please schedule a free consultation with Phoenix truck accident attorney Jerrold Mayro.
Mr. Mayro’s office is located at 2415 E. Camelback Road, Suite 700, Phoenix, AZ 85016.
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Environment Protection Laws in The British Era
Man’s ambition for limitless enjoyment and comfort has led him towards the exploitation of nature’s wealth so indiscriminately and so shamelessly as to reduce nature’s capacity for self-stabilization. Man’s voracious appetite for resources and his desires to conquer nature has put him in collision course with
the environment. The demand for his explosive technological society imposes intense stress on the state of equilibrium with the environment. The relationship between human beings and his environment has varied from time to time. It has also been varying from place to place at a given point of time. This statement is quite legitimate as far as India and its environment protection policy is concerned. It was a statement of one of the great personality in the field of law Prof. Upendra Baxi that ?In India, Environment protection and management started only after 1972 i.e. after the Stockholm Conference. In my view this statement is wrong, as the Environment protection in India started long before from the time of Ancient India. In the early stages of human history in India, human beings considered the environment as very dominant and that was why, they worshipped different aspects like trees, forest, animals, mountains, rivers etc. All of these held a special place of reverence in
Hindu theology. The Vedas, Puranas, Upanishads, and other scriptures of the Hindu religion gave a detailed description of Trees, plants and wildlife and their importance to the people. The Rig Veda highlighted the potentialities of nature in controlling the climate, increasing fertility and improvement of human life emphasizing on intimate kinship with nature. Atharva Veda considered trees as abode of various gods and goddesses. Yajur Veda Emphasized that the relationship with nature and the animals should not be that of dominion and subjugation but of mutual respect and kindness. Many animals and plants were associated with Gods and Goddesses so that they were preserved for the future generations. As they were associated with supernatural powers, no one dared to misuse the resources and therefore there was a check on the excess utilization
of resources. King Ashoka of the Mauryan Empire did as much as he could to protect environment. He made several laws for the preservation of the ecology of India. Same trend continued even at the time of medieval India when Mughals ruled India though not at the same pace which was expected from them. However, the strongest steps for the same came only
from British. They contributed a lot for the conservation of the ecological system of India by enacting several laws, which really were missing in the ancient era. Therefore this project of mine is to give you a glimpse of all the environment protection laws, which were made by the Britishers along with the other steps taken by them.
Arrival of the British and the formation of Environmental Laws in India
British arrived in India at 1600 with the mission of trading goods from India in the form of East India Company. But, after
seeing the immense amount of natural resources and plunders of opportunity to exploit the resources present here, they changed their game plan and started applying coercion so as to complete their aim of exploiting natural resources in India. At the time when British arrived in India, India was divided into several princely states ruled by different rulers. It was quite an easy task for the British to establish itself gradually and astutely. They very cleverly implemented the policy of Divide and Rule in India and took benefit of the diversity as on the basis of different rulers as well as due to multiplicity of religion in
the country. The early days of British rule in India were days of plunder of natural resources. They started exploiting the rich resources present India by employing the policy of imperialism . By around 1860, Britain had emerged as the world leader in deforestation, devastation its own woods and the forests in Ireland, South Africa and northeastern United States to draw timber for shipbuilding, iron-smelting and farming. Upon occasion, the destruction of forests was used by the British to symbolize political victory. Thus, the early nineteenth century, and following its defeat of the Marathas, the East India
Company razed to the ground teak plantation in Ratnagiri nurtured and grown by the legendary Maratha Admiral Kanhoji Angre. There was a total indifference to the needs of the forest conservancy. They caused a fierce onslaughton Indian Forests. The onslaught on the forests was primarily because of the increasing demand for military purposes, for British navy, for local construction (such as roads and railways), supply of teak and sandalwood for export trade an extension of agriculture in order to supplement revenue.
The British government started control over forest in the year 1806 when a commission was appointed to enquire into the
availability of teak in Malabar and Travancore by way of appointment of Conservator of Forest. This moved failed to conserve forest as the appointed conservator plundered the forest wealth instead of conserving it. Consequently, the post of conservator of forest was abolished in the year 1823.
Their early treatment of the Indian forest also reinforces the claim that destructive energy of the British race all over the
worldwas rapidly converting forest into desert. Until the later decades of nineteenth century, the British Raj carried out a immense onslaught on the subcontinent’s forest. With the Oaks forest vanishing in England, a permanent supply of durable timber was required for the British Navy because the safety and defense of the British Empire depended primarily on its navy. In the period of fierce competition between the colonial powers, Indian teak, the most durable of shipbuilding, saved British during a war with Napoleon and the later maritime expansion. To tap the likely sources supply, search parties were sent to teak forests of India’s west coast. Ships were built in the dockyards in the Surat and the Malabar Coast, as well as in England by importing teak from India.
The revenue orientation of colonial land policy also worked towards the denudation of forests. As their removal added to the
class of land assessed for revenue, forests were considered as an obstruction to agriculture and consequently a bar to the prosperity of the British Empire. The dominant thrust of agrarian policy was to extend cultivation and the watchword of the time was to destroy the forest with this end in view.
This process greatly intensified in the early years of the building of the railways network after about 1853. While great chunks of forests were destroyed to meet the demand for railway sleepers, no supervision was exercised over the felling operation in which a large number of trees was felled and lay rotting on the road. The sub-Himalayan forests of Garhwal and Kumaon, for example were all felled in even to desolation and thousands of trees were felled which were never removed, nor was their removal possible.
As early as 1805, the British government requested the British East India Company, which already controlled large parts of the
coastal regions, to investigate the feasibility of harvesting Malabar teak in Madras to meet the needs of British shipbuilding during the Napoleonic war. Although the East India Company was a private trading company commissioned in 1600, in India it functioned as a state entity, enjoying a monopoly of trade in the areas it ruled. Acting at the direction of the British parliament, it shared authority in India with government officials. The company appointed a former police officer, Captain Watson, as India’s first conservator of forests in 1806. Watson’s two-pronged plan involved placing a tax on teak in order to simultaneously slow its harvest by private interests and raise money for the government, and then purchasing the teak from the private dealers.
Together, these measures would guard against over-exploitation and ensure a steady supply of teak.
On 3 August 1855, Lord Dalhousie, the governor general of India, reversed previous laissez-faire policy to establish the India Forest Department and annex large areas of sparsely populated lands in India. These lands were declared protected areas and staffed by foresters, fireguards, rangers, and administrators. Over the next decades, forestry in India became an international profession with global specialists ruling an empire of trees and grasslands.
The new environmental policies served in turn to support British imperialism in India. Unlike the conservative French and
English royal forests reserved for hunting by the privileged elite, or the later American concept of total protection in national parks, the new colonial environmentalism was intended to generate income for the imperial British state through strict control of India’s natural resources. Lord Dalhousie’s new forest policies greatly expanded British authority over the land and people of India, a colonial empire that the British had procured piecemeal over the course of several centuries of mercantile and military exploitation. Thus, environmentalism and imperialism have a shared past, and the newly protected forests marked a
symbiotic alliance of environmental concern with expansion of state power in India.
