ORIENTAL UNIVERSITY, INDORE

FACULTY OF LAW

An Assignment Report

On

“Comparative Public Law”

By
Student’s Name: Jaya Parwani
Semester - 1st
Enrollment No.: 245LWF038

Submitted To
Faculty’s Name: Prof. Pranay K. Aditya
Q.1 Compare provision related to rape between India and USA.

Millions of people are impacted by the horrible crime of rape, which results in a variety of
cultural perspectives, legal difficulties, and deeply ingrained society problems. Although both
India and the US have legislative frameworks in place to combat sexual abuse, their strategies
differ due to historical backgrounds, legal traditions, and societal norms. In-depth definitions,
legal procedures, punishments, and recent revisions are examined in this comparative study of
the laws pertaining to rape in India and the USA. Women are living in a condition of near-
constant fear of sexual assault due to the serious consequences that sexual assaults can have
and the vast number of violent sexual encounters that take place in communities around the
world. Catharine MacKinnon described rape as "an act of dominance over women that works
systematically to maintain a gender-stratified society in which women occupy a disadvantaged
status as the appropriate victims and targets of sexual aggression".

Definition of Rape

In India legal provisions regarding rape are primarily covered under Section 63 of Bharatiya
Nyaya Sanhita, 2023. It provides:
Section 63: This Section defines the term ‘Rape’. It illustrates that “A man is said to commit
“rape” if he—

o penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or
o inserts, to any extent, any object or a part of the body, not being the penis, into
the vagina, the urethra or anus of a woman or makes her to do so with him or
any other person; or
o manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so
with him or any other person; or
o applies his mouth to the vagina, anus, urethra of a woman or makes her to do so
with him or any other person,

under the circumstances falling under any of the following seven descriptions: —
 1. against her will;
2. without her consent;
3. with her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt;
4. with her consent, when the man knows that he is not her husband and that her consent
is given because she believes that he is another man to whom she is or believes herself
to be lawfully married;
5. with her consent when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent;
6. with or without her consent, when she is under eighteen years of age;
7. when she is unable to communicate consent.”1

In USA definition of rape has been defined under Article 120 of US code which provides as
follows:

• Rape- Any person subject to this chapter who commits a sexual act upon another
person by—
(1) using unlawful force against that other person;
(2) using force causing or likely to cause death or grievous bodily harm to any person;
(3) threatening or placing that other person in fear that any person will be subjected to
death, grievous bodily harm, or kidnapping;
(4) first rendering that other person unconscious; or
(5) administering to that other person by force or threat of force, or without the knowledge
or consent of that person, a drug, intoxicant, or other similar substance and thereby
substantially impairing the ability of that other person to appraise or control conduct;
is guilty of rape and shall be punished as a court-martial may direct.

Rape cases in USA

The precise percentage of women who are sexually assaulted in the US is a matter of debate
among scholars, however estimates vary from 15% to 20%. (A Justice Department study on

1
[Link]
rape in 2007 found that the prevalence was 18%; the 1995 National Violence Against Women
Survey found that the prevalence was 17.6%. In 2008, over 500 women were raped in the
United States every day. In the United States, approximately 21.8% of all rapes of female
victims are gang-related. From 1995 to 2010, the expected annual rate of female rape or sexual
assault was 58% lower, with 5.0 assaults per 1,000 women aged 12 or older, according to a
March 2013 study from the US Department of Justice's Bureau of Justice Statistics. Rape
statistics are also manipulated by US law enforcement to "create the illusion of success in
fighting violent crime," per a 2014 research. Investigation revealed that the likelihood of the
defendant being found guilty is extremely low.

Rape cases in India

Rape is the most horrible and violent crime against women. It's the fourth most common crime
in India. According to Section 375 of the Indian Penal Code, which deals with rape, assault is
defined as "having sex with a woman, despite her consent, by coercion, distorting or
misrepresentation or when she is drunk or deceived" or "when she is of poor psychological
well-being," even if the girl is younger than 18. Simply said, rape is the crime of putting a
woman in this situation without her consent, without coercion, deceit, or fear. It is typically the
unintentional forced coitus of any female, which is the entry to any of the smallest stages of
the male reproductive apparatus.