After Napoleon’s defeat at Waterloo in 1815, however, the navy had less need of teak, and a new governor of Madras, Thomas Munro, felt that the timber royalty unnecessarily raised the opposition of Indian princes who objected to the tax placed on forests under their authority. Munro also felt pressure from Indian merchants who objected strenuously to a tax that cut severely into their profits and from peasants who saw traditional access to the forest sharply curtailed. The new governor rescinded the teak regulations, abolished Captain Watson’s position, and allowed the free market to operate as it had before
Lord Dalhousie’s tenure as governor-general from 1848 to 1856 saw the acquisition of territory and implementation of administrative reforms for which posterity dubbed Dalhousie “the great Proconsul.” Dalhousie’s support for conservation was unapologetically imperialist. Upon reaching the capital at Calcutta for his inauguration in 1848, he proclaimed, “we
are Lords Paramount of India, and our policy is to acquire as direct a dominion over the territories in possession of the native princes, as we already hold over the other half of India.” The British government in India made it clear that “all the forests are the property of Government, and no general permission to cut timber therein will be granted to anyone.”
The second half of the 19th century marked the beginning of an organized forest management in India with some administrative steps taken to conserve forest; the formulation of forest policy and the legislations to implement the policy decision. The systematic management of forest resources began with the appointment of the First Inspector General of Forest in 1964. Dietrich Brandis was the first Inspector General of India. Lord Canning appointed Dietrich Brandis as the first inspector general of the India-wide Indian Forest Department, a post he held from 1864 to 1883. The immediate task of the forest
department was under the supervision of Inspector General was that of exploration of resources, demarcation of reserves, protection of the forest from fire and assessment of the growing stock in valuable reserve by sample enumeration and prescription of yields which could be sustained. The objective of management of forest thus changed from obtaining of timber for various purposes to protecting and improving forests and treating them as a biological growing entity. Forest conservators had already been appointed in Bombay (1847), Madras (1856), and the United Burma Provinces (1857); Brandis in turn appointed forest conservators to the Northwestern Provinces and Central Provinces in 1860, Oudh in 1861, Punjab in 1864, Coorg and Bengal in 1864, Assam in 1868, and Berar in 1868. By the end of 1868, the Forest Department had administrators in every province of the subcontinent. In 1871, the Forest Department was placed under the newly established Department of
Revenue and Agriculture, itself under the umbrella of the Home Department. Brandis was followed by Wilhelm Schlich (1883-88), Berthold Ribbentrop (1888-1900), and E. P. Stebbings (1900-17) .
The first step of the British Government to assess state monopoly right over the forest was the enactment the Forest Act, 1865.
the act was revised after about thirteen years later in 1878 and extended to most of the territories under the British rule. It also
expanded the powers of the state by providing for reserved forest, which were closed to the people and by empowering the forest administration to impose penalties for any transgression of the provision of the Act. Yet the latter act was passed only after a prolonged and biter debate within the protagonist of the earlier debate put forth arguments strikingly similar to those advanced by participants in the contemporary debate about the environment of India.
Hurriedly drafted, the 1865 act was passed to facilitate the acquisition of those forest areas that were earmarked for railway
supplies. It merely sought to establish the claims of the state to the forests in immediately required, subject to the proviso that existing rights would not be abridged. Almost immediately, the search commenced for a more stringent and inclusive piece of legislation. A preliminary draft, prepared by Brandis in 1969, was circulated among the various presidencies. A conference of forest officers, convened in 1874, then went into defects of the 1865 act and the details of the new one.
The British Government declared its first Forest Policy by a resolution on the 19th October 1884. The policy statement had the following objectives:
1. Promoting the general well being of the people in the country;
2. Preserving climatic and physical condition in the country; and
3. Fulfilling the need of the people
The policy also suggested a rough functional classification of forest into the following four categories:
1. Forests, the preservation of which was essential for climatic and physical grounds;
2. Forests which offered a supply a valuable timber for commercial purposes;
3. Minor forest which produced only the inferior sort of timber; and
4. Pastures, which were forest only in name.
To implement the Forest policy of 1884, the Forest act of 1927 was enacted. Till 1935, the government of India enacted the Forest Act. In 1935, the British Parliament through the Government of India created provincial legislature and the subject of the forest as included in the provincial legislature list. Thereafter, several provinces made their own laws to regulate forest. Most of these laws were within the framework laid down in the 1927 Act . The British all along their reign in India formed many other Acts from time to time.
Main Acts in the field of Environment in the British Era Acts controlling Water Pollution
#The Shore Nuisance (Bombay and Kolaba) Act, 1853
#The Orient Gas Company Act, 1857
#Indian Penal Code, 1860
#The Serais Act, 1867
#The North India Canal and Drainage Act, 1873
#The Obstruction in Fairways Act, 1881
#The Indian Easement Act, 1882
#The Indian Fisheries Act, 1897
#The Indian Ports Act, 1908
#The Indian Steam Vessels Act, 1917
#The Poison Act, 1919
#The Indian Forest Act, 1927
The Shore Nuisance (Bombay and Kolaba) Act, 1853
This is the earliest Act on the statue book concerning control of water pollution in India. It was the first act in the field of Environment protection in India, which was enacted by the British for the British India. This act was passed so as to regulate the waste materials discharged in the coastal area of Bombay (Now Mumbai) and Colaba area, from various industries functioning in these areas.
Oriental Gas Company Act, 1857
This law imposed restrictions on fouling of water by the Oriental Gas Company. The Oriental Gas Company provided fine of Rs. 1000, for fouling water and for the subsequent continuation of the offence, Rs. 500 per day. Oriental Gas Company (OGC) Act was among the first act in the field of water pollution.
Indian Penal Code, 1860
As regards to water pollution, Indian Penal Code says that whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to make it less fit for the purpose for which it is ordinarily used, shall be punished with simple or rigorous imprisonment for a term exceeding to three months or fine of five hundred rupees or both. The definition is confined to a voluntary act and acts committed without any knowledge or accidentally would not be covered under the present law. Moreover, it has limited operation to the water of public spring or reservoir. Further, looking to the gravity of the offence it
attracts only minor punishment. It is surprising to know that in spite of the fact that this provision was incorporated to protect the public health, the cast ridden society wanted to enforce this provision against the lower cast person taking water from a public cistern but the Bombay High Court did not allow the above interpretation (R v Bhagi 2 Bom LR 1078) . Chapter 14th of the Indian Penal Code (IPC) is for Public Nuisance from section 268 to 291.
The Serais Act, 1867
The Act enjoined upon a keeper of Serai or an inn to keep a certain quality of water fit for consumption by “persons and use of it by the animals” to the satisfaction of the District magistrate or his nominees. Failure for maintaining the standard entailed a liability of rupees twenty. It is to be understood that the amount twenty rupees was a very big amount at that time and therefore should not be compared to the value of twenty rupees prevailing now in the country.
The North India Canal and Drainage Act, 1873
Certain offences have been listed under the Act contained in Section 70. It was to regulate the way canals for the purpose of irrigation as well as to discharge the effluents from various industries as well as drainage system is to be controlled.
Obstruction in Fairways Act, 1881
Section 8 of the Act empowered the Central Government to make Rules to regulate or prohibit the throwing of rubbish in any fairway leading to a port causing or likely to give rise to a bank or shoal.
Indian Easements Act, 1882
It protected riparian owners against unreasonablepollution by upstream officer. Illustrations (f), (h) and (j) of Section 7 of the
Act deal with pollution of waters. Section 28(d) of the Easement Act, 1882 on the one hand allowed a prescriptive right to pollute the water but it was not an absolute right. The illustrations (f), (g), and (j) of this Section, limited this prescriptive right not to unreasonably polluteor cause material injury to other.