Comparison

There are some significant parallels and divergences between the rape laws of the United States
and India. Since Lord Macaulay wrote the original constitutions of both India and the United
States, the laws pertaining to rape were the same when the two nations gained their
independence because they had been united before to 1947. As a result, the legislation hasn't
changed in decades, with each document listing the number of rape sections and the
corresponding punishments of 375 and 376 under Indian Penal Code, 1860. Sections 375 and
376 of the USA Penal Code have been abolished, along with other changes to the law
throughout time. Rape-related injustice has been more prevalent in America than in India
because victims of rape are occasionally imprisoned for crimes they have never committed
before, such as adultery or other felonies.
Section 375(Sec 63 BNSS 2023) applies to the same circumstances in both nations; however,
India has two more situations. According to the Indian Penal Code, "With his consent, when,
at the time of giving such consent, he is unable to understand the nature of is unable and the
consequences thereof to which she consents, due to unsoundness of mind or intoxication, or
due to the administration by him personally of any other foolish or injurious substance."

In India, a female must be at least sixteen years old to give her consent to enter, while the legal
age is eighteen. Here, the Indian Penal Code provides more details about authorization and the
role of the labia majora in penetration. In India and the US, marital rape is illegal for anyone
under the age of eighteen (the first fifteen years of existence) and sixteen, respectively. These
are the particular ways that the rape laws of the two countries differ. Because they adhere to
explicit rules that don't cover a broad variety of situations, US court judges have more latitude
in their decisions. Therefore, it is very important to listen carefully to his interpretation of the
law. Judges in India have very little discretion in formulating verdicts because of the harsh and
prophetic rape statutes that have defined a wide range of possible situations.

According to a 2011 research that examined NISVS data, 43.9 percent of American women
had experienced sexual violence other than rape, and 19.3 percent had been raped at some time
in their [Link] offender is frequently someone the victim knows: Of the female rape victims
polled, nearly half (46.7%) stated that they had at least one acquaintance who had committed
the crime, and a comparable percentage (45.4 percent) stated that their intimate partner had
committed at least one crime.

Particularly after the 2013 IPC revisions, which were implemented in response to public outcry
over high-profile instances, India has harsh penalties for rape. Rape carries a minimum
sentence of seven years in jail and a maximum sentence of life in prison, depending on the
specifics of the case, including the victim's age or the use of severe force. Nonetheless, there is
continuous discussion on these rules' efficacy, especially with regard to their implementation.
Because different states have different legal systems, rape punishments in the USA vary greatly
from one another. Many states have mandatory minimum punishments, and sentences typically
vary from a few years to life in prison. Furthermore, several jurisdictions discriminate between
first-degree and second-degree rape, with the former carrying higher punishments,
demonstrating how important it is to classify sexual assaults in the U.S. legal system.
Both nations have made progress in changing their legal frameworks to better safeguard victims of
sexual assault. Significant changes have been made to India's legislation pertaining to sexual assaults
since the 2012 Delhi gang rape case. In order to speed up trials and lessen the anguish connected with
drawn-out legal proceedings, fast-track courts were established for rape cases. Recent changes in the
USA have included a review of university sexual assault rules, with Title IX offering a structure for
addressing claims in educational settings. Laws like "no means no" laws have also been introduced in
numerous states to improve definitions of consent and offer victim protection.

Conclusion

The laws pertaining to rape in India and the USA show both shared difficulties and distinctive
distinctions influenced by social, legal, and cultural elements. Even though both countries are
working to strengthen their legal systems and provide better assistance to victims, problems
with enforcement, social stigma, and cultural beliefs still stand in the way of advancement.
Sustained reforms and lobbying are necessary to guarantee victims' justice and to promote an
accountable and respectful culture. It is essential to comprehend these frameworks in order to
have an informed conversation on sexual assault and the continuous struggle for women's
rights.
Q.2 Compare concept of Plea Bargaining between India and USA.
Plea bargaining is the legal process by which an accused person consents to a lower sentence
or to enter a guilty plea to a lesser charge in exchange for a concession from the prosecution.
This system is intended to speed up the legal system, ease court overcrowding, and grant
defendants some leeway. Although plea bargaining is used in both India and the US, there are
several key differences between the two nations' ideas, uses, and consequences. The process of
Plea Bargaining is mostly used in the United States.

Historical context

Beginning in the early 20th century, plea bargaining has a lengthy history in the United States.
As courts attempted to handle growing caseloads, it was codified into the legal system. The
practice has been maintained by the U.S. Supreme Court, which acknowledges its function in
the criminal justice system. Important cases, such Bordenkircher v. Hayes (1978), upheld the
legality of plea agreements and emphasized that defendants had the ability to make well-
informed choices about their pleas. Plea bargaining has thus been incorporated into the
American legal system as a practical response to the demands of criminal litigation.