The Indian Fisheries Act, 1897
The Indian Fisheries Act, 1897 contains seven sections. This act penalized the killing of fish by poisoning water and by using explosive. Section 5 of the Act prohibits destruction of fish by poisoning waters.
Indian Ports Act, 1908
The Indian Ports Act, 1908, has regulated water pollution caused by the use of oil or discharging of oil in the port waters.
The Indian Forest Act, 1927
This act was very comprehensive and contained all the major provisions of the earlier act and amendments made thereto including those relating to the duty on timber. The Act of 1927 also embodied land-using policy whereby the British could acquire all forestland, village forest and other Common Property Resources. Section 26(i) of the Act makes it punishable if any person, who, in contravention of the rules made by the State Government, poisons water of a forest area. The State Government has been empowered under Section 32(f) to make rules relating to poisoning of water in forests. This act is still in force, together with several amendments made by the State Governments.
ACTS FOR THE PROTECTION OF THE INDIAN ENVIRONMENT
#The Orient Gas Company Act, 1857
#The Serais Act, 1857
#The Northern India Canal and Drainage Act, 1873
#The Obstruction in Airways Act, 1881
#The Indian Fisheries Act, 1897
#The Indian Ports Act, 1901
#The Bengal Smoke Nuisance Act, 1905
#The Explosives Act, 1908
#The Bombay Smoke Nuisance Act, 1912
#The Inland Stream Vessel Act, 1917
#The Mysore Destructive Insects & Pests Act, 1917
#The Poison Act, 1919
#The Andhra Pradesh Agricultural, Pest & Diseases Act, 1919
#The Indian Boilers Act, 1923
#The Workmen’s Compensation Act, 1923
#The Indian Forest Act, 1927
#The Motor Vehicles Act, 1939
#The Bihar Wastelands (Reclamation, Cultivation & Improvement) Act, 1946.
Air Pollution Acts
#Indian Penal Code, 1860
#The Indian Boilers Act, 1923
#Motor Vehicle Act, 1939 (Repealed by Act No.59 of 1988)
#The Poison Act, 1919
Municipality Laws
#Uttar Pradesh Municipality Laws, 1916
#Bihar and Orissa Municipality Laws, 1922
Both of these laws were amongst the earliest laws for regulating the environment conditions in the cities by the help of municipality laws.
Wildlife Protection Act
#Forest act of Madras 1873
#Elephant Preservation Act, 1879
#World Birds Protection Act, 1887
#World Birds and Animal Protection Act, 1912
#Hailey National Park Act,1936 (Now Called Corbett National Park)
In the field of wildlife protection, the first wildlife
statute was enacted in Madras (Chennai) for the protection of wild elephants. The law introduced a general prohibition on destruction of wild elephants and imposed penalty on those who violated the embargo. The first effort by the Central Government came after six years later by the passing of the Elephant Preservation Act in 1879. In 1887, central government enacted the Wild Birds Protection Act prohibiting the possession or sale of wild birds recently killed or taken during the
notified breeding season. In 1912, the Central Government enacted a broader Wild Life and Animal Protection Act. Extending to most of the British India, this law specified a closed hunting season and regulated the hunting of designated species through licenses. Indeed, all the statutes related primarily to the regulation of hunting and did not regulate trade in wildlife and wildlife products- both major factors in the decline of Indian Wildlife. As a consequence, wildlife depredation continued and many species became extinct.
The first comprehensive law for the protection of wildlife and its habitat was perhaps the Hailey National Park Act of 1936, which established the Hailey (now Corbett) National park in Uttar Pradesh.
Miscellaneous
#The Indian Fisheries Act, 1897
#The Indian Forest Act, 1927
#Criminal Procedure Code, 1893
Criminal Procedure Code, 1893.
Criminal Procedure Code, 1893 was one of the major acts, which provided some of the very strict punishments for the environmental offences under the criminal law. Sections 133 to 144 in the Chapter XII of the Criminal Procedure under the heading Public Nuisanceprovided for the punishment under criminal procedure for the commission of any nuisance,
which affected the public at large. The environmental degradation was also included in it as any degradation of the environment is automatically supposed to be affecting the public at large.
Conclusion
Thus, it can be held hereby that some of the very strong steps were taken by the British in order to protect environment from degrading and to preserve it for the future generations. But, some of these laws showed their capability on paper and not on the practical grounds. Many laws and acts enacted by the British in our country proved out to be more useful for them (British) as compared to us. They made several laws so as to make their task easy as by that they were able to make use of
the resources and degrade environment comfortably and lawfully. Some of the laws were so as to protect the resources from the natives itself, so that the British can utilize them for their own needs which were to gain as much capital from India as possible. Introduction of Railways in India is thought to be major reward for the Indians by the British and there is no doubt that it is one of the very valuable gift of the British for India. But, the British never brought rail to India with the thought of benefiting us but for their own benefit. They introduced rail in India so that the resources present in India, especially environmental resources that they were harnessing, can reach easily and quickly to their destination. They made laws for conserving the forest and in the process marked much of the area as the property of the government so that no one could object as to he use of these forest by the British. Even if some laws were present which were beneficial for the environment conservation, then they were not implemented properly for them. The punishments prescribed under the laws were not very strict and so the offender was very easily allowed to escape. Moreover, most of the time, the British themselves depleted the resources. The theories like Sovereign Immunity always saved the government from being sued under public offence. The maxims like ?King can do no wrong? were applied to its full extent. But still to say that the British always thought of their own benefit would be a wrong statement. The laws like Indian Penal Code 1860, and Criminal Procedure Code 1893, were very effective. Moreover, the laws made by the British paved a way for the Indian to think and implement new laws in this field itself. These laws were one of the first lessons for the Indians to make laws for the protection of the environment in a more polished fashion in the future.
Laws OF Magnetic Action.
FIRST LAW: Relation of Power to “Tone”. The effectiveness of magnetism in action depends upon harmony of “tone” between its possessor and any other person, and in securing such “tone” harmony, on any magnetic plane, in any particular psychic state, at any given time, psychic and physical magnetism mutually cooperate.
SECOND LAW: Magnetic Intention. The magnetic intention (“I INTEND MAGNETICALLY”) intensifies otherwise unconscious magnetism, and runs through all the mass of general etheric vibrations like a theme in complicated music, imparting to them unity, character, intelligence, and definite and enormous effectiveness in practical employment.
THIRD LAW: Influence of Purpose. In the employment of magnetism, long-run purpose establishes etheric character, and specialized purpose confirms that character if it concentrates the general purpose, but confuses that character, perhaps destroys it, if it antagonizes the general purpose.
FOURTH LAW: Force of the Ideal. Idealism of motive determines the character of etheric vibrations, and idealism of magnetic activities determines the quality of magnetism achieved.
FIFTH LAW: Sway of Other Interest. The general sway of other interest in life, and the particular influence of other interest on special occasions, impart to uses of magnetism enormous effectiveness, and not least in relation to self.
SIXTH LAW: Reaction of Admiration. The consciousness of admiration for others, recognized by them, reacts with tremendous power to stimulate magnetic action.
SEVENTH LAW: Measure of the Intake. In the magnetic life, intake of power is correctly measured by output of power: inversely in waste, directly in intelligent expenditure.
EIGHTH LAW: Adjustment. Magnetic effectiveness is proportioned to accuracy and fulness of adjustment, to things, to laws, to forces, to times, to situations, to qualities, to facts, to truths, to persons, and only studied experience can discover and establish such adjustment.
The problems of adjustment to persons are these:
With inferiors, to put self magnetically, without appearance of condescension, on their levels for the end in view, applying then the general principles of magnetism.
With equals, to apply the general principles.
With superiors, to assume their level while magnetically deferring, without adulation or humility, to such superiority, regardless of its reality or unreality, for the end in view, applying the general principles of magnetism.
NINTH LAW: The magnetism of identity. The magnetic value of adjustment expresses the force and completeness with which the individual can identify himself with another person, suggesting oneness through attitude, gesture, act, eye, tone, language, and telepathic sympathy.
TENTH LAW: The use of reactions. Magnetic skill exhibits in the manner in which beneficial reactions are received and utilized, negative or indifferent reactions are ostensibly ignored, yet constituted stimulation for further persistent magnetic action, and hostile reactions are refused, without ostentation, but with determination (if worth while) to “win out” through better adjustment and increased magnetic endeavor.
ELEVENTH LAW: Magnetic attack. Magnetic success demands the direct attack when etheric harmony of “tone” is assured, but the indirect method otherwise; that is, such attack-methods as will secure that harmony.
TWELFTH LAW: The conquest of antagonism. Magnetism ostensibly ognores, and refrains from, exciting antagonism; but, when antagonism is evident, rejects it and proceeds on the indirect attack, or openly accepts it and adopts the direct or the indirect method as the one or the other promises speediest and most perfect harmony of “tone”.
THIRTEENTH LAW: Mortal antipathies. Success-Magnetism conquers the influence of deep-seated natural antipathies only by avoiding their causes.
FOURTEENTH LAW: Re-adjustment. The etheric life is unceasing reaction, and magnetism, therefore, demonstrates itself by squaring with every issue and making of every change and every defeat a new opportunity.
FIFTEENTH LAW: Control of output. It is an important to know when to open the circuit that is, to cut off the current of magnetic force as it is to know when to close the circuit to pour forth magnetic influences.
SIXTEENTH LAW: Concession. Concession becomes magnetic in its timeliness. If premature or belated, it defeats magnetism.
SEVENTEENTH LAW: Harmonic conditions. Magnetism enhances through beauty of personal surroundings, in cleanliness, order, adornment, art, literature, music, and the like.
EIGHTEENTH LAW: Sovereignty of will. is the director of native and unconscious magnetism and the creator and director of developed magnetism. Power of will is indispensable to magnetic power.
NINETEENTH LAW: Energy in magnetic action. The projection of magnetic influence proportions to inner, conscious intensity of psychic and nervous states. Exploding powder in the gun calls for the man behind the weapon, and the soul within the man, and powerful vibrations within the soul’s arena, and magnetic intention within the vibrations, and psychic energy within the intention.
TWENTIETH LAW: Self-control. Magnetic power becomes effective precisely as mastery of self, in restraint and in handling, approaches perfection.
TWENTY-FIRST LAW: Magnetic handling of self. The attitude of magnetism, the magnetic intention and psychic pose, “I stand positively magnetic toward this person or this situation,” constantly maintained, ultimately instructs in all the arts of magnetic self-handling through the law of auto-suggestion, and realizes in practical form its own ideals.
TWENTY-SECOND LAW: The magnetic mask. The mask of magnetism achieves effectiveness when it covers personal states and purposes in a manner positively to attract, and in that manner alone.
TWENTY-THIRD LAW: Magnetic consciousness. Intense magnetic consciousness without thought concerning it secures, by its uplifting and stimulating influence, the greatest exaltation of personal powers when employed.
TWENTY-FOURTH LAW: Magnetic faith. A deep and vital faith in the certainty of magnetic success renders all latent and developed magnetism dynamic, if that faith is thrown into action.
TWENTY-FIFTH LAW: The demand in use. In the application of magnetism to any task, intense, persistent demand upon the Universal Forces swings them directly into the effort.
TWENTY-SIXTH LAW: The affirmation in use. When, in the application of magnetism, one affirms, mentally, intensely, persistently, “I am receiving and exerting power,” he unconsciously calls to aid all the success-elements and makes himself a center toward which the Universal Forces inevitably gravitate.
TWENTY-SEVENTH LAW: The magnetic telescope. The magnetic attitudes, faith, demand and affirmation, constitute a magnetic telescope through which the distant goal of success is magnified and all nearer obstacles, lures and irritating conditions are closed out of view.
TWENTY-EIGHTH LAW: Magnetic accumulations. Magnetism, through correct application to life, not only develops in the individual, but accumulates in his environment, and reacts beneficially without direct personal supervision.
TWENTY-NINTH LAW: The personal atmosphere. The personal atmosphere exactly reflects the inner self, and it furnishes a perfect field for magnetic effectiveness only when the self and the body are clean and buoyantly healthy.
THIRTIETH LAW: Subordination of physical magnetism. In the subordination of physical to psychic magnetism, each finds its greatest effectiveness according to the relative development of both orders.
THIRTY-FIRST LAW: The fixed idea. Long-continued association with some fixed, great and attractive idea sets into operation certain deep, subconscious operations of the soul, which, for a time unrecognized and unmanifest in life, gradually and surely coordinate all individual powers thereto, induce a working of the whole system in harmony therewith, and finally emerge in the objective life and consciousness as a unified, actual dynamic force. The idea has swung the individual, has transformed him, has harmonized and intensified his faculties and his personal ether, has come to sovereignty in his personal atmosphere, and from there exerts a dynamic force upon other people and life’s conditions.
This Article has tried to saturate you with the idea of success coordinating with its necessary elements, and has thus endeavored to swing your whole being into mighty belief that large success is also for you.
Vogel Interpretation Tax Laws (Ciot)
Vogel Interpretation Tax Laws (Ciot)
Different language structures and multiple potential interpretations have potentially significant importance to the interpretation of tax treaties, usually concluded in two, equally binding, authentic-language versions. Practitioners need an awareness of these differences and their import in order to avoid unexpected exposure and to understand tax treaties.
The expert papers in this collection explore the methods of interpretation of tax statutes and treaties used in Japan and Germany, particularly in light of the wholly different structure of the Japanese language in comparison to European languages. They also present a detailed analysis of issues of international transfer pricing in Germany and Japan, highlighting both important differences and surprising similarities between the two legal systems.
Interpretation of Tax Law and Treaties and Transfer Pricing in Japan and Germany results from a recent conference in Germany in honour of Professor Hiroshi Kaneko, Emeritus Professor of Tokyo State University, where some 60 scholars and practitioners of international tax law from Japan and Germany convened to discuss questions of common interest.
The collection provides an important contribution to the literature in the field of international and comparative taxation. It proves indispensable reading for tax practitioners confronted with interpretation conflicts in Japanese tax treaties or with transfer pricing problems in connection with Japan.
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Satisfactorily Addressing Family Laws
Australian legal environment is becoming highly complex nowadays. The legal system itself is complicated because of the broad field it covers. Family law is one of the sub parts of the very complex legal system. Family laws are the law that covers domestic relations and other family related issues. Categories of family laws include complications from the nature of marriage and domestic partnerships, child or spousal abuse and abduction. Also covered issues by family laws are the issues arising from the termination of relationships that includes divorce, annulment, property settlements and children custodial matters.