Plea bargaining was very recently introduced in India with the passage of the Code of Criminal
Procedure (Amendment) Act, 2005. The Indian judicial system had hitherto mostly depended
on conventional trial procedures. In order to reduce the backlog of cases in Indian courts and
provide a mechanism for speedier resolution, plea bargaining was included. Informal plea
bargains have historical roots in Indian law, but the revisions that made room for a more
structured procedure gave them official recognition.

Judicial Review Relating to Plea Bargaining

Similar to the situation in England, the idea of plea bargaining was not accepted in India before
to 2005, notwithstanding the Indian Law Commission's suggestion. To deal with this policy,
they first took a very severe stance. They believed that a crime is a crime regardless matter how
serious it is: It is wrong for society as a whole and ought to be punished by the government.
Any kind of compromise causes the legal system to become unstable, leading to a number of
issues. Consequently, the accused shouldn't be exempt from criminal prosecution. The
Supreme Court employs the same methodology in the cases :
Madan Lal Ram Chandra Daga vs State of Maharashtra2:
Here Supreme Court held that the court should not enter into a bargain with the accused to
compensate the victim. When a person commits an offense, he should be tried and punished
according to his crime. If you do wrong u will be punished. But if leniency needs to be shown
then the court may impose lighter punishment.

Murlidhar Meghraj Loya etc vs State of Maharashtra3 and Kesambhai Ardul Rehman Sheikh
vs. State of Gujarat4:
After examining the concept of Plea Bargaining, Supreme Court observed that it is against the
public policy because "it pollutes the Purity of Justice" and to avoid a criminal trial, an innocent
accused may be persuaded to plead guilty in exchange for a reduced punishment. The judge
also may get distracted from his or her obligation to do justice. Therefore, this practice
promotes corruption and collusion which may lead to the downfall of the justice system.

Object of Plea Bargaining

• It aims at lessening the pending legal proceedings.

• To downturn the number of under trial prisoners.
• To recompense and redress the victim of crimes by the accused.
• To cut delay in the disposal of criminal cases.

Plea Bargaining in the USA

The US judiciary took the necessary action despite the fact that plea bargaining was not
recognized under the sixth amendment of the US Constitution. The 1971 case of Santebello v.
New York established the legitimacy of plea bargaining in the United States. A turning point
in this particular jurisprudence came with the case of Lott v. United States, 367 US 421. In this

2 1968 AIR 1267, 1968 SCR (3) 34

3
AIR 1976 SC 1929
4
AIR 1980 SC 854
case, it was held that accepting the plea of nolo contendere, does not in itself establish the guilt
of the accused, though it is a tantamount factor in establishing the same.
The United States of America has recognized plea bargaining in a variety criminal
circumstance, with some exceptions. Some judges and jurists have observed that this
"agreement" significantly lessens the judiciary's burden. However, it has been pointed out that
coercion and making the accused choose between two evils might taint this process. In the
Brady v. United States decision, it was also mentioned that an agreement cannot be deemed
unlawful only because there is a possibility that it could be weakened by coercion.
The extent of plea bargaining in the United States is far broader than in India, where it is
allowed for nearly all federal offenses and is mostly unregulated. With the use of the evidence
and the investigation report, the prosecutor is in command of the plea negotiating process and
is the main negotiator. After verifying that the procedure is voluntary, the judge's role is
restricted to accepting the terms of the agreement. Due to their limited budgets and enormous
caseloads, these prosecutors are motivated to expedite the resolution of their cases using the
time-efficient plea negotiating process. The high stakes associated with a trial in the United
States, where the legal system leans more toward a retributive type of justice, are another factor
contributing to the prevalence of plea bargains.

Plea Bargaining in India: a sui generis concept

In our legal system, the proverb "justice delayed is justice denied" is extremely important. The
startling reality, however, is the vast number of cases that are still waiting in Indian courts,
which the general public has come to accept as their fate. Since we are aware that this idea
originated in the American legal system, we can state that our Indian legal academics and jurists
have adopted it into Indian criminal law after accounting for the delay in the administration of
justice caused by pending cases in the judiciary. "Nolo Contendere"—"I do not wish to
contend"—is the guiding idea upon which it is founded.
Plea bargaining is not a fundamental aspect of the Indian constitution; rather, it evolved in
reaction to the large number of cases that the Indian judiciary was still dealing with. This
demonstrates the evolution of the criminal justice system in India.
India allows for plea bargaining under Sections 265A to 265L of Chapter XXIA of the Code
of Criminal Procedure, 1973. This was included in a 2005 amendment to the Act, which did
not have it at first. In India, plea bargaining is only permitted in the following circumstances,
as outlined in section 265A of the CrPC:
• when seven years is the maximum penalty for the offense committed.
• No woman or child under the age of 14 should be the victim of the crime.
• where the socioeconomic status of India is unaffected in any manner by the offense
committed.