Family laws like any other fields of the legal system can bring stress and fatigue to you. So, it is indeed necessary that you seek for help from a family lawyer that is capable of dealing with your family laws issues. Facing issues that are covered by family laws need an expert and specialised lawyer to be able to attain the best possible result. Without the aid of a family lawyer in settling family laws can put you at greater risk.
One of the categories of family laws is the issue that involves children. This category varies greatly depending on the relationship of the parents involved. The difference will depend whether the parents are married or not. If the parents are married then they will have both contacts with the children whilst if not the Father’s right are the one that are usually much diminished. But after the revision of the family law regarding this particular issue states that both married and unmarried Fathers will have the same rights as the mother whenever they got separated. This is because of the reason that both parents will work for the good of their children.
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Another point wherein a family lawyer is needed is in settling the family laws issue of properties. Anything that is capable of owning can be regarded as ‘property’. Everything that belongs to the couple, regardless of who bought and name is in it and no matter the property was owned before the marriage are all included in the property settlement under family laws. In family laws situations the case is not about going in the court but settling the issues even through simple negotiations. The family lawyer will be the one to help in obtaining the settlement satisfactory.
Although facing any troubles in the family can cause stress, fatigue and even complication for both parties but with the aid of a family lawyer can help you solve the issues. Burdensome from both emotional and financial matters are brought by issues of family laws. Consulting a family lawyer can help you save time, effort and money by not enabling you to go through court trials but this can cause you much trouble if you got the wrong one. Looking for an expert and specialised family lawyer is important and needs meticulous selection to address your family laws issues. The best family lawyer possesses compassion, understanding and patience. Getting the service of family lawyer must be less distressing rather than increasing your problems.
The most important point to achieve satisfactory results in solving family laws issues and smooth process is having open and honest parties.
What would you like to know about divorce? Stowe Family Law’s Senior Partner, Marilyn Stowe, appeared on GMTV on Wednesday 6 January 2010, to provide family law advice to viewers. If you have a question and it is not covered in this clip, you can always contact the firm directly (01423 532600 / www.stowefamilylaw.co.uk) or visit Marilyn Stowe’s blog (www.marilynstowe.co.uk) for answers.
The Dilemma of Illegal Immigration: Enforcement of Current Federal/State Laws Versus Reform
George Orwell, British author of the satirical novels “1984,” and “Animal Farm,” once quipped in political commentary, “What, at first, is absolutely strange, if forcibly fed to a population of human beings in small digestible bites, through the clever medium of government sponsored propaganda, will, over time, become accepted tradition and commonplace, even if sorely corrupted and evil.” What this basically means is that a government, any government, may spend hundreds-of-thousands of taxpayer dollars to legislate a law of great benefit for the people of a nation, the majority of which may eagerly support its passage, and, over time, gradually and duplicitously, for spurious reasons, de-emphasize the importance of the law’s enforcement, incrementally decreasing the means of enforcing it, until very few concerned citizens actually question why such an important law has gone un-enforced. During the interim time, however, as the law has regularly gone un-enforced, the very evil thing that the law was originally intended to proscribe has become a tolerated practice to a great percentage of the population and, moreover, the electorate. This evil will continue to be tolerated by a duped populace until its deleterious effect on the nation is much too great to be ignored.
Almost identical to the above scenario, U.S. immigration laws, under Title 8 of the U.S.C, were originally legislated by the U.S. Senate and House of Representatives with overwhelming, if not total, support from both Democrats and Republicans during the first four decades of the 20th Century. As with any federal law, the legislative mandate of the U.S. Code directly addressing illegal immigration, 8 U.S.C. § 1325, 1326 (which propelled the legislation through Congress) was placed into the hands of the President of the United States, or the Executive Branch of the U.S. Government, to faithfully enforce.
The due proper enforcement of the U.S. Immigration Code proceeded along pretty well until around 1960, when the passage of U.S. Civil Rights legislation and the strict enforcement of illegal Hispanic immigration collided head-on in the political arena. Subsequently, the legislative mandate of the laws, which was to keep illegal (especially Hispanic) aliens from entering the nation from across the Southern border, was unfortunately subjugated, at that time in history, to political whims and sympathies emanating from, primarily, Democratic U.S. senators and representatives. These legislators cared more about scratching the backs of their wealthy farmer constituents during their seasonal picking times (ensuring that they had ample illegal alien fruit and vegetable pickers) than making sure that immigration laws were faithfully enforced. Consequently, enforcement of immigration law became inanely geared much more to political favoritisms and special interests than to the rule of law. This placed the U.S. Border Patrol in the ambiguous posture of enforcing illegal immigration not according to prescribed federal law, but, rather, according to the whims of powerful men and women in high political offices. I know this to be true because, in 1985, a senior U.S. Border Patrol agent told me that he was extremely frustrated with the differing orders coming from Washington, D.C. telling him and his officers to substantially reduce the number of raids made on known employers of hundreds of illegal aliens in San Diego County. At the time, I was a San Diego County deputy sheriff working at the Vista San Diego County Jail.
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Currently, there are millions of parasitic undocumented illegal Hispanic aliens at large throughout the United States, especially in California, Arizona, New Mexico, and Texas due to the U.S. Executive Branch’s refusal to properly enforce the current immigration laws that are an integral part of the U.S. Code. Many of these illegal aliens are crooks and felons, who are going about with false identifications, bogus driver’s licenses, and fraudulent Social Security numbers for the express purpose of ripping-off American citizen taxpayers, obtaining food stamps, medical care, and other public services at taxpayer expense. Of the 15-to-20 million illegal aliens presently here, more than 20 percent of them are violent felons, burglars, robbers, thieves, and gang members. Over 20,000 of them are presently serving federal and state prison sentences for felonies they have committed. But all of these undocumented aliens have one felonious thing in common. They are all guilty of violating federal law by illegal entry into the United States.
Recently, Barack Obama had the unmitigated gall to call, misguided, Governor Jan Brewer’s signing into law a new Arizona legislation giving state and local law enforcement officers the authority to detain, and arrest, suspected illegal aliens. How dare Obama say such a thing! When he (and the eight Presidents before him) have blatantly refused to honor their oaths of office, to faithfully execute the (immigration) laws of the United States, it is utterly reprehensible for him to criticize a responsible state governor for honoring the legislative mandate of a vital federal law when its lack of federal enforcement has critically upbraided the peace and security of her state.
Quite ironic it is that the Executive Branch of the federal government can build and staff what they regard as secure top-secret installations for military weapons research, intelligence gathering, or for what they want to consider important in the amorphous name of national security, and thoroughly protect the sites from illegal entry with all sorts of armaments, aircraft, and high-tech gadgetry, while at the same time insisting that protecting the Southern U.S. against illegal entry is almost impossible. Case in point, Area 51, comprising thousands of acres of desert, mountains, and forested land, which is guarded day and night against illegal entry. Take, for instance, an ordinary American citizen who merely wants a job working inside Area 51, and obtains false identification in order to gain entry. Let’s say that that citizen gets a job working at one of the government-run restaurants on the installation with his false identification. Two weeks later, Joe Blow is hard at work serving food when government agents harshly arrest him for illegal entry onto U.S. Government property. The poor fellow is charged with a dozen federal crimes, put on trial in a federal court, and subsequently convicted and sentenced to 30 years in a federal prison. Yet, most U.S. citizens will read about the person’s conviction and strongly agree that the intruder had it coming when he illegally entered a restricted federal area. So, why isn’t prevailing U.S. public opinion against men, women, and families who conspire to illegally cross the U.S.-Mexican border? Such an act is as much a crime as illegal entry onto Area 51. Perhaps it is as George Orwell said, that through deliberate government inaction, and the effective dispersal of government sponsored propaganda, a law vital to a nation can, over time, be de-emphasized to a point where the average citizen does not consider its enforcement as essential.
I sincerely believe that our second President, the late great John Adams, who coined the expression, “We are a nation of laws and not of men,” would be completely devastated by how the American republic has become a nation of men and not of laws. Mr. Obama obviously wants to see the U.S. Constitution pragmatically changed to give the federal government total control over every matter the Framers considered state concerns. In essence, Obama wants revise the Bill of Rights and to remake the American republic to resemble the Federal Republic of Germany, which has no bill of rights guaranteeing freedom of speech, freedom of religion, the right to keep and bear arms, and the right to be free of unwarranted invasions of privacy. But, most of all, he wants to see the evisceration of the 10th Amendment, which currently reads, “The powers not delegated to the United States (the federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It seems to be sad, but true, that if a standing President does not like the laws that pervious congresses legislated, and that previous Presidents signed into force, that President will not make an effort to enforce them. This refusal to faithfully execute “all” standing federal laws is, in my opinion, an impeachable offense constituting a high crime. Nonetheless, a President who has a majority of a U.S. Congress rubber-stamping every thing he does, and wants to do, is in no fear of impeachment. A candidate for President, who is not a natural born citizen of the United States, can even be elected and sustained with impunity with a Speaker of the House of Representatives and a Senate Majority Leader supporting him. What was true about “Dubya” and his rubber-stamping Republican Congress is equally true, if not more so, with Barack Obama and his rubber-stamping Democratic Congress. The Obama administration is saying, in effect, that President John Adams, his historical regard for the application of law, and every other salient precedent illustrating the importance of following law instead of human whim, can all go to hell.
Perhaps, during the November 2, 2010 mid-term congressional elections, indignant American citizens, the majority of the voting electorate seeking the rule of law, will go to the polls to cast out of the U.S. Senate and the House those representatives who voted for a legislation to deprive the American public of their freedom of choice, which will force them, by federal mandate, to, either, buy into federally controlled health care, or be penalized for not doing so. The Obama administration is systematically working with the Democratic controlled Congress against the interests of American citizen taxpayers by seeking a federally controlled, essentially totalitarian, regime that will only increase national debt, tax burdens on individuals and families, control over a citizen’s daily life, and do away with the type of federalism established in the U.S. Constitution. I sincerely pray to Nature’s God that a great majority of American citizens, registered voters seeking the rule of constitutional law, regardless of political party affiliation, will converge on the voting places this coming November to elect new U.S. Representatives and Senators who will abide by the U.S. Constitution instead of the whims of an aberrant, power-hungry President.
Posted in Constitutional Law | 
Current, Dilemma, Enforcement, Federal/State, Illegal, Immigration, Laws, Reform, Versus | 
Leave a commentRedefining The Rape Laws in India: A Constructive And Comparative Approach
Unlawful carnal knowledge required sexual penetration, however slight. Today, in addition to the requirement of carnal knowledge, most rape statutes require force or threat of force against the will and without the consent of the victim. Numerous law review articles have been written on the requirements of force and against the will of the victim. The articles focus on the force requirement and not the penetration requirement, which is the male understanding of what is necessary when a woman is threatened with the crime of rape.
Penetration is required in addition to the force and against the will requirements. Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most legislation. Some legislation legislated penetration of the vulva, but required a showing of penetration of the vagina.
Fletcher also observed that “[s]ometime in the last two or three centuries, our scientific thinking about crime began to shift from the harm done to the act that brings about the harm”. Furthermore, [i]nstead of seeing harm first and the action as the means for bringing about the harm, we are now inclined to see the action first and the harm as a contingent consequence of the action. “Most criminal statutes focus on the act, rather than social harm”.
Rape is an invasion of a woman’s body in which her private, personal inner space is violated. The act of rape denies woman autonomy by abridging her right to determine when, with whom, and how she will allow an individual to enter her zone of body privacy. In addition to the physical harm, the crime of rape grants man domination over the woman’s zone of body privacy. Under the Indian Penal Code (IPC), the crime of rape occurs when the following happens:
“A male … has sexual intercourse with a female not his wife … and compels her to submit by force or by threat of [force] … [or] has substantially impaired her power to appraise or control her conduct by administering … without her knowledge drugs [and] the female is unconscious … [or she] is less than 10 years old.” reference to rape as sexual intercourse suggests that rape is not a crime if it is sex. But rape is not sex.
Some suggest that sexual intercourse has to include penetration of the vagina, however slight, and anything less is not rape because it is not intercourse. Thus, the touching of the female’s sex organ, without the penetration of the vagina, cannot constitute rape under the IPC. Rape, however, is not sex; it is a crime, and it is a crime of violence. The crime is complete when the act is done, or the social harm has occurred. The act is done when the female’s private, personal inner space is violated, and that space is violated when an uninvited individual enters the zone of protected pleasures.
Definitions Of Rape: Penetration.
The variations in definitions as to what constitutes sexual intercourse is part of the problem in defining what has to be penetrated. With respect to the raping of a woman by a man, most states require penetration of the vagina. Defining what has to be penetrated is significant because if rape is viewed as a crime against the woman, then any conduct that is perceived as violative to the woman should be classified as rape. Many statutes, with respect to the penetration element, provide that an offender has to engage in sexual intercourse. It is assumed that penetration has to be effectuated in order for there to be sexual intercourse. The statutes, however, fail to state what has to be penetrated–the vagina, the vulva, the labia, or the clitoris? Some states refer to penetration of the female organ without further defining penetration.
To penetrate is ‘to enter or force a way into; [to] pierce.’ Penetration is the ‘act or process of piercing or penetrating something.’ How do we determine what constitutes a sex organ? And what needs to be penetrated? And can it be penetrated? Even though there are numerous articles stating the force and against the will requirements are male responses to being attacked, the male question has not been addressed with respect to penetration. Penetration is required in addition to the force and against the will requirements. Penetration, too, is a male understood type conduct. The penetration of requirement does not necessarily require that the vagina is completely entered or that the hymen is ruptured. Is entering the vulva or labia sufficient?
Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most jurisdictions. Some jurisdictions legislating penetration of the vulva, but required a showing of penetration of the vagina.
At early common law when rape statutes were initially written, women were deemed property of men. Virgin daughters were a valuable commodity belonging to their fathers; wives were the chattel of their husbands. The father or husband ownership right of women made rape a crime against property. Because rape was a property offense, the father or husband was the victim rather than the woman. Because fathers or husbands were the victims of rape, men wrote rape laws for their own benefit and therefore, included a penetration requirement. Penetration requires male type conduct and therefore, evolved as the measuring rod for determining when conduct had gone far enough to constitute a crime. One commentator has stated the following:
“Criminal law that reflects male views and male standards imposes its judgment on men who have injured other men. It is “boys’ rules” applied to a boys’ fight. In rape, the male standard defines a crime committed against women, and male standards are used not only to judge men, but also to judge the conduct of women victims.