Comparison between India and USA

Although there are some significant distinctions between the two countries, plea bargaining in
India is frequently regarded as a forerunner to plea bargaining in the US.

1. In the United States of America, the accused's decision to employ the plea-bargaining
procedure is independent of the offense for which they are charged. This is not the case
in India, where plea bargaining is only permitted when the accused's accusation carries
a maximum sentence of less than seven years.

2. Plea bargaining is negotiated out of court between the prosecutor and the defendant in
the United States. But in India, the defendant must always submit an application before
this procedure can begin. The only reason for doing this is to reduce the likelihood of
duress.

3. Another distinction is that in India, the judge has the authority to determine whether the
plea-bargaining application is admissible. It may be overturned if the court determines
that the penalty offered in a plea deal is insufficient or is lessened by an unfairness
factor. In the United States of America, this is not the case.

4. In India, the plea-bargaining application process doesn't even begin until the court
certifies that the accused filled out the form freely. In the United States, it begins
following the conclusion of the prosecutor-accused negotiation.

5. In India, the victim plays an active role in the trial. If the negotiation does not reach a
satisfactory disposition, the victim can use veto power. But the victim does not play any active
role in the USA system of Plea bargaining.
 6. As the power to grant the plea is vested in the judge, therefore if he thinks that the punishment
given is not sufficient or it has been achieved by undue influence then he will set aside the plea.
But in USA legal system such things do not happen.

7. Indian lawmakers attempted to emulate the American jurisprudence's effective and

economical plea-bargaining strategy, but they failed to recognize the fundamental
elements that contributed to the plea-bargaining process's success in the United States.

8. In contrast to prosecutors in the United States, prosecutors in India play a minor role in
the investigation process because the police handle it. In this case, the magistrate makes
the choice about whether to charge the defendant; the prosecutors do not. The
prosecution's role in the plea-bargaining motion only starts after the judge has
authorized the defendant's plea-bargaining application and informed the prosecutor to
represent the state.

Conclusion

Plea bargaining is a practical strategy for handling the intricacies of criminal justice in both the
US and India. India is still adjusting to the ramifications of its recent implementation, whereas
the United States has a more well-established and widely used system. Fairness issues and
ethical dilemmas plague both systems, underscoring the necessity of continual review and
improvement. Ensuring justice, defending the rights of defendants, and preserving public
confidence in the legal system must continue to be the major priorities as both nations continue
to improve their plea-bargaining strategies.

Despite being a new idea in India, the idea of plea bargaining has changed with time. The
Indian judiciary has done a lot of the necessary work. The critiques raise an important question:
isn't it possible that justice itself would be denied in the name of expediting justice, submerging
the accused in a sea of evils. In my view, the idea of plea bargaining has been implemented
with limitations and limits in India, as opposed to the United States of America, which benefits
the system. However, some oddities still exist, and our capable legal system has mostly
addressed them.
Q.3 Concept of Public Law.

Public law refers to the body of law that governs the relationship between individuals and the
state, as well as the structure and operation of government itself. It encompasses several
subfields, including constitutional law, administrative law, criminal law, and international law,
each of which deals with different aspects of the interactions between the state, its institutions,
and its citizens. Public law is fundamental to ensuring that the state acts within its legal
boundaries, protects individual rights, and promotes the public good.

Constitutional Law

Constitutional law is perhaps the most fundamental area of public law. It defines the structure,
powers, and functions of government, outlining the rights and duties of the state and its citizens.
Every state operates under a set of rules or principles that form its constitution. In some
countries, this constitution is a single written document (e.g., the United States Constitution),
while in others, it is a combination of statutes, judicial decisions, conventions, and legal
practices (e.g., the United Kingdom’s unwritten constitution).

The central questions addressed by constitutional law include:

• Separation of powers: How power is divided among the executive, legislative, and
judicial branches of government to prevent any one branch from becoming too
powerful.
• Fundamental rights: How the constitution protects individual liberties and freedoms,
including freedom of speech, assembly, religion, and the right to due process.
• Checks and balances: Mechanisms that ensure that each branch of government can
limit the powers of the others, maintaining a balance of power.
• Federalism vs. centralization: In federal systems, like the United States, constitutional
law defines the relationship between the central government and state or provincial
governments.