Delaware’s unlawful sexual intercourse statute is common to most jurisdictions. Delaware’s statute provides that one is guilty of a class A felony when the person intentionally engages in sexual intercourse “without the victim’s consent.” Sexual intercourse is defined as “[a]ny act of physical union of the genitalia or anus of [one] person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight.” Sexual intercourse is also defined as “[a]ny act of cunnilingus or fellatio, regardless of whether penetration occurs.” Cunnilingus is “any oral contact with the female genitalia.” Sexual contact is “any intentional touching of the anus, breast, buttocks or genitalia of another person, which touching, under the circumstances as viewed by a reasonable person, is sexual in nature. Sexual contact shall also include touching of those specified areas when covered by clothing.” For the woman, the physical contact of her genitalia, her clitoris, her sex organ by the penis or any object may be considered to be as violative as the penetration of her vagina.
A Practical Approach towards Redefining.
The narrow legal definition of rape, recently reiterated in the Sakshi case, has been criticized by Indian and international women’s and children’s organizations, who insist that broader interpretations are needed to protect victims, and also to serve justice. Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ‘sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.
The narrow definition of rape has been criticized by Indian and international women’s and children’s organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Their reasons have been succinctly encapsulated in a recent Public Interest Litigation before the Supreme Court in Sakshi v. Union of India :
… the interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is … contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour.
But in Sakshi, the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis – a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion. In the present case, the respondent authorities has been trying to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. But it has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Section 375/376, have been treated as offences tailing under Section 354 of the IPC as outraging the modesty of a women or under Section 377 IPC as unnatural offenses.
A plain reading of Section 375 of the IPC would make it apparent that the term “sexual intercourse’ has not been defined and is, therefore, subject to and is capable of judicial interpretation. And the Section also does not in any way limit the term penetration to mean penile/vaginal penetration. Limiting the understanding of “rape” to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 21 of the Constitution. Sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.
A purposive approach is being adopted in some of other countries so that the criminals do not go untouched on mere technicality of law. A strong reliance was also placed on some decisions of House of Lords to substantiate the contentions and the most notable being R v. R where it was held as under:
‘The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having ‘unlawful’ intercourse with a woman without her consent, the word ‘unlawful’ is to be treated as mere surplus age and not as meaning ‘outside marriage’, since it is clearly unlawful to have sexual intercourse with any woman without her consent.’
Even international law now says that rape may be accepted as “the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of use of force against the victim or a third person.” Similarly, Article 2 of the Declaration on the elimination of Violence Against Women reads as follows:
Violence against women shall be understood to encompass but not limited to … Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.
Judgments by the Australian courts reveal that insertion of objects into the victim’s vagina and anus amount to rape. The definition of rape states that sexual penetration of the body is necessary but the slightest penetration of the body of the female by the male organ is sufficient. Emphasis on the word “slightest” reveals the intent behind the definition is to give the victim and not the criminal the benefit of the doubt.
Redefining Rape
After a careful review of the rape law in vogue and an intensive deliberation with Sakshi v. Union of India , the National Commission for Women and the other organizations, the Law Commission in its 172nd report submitted to the Government of India recommended, inter alia that the law relating to ‘rape’ be made gender neutral, wider and more comprehensive to bring it in tune with the current thinking.
So the proposed re-cast Section 375 would read as :
Section 375. Sexual Assault: Sexual assault means-
(a) penetrating the vagina (this term shall include the labia majora ), the anus or urethra of any person with-
i. any part of the body of another person, or
ii. an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person so as to cause penetration of the vagina (which shall include the labia majora ), the anus or urethra of the offender by any part of the other person’s body;
(c) introducing any part of the penis of a person into the mouth of another person;
(d) engaging in cunnilinggus or fellatio; or
(e) containing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions:
First – Against the other person’s will.
Secondly – Without the other person’s consent.
Thirdly – With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt.
Fourthly – Where the other person is a female, with her consent, when the man knows that he is not the husband of such other person and that her consent is given because she believes that the offender is another man to whom she is or believes herself to be lawfully married.
Fifthly – With the consent of the other person, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that to which such other person gives consent.
Sixthly – With or without the other person’s consent, when such other person is under sixteen years of age.
Explanation: Penetration to any extent is penetration for the purpose of this section.
Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.
Conclusion.
Rape obviously is a very serious crime with severe trauma to the victim. The victims of rape are generally women. The crime of rape punishes victimizers for entering into an individual’s most private sphere. Laws punish individuals for that invasion. Entering a woman’s most private sphere does not have to include male type conduct in order for the invasion to be severely punished by law. Unlike men, women have at least two most private spheres-the clitoris and the vagina. The clitoris and the vagina are both female sex organs. The punishment for the invasion of either of those most private spheres should be identical.
The private sphere for women should be defined in women’s terms and from a woman’s perspective; otherwise, rape will continue to be a crime of violence on women by men, as defined by men. This practice permits men to continue, as they have from the beginning of history, to treat women as property. This affords men the right to touch a woman’s body, even her treasures, until she resists to the point that he understands that she is resisting. As we approach the millennium, it is time for women to say “no.” A woman’s body is not the property of a man, and he is not entitled to touch, unless he gets permission. There is no right for anyone to invade a woman’s most private sphere. The severity of the punishment is generally related to the invasion. The severity of the invasion of a woman’s body ought to be defined from a woman’s perspective of intrusiveness. Rape is the invasion of the female sex organs by a male. Including the clitoris as a female sex organ in the definition of rape reflects the woman’s perspective of intrusiveness. Consequently, because the clitoris, like the vagina, is a sex organ in which the nonconsensual invasion is so intrusive, the invasion of it, like that of the vagina, is rape.
Nevertheless, proposal for reforms of the fifteenth Law Commission seems to be a progressive gender-neutral rape law in India. The proposed section 375, replacing the present one, if enacted, will, therefore, be a mere symbolic legislative exercise. A symbolic law, embodying certain values and expressing the consensus of the society to adhere to theses values, nevertheless, undeniably generates a process of creating social consensus and consequential conditions that are conductive to mobilize such a change. The proposed reforms in the substantive rape law, therefore, would undeniably give a further momentum to the untiring efforts of women’s organizations to do away with the ‘pro-male’, ‘male-oriented’ and ‘gender’ biased’ sexual morals reflected in the Indian Law relating to rape. It, if favorably responded to, by the legislature, would not only make the substantive rape law free from the century, but would also take the rape law in a new progressive direction in the new millennium.
Posted in Criminal Law | Approach, Comparative, Constructive, India, Laws, Rape, Redefining | Leave a commentLaws Governing Extradition: A Special Reference to Abu Salem’s Extradition
More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the
latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State[1].
The purpose of extradition is to bring the individual within the requesting country’s boundaries in order to make a determination of guilt or innocence, or to impose punishment[2]. Extradition plays an important role in the international battle against crime. It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished.
Traditionally, extradition law is based on treaties. Two states typically agree in a bilateral treaty to surrender to each other fugitives charged with any offences considered extraditable under the agreement. A state seeking extradition of a fugitive (the requesting state) addresses its requests to the government of the state where the fugitive is present (the requested state), and the government invariably acts upon these requests. Domestic extradition statutes occasionally supplement substantive treaty law, but in general they merely specify extradition procedures[3].
The extradition law that developed from these beginnings assigns a major role to government officers, leaving a very restricted one for courts. The law prevents judges from inquiring into judicial and penal conditions in the requesting country and creates a pattern of judicial deference to government decisions at all levels of the process. It was after early nineteenth centuries that sovereigns began to concentrate on extradition treaties for common crimes because of the development of new, better, and quicker forms of transportation, which allowed criminals greater ability to commit crimes over a larger region[4].
2. Position in India:
In India the provisions of Indian Extradition Act, 1962, govern the extradition of a fugitive from India to a foreign country or vice-versa. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.
Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities[5].
The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant:
# Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions, which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction.
#Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.
In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.
As far as India is concern this issue is always in light because of number of cases, such as Nadeem’s extradition for involvement in Gulsan Kumar Murder case & demand of Dawood for involvement in Bombay Bomb Blast of 1992, in which we are still waiting for positive response. When one talks of extradition, quite a few names come to mind. The most tragic case was that of Rajan Pillai, who was sentenced to jail in Singapore for economic offences. He, however, took refuge in India. The Singaporean government requested his extradition. He would possibly have been sent back to Singapore, but he died under mysterious circumstances while in judicial custody in the Delhi jail. Underworld don and prime accused in the Mumbai blasts Abu Salem, who has been extradited from Portugal along with wife Monica Bedi is also a land mark in this regard.
Most of us know about the concept of extradition rightly or wrongly with respect to the cases named above but this tem paper examines one of the important aspect of extradition which is in relation with extradition of political offenders which though is not in much lime light as far as Indian Public is concern but much debated among the others as well as among intellectuals in India.
Intervening in the discussion on the draft resolution on international terrorism in the ongoing 70th Interpol Annual General Assembly at Budapest(2001)[6], the CBI-Interpol India chief, Mr. P.C. Sharma, urged member-countries to give serious
thought to putting in place certain legislation relating to extradition of wanted terrorists.
“It is not sufficient to merely locate and identify suspected terrorists. At this stage, it is imperative on all nations to demonstrate the will to help in the fight against terrorism. This can be done only by handing over the wanted persons who could be made to face fair trial and answer for the consequences of their action,”
As India has not been successful in getting criminals who have taken refuge in Western countries returned to the subcontinent, there is a growing feeling in government circles that those countries are siding with the accused.
3. Abu Salem’s extradition:
Ø 3.1 The Story:
When Abu Salem entered the US, they tipped off the Federal Bureau of Investigation (FBI), which tailed him. Abu managed to get out of the US and entered Portugal through Lisbon after rigging up his papers. They went on to tip the Lisbon authorities that immediately seized the Indian gangster. And, the tables turned. Abu Salem found himself on the receiving end and, the Mumbai police, on their part had, scores to settle with the gangster whose extradition from Portugal is shrouded with as much controversy as his role in the city’s blackest blasts[7].
The extradition of underworld don Abu Salem was a tribute to the co-ordination among the Central Bureau of Investigation, the ministry of home affairs, the ministry of external affairs and the Indian embassy in Lisbon, Portugal, and was made possible by the excellent co-operation received from the Portuguese authorities. The extradition was a landmark event for many reasons[8].
Ø 3.2 The Difficulty& The International Obligations:
There is no extradition treaty between India and Portugal. The absence of such a treaty initially created legal difficulties. Therefore this becomes an area where political considerations play a prominent role, unless there is an applicable bilateral extradition treaty.
Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can, if it wants to, take that decision without any treaty obligations whatsoever, even by exercise of executive discretion. Where there is a bilateral extradition treaty, the states party to it normally goes by its terms.
The process of extradition usually involves interposition of the Judiciary in both countries, and this has permitted the emergence of some discernible principles of international law governing extradition[9].
International law recognizes four points as a basis of exercise of criminal jurisdiction by a sovereign state, namely, territoriality (the state where the offence has been committed), nationality (the national state of the offender or the accused), the protective principle (the state whose essential economic or other interests have been directly and adversely affected by the offence), and
universality (the offence being an international crime)[10].
While these are situations largely governed by the political relations between the two countries involved, yet even a political/administrative decision to extradite or deport is likely to go before the law dispensing authorities including the judiciary in the extradition-requested state[11].
Indian government sought his extradition under the United Nations Convention on Suppression of Terrorism of 2000 under which all member nations have to help each other in the war against terrorism. Portugal and India are both signatories to the
Convention. In the meantime, the Portuguese court sentenced Salem and his girlfriend Monica Bedi to four years imprisonment for illegally entering and staying in Portugal on forged passports. The court also ordered that their extradition could be made only after they have completed their prison term. When the CBI got to know of Salem’s plea the Portuguese lawyer representing the Indian government rushed to the court to remind the judge about his previous order about extraditing the duo on completing their 4-year sentence[12].
Ø 3.3 Judicial Approach: Obligating the Extradition Agreement
The Portuguese court ordered their extradition after the Indian government, through its lawyer, gave a solemn assurance that if convicted they would not be sentenced to death. The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in vogue.
It is essential here to give a glance at the earlier decided case of Gill & Sandhu[13]. In early 1987, the government of India requested the United States to extradite Ranjit Singh Gill and Sukhminder Singh Sandhu, claiming that the two were responsible for robberies and murders committed in the Punjab, in India. Magistrate Ronald J. Hedges, however, found that he could not consider evidence of the mistreatment to which Gill and Sandhu could be subjected if returned to India.
The court stayed their release pending an appeal by the Indian government. In reaching his decision, Judge Robert J. Sweet considered four primary issues: (1) the scope of the district courts’ review of extradition proceedings; (2) the fairness of the hearing procedures; (3) the probable cause determination; and (4) the possible antipathetic treatment awaiting Gill and Sandhu in India.
Also in the case of Daya Singh Lahoria v. Union of India[14] The grievance of the petitioner Daya Singh Lahoria, in the Writ Petition is, that the Criminal Courts in the country have no jurisdiction to try in respect of offences which do not form a part of extradition judgment by virtue of which the petitioner has been brought to this country and he can be tried only for the offences mentioned in the Extradition Decree.
It was the contention of the petitioner that he cannot be tried for the offences other than the offences mentioned in the extradition order as that would be a contravention of Section 21 of the Extradition Act as well as the contravention of the provisions of the International Law and the very Charter of Extradition treaty.
Therefore in view of these it is clear that both on international law as well as the relevant statute in this country entail that a fugitive brought into this country under an Extradition Decree can be tried only for the offences mentioned in the Extradition Decree and for no other offence and the Criminal Courts of this country will have no jurisdiction to try such fugitive for any other offence.
4. Conclusion:
As per the Portuguese Constitution, no one can be extradited in respect of offences punishable by death penalty under the law of the state requesting extradition[15].
Hence, Section 34 C of the Indian Extradition Act, 1962, will be applicable which states that “notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central government.”
And therefore the laws of that foreign state do not provide for the death penalty for such an offence, such fugitive criminal shall be liable for punishment for life only for that offence.
Extradition has been defined by Oppenheim[16] as “the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed, or to have been convicted of, a crime by the State on whose territory the alleged criminal happens for the time to be.” The right to demand extradition and the duty to surrender an alleged criminal to the demanding State is created by a treaty.
As the question of surrendering an alleged criminal to the demanding State always involves the question of human rights, therefore the essence of maintaining the sanctity of the agreement (that Salem shall not be awarded death penalty) shall be
attributed to the concept of human rights involved in extradition laws, which lays emphasis on the law of the country in which the offender seems to be at the time of extradition.
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