Constitutional law is critical because it sets the legal framework within which all other laws
are made and enforced. It also ensures that the government remains accountable to the people,
adhering to the rule of law.
Administrative Law

Administrative law governs the actions of governmental agencies and officials. It involves the
regulation of public administration, focusing on how government agencies exercise their
powers and make decisions that affect individuals and organizations. This branch of law is
concerned with:

• Regulation: Government agencies often create regulations to implement laws passed

by the legislature. Administrative law ensures that these regulations do not exceed the
agency’s legal authority and that they are applied fairly.
• Judicial review: Courts have the power to review the actions of administrative agencies
to ensure they comply with legal standards. Judicial review can prevent abuse of power,
ensuring that agencies act within their bounds and respect individuals' rights.
• Licensing and enforcement: Administrative law is involved in the regulation of
industries, the granting of licenses, and the enforcement of standards in areas like
health, safety, and the environment.

One of the key principles in administrative law is due process, which guarantees that
individuals affected by government decisions have the opportunity to challenge or appeal those
decisions in a fair and transparent manner. Administrative law ensures that government actions
are consistent, predictable, and accountable.

Criminal Law

Criminal law is a key branch of public law that defines offenses against the state and prescribes
punishments for those who commit them. The primary function of criminal law is to maintain
public order and safety by deterring and penalizing criminal behavior. Key components of
criminal law include:

• Definition of crimes: Criminal law specifies what constitutes a crime, such as theft,
murder, or fraud. These offenses are considered harmful to society, and the state has an
interest in preventing and punishing them.
• Criminal procedure: Criminal law outlines the processes for prosecuting offenders,
from investigation and arrest to trial and sentencing. It includes rules of evidence, rights
of the accused, and protections against unfair treatment.
 • Punishment: Criminal law defines the penalties for crimes, ranging from fines and
community service to imprisonment and even the death penalty in some jurisdictions.

Criminal law is unique among the branches of public law because it focuses on actions that are
considered offenses against society as a whole, rather than against individual victims. The state,
rather than the victim, brings charges against the defendant in criminal cases, emphasizing the
public interest in maintaining order and deterring crime.

International Law

International law governs the relations between sovereign states and other international actors,
such as international organizations and multinational corporations. It includes treaties,
conventions, customary law, and principles that govern a wide range of issues, including trade,
war, human rights, and environmental protection. Some key features of international law
include:

• Treaty law: States negotiate and enter into agreements (treaties) that bind them under
international law. Examples include the United Nations Charter, the Geneva
Conventions, and the Paris Agreement on climate change.
• Customary international law: In addition to treaties, international law is shaped by
the consistent and widespread practice of states. Over time, these practices become
recognized as binding rules, even without formal treaties.
• Human rights law: One of the most significant areas of international law is the
protection of human rights. Conventions like the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights establish norms for
protecting individuals' rights across borders.
• International criminal law: This area focuses on the prosecution of individuals for
serious international crimes, such as genocide, war crimes, and crimes against
humanity. International institutions like the International Criminal Court (ICC) have
been established to prosecute such offenses.

International law is crucial in a globalized world, as it helps maintain peace, promotes

cooperation among nations, and establishes standards for dealing with transnational issues like
environmental protection, trade disputes, and human rights abuses.
Public Law vs. Private Law

One of the most important distinctions in legal systems is the division between public law and
private law. While public law governs the relationship between individuals and the state,
private law governs relationships between private individuals and entities.

The key differences are:

• Parties involved: In public law, one party is always the state or a public institution. In
private law, the parties are private individuals, businesses, or organizations.
• Purpose: Public law seeks to regulate conduct for the public good, protect the rights of
citizens, and ensure the state functions properly. Private law, on the other hand, is
primarily concerned with resolving disputes between private parties, such as contract
disputes, property disputes, or family law matters.
• Outcome: In public law, the state enforces legal standards and may impose sanctions
(fines, imprisonment) on individuals who violate the law. In private law, the court
typically awards damages or orders specific performance to resolve a dispute between
the parties.

Role of Public Law in Society

Public law plays a critical role in shaping society by regulating the actions of government and
ensuring that the power of the state is used responsibly. Some of the key roles of public law in
society include:

• Protecting individual rights: Public law, especially constitutional law and human
rights law, safeguards the rights of individuals against abuses by the state and ensures
access to justice.
• Promoting accountability: Public law mechanisms, such as judicial review in
administrative law, help ensure that government actions are transparent and
accountable to the public.
• Ensuring the rule of law: Public law provides the legal framework that governs both
government action and citizen behavior, ensuring that the state operates within the
boundaries of law and that individuals have legal recourse when their rights are
violated.
 • Maintaining social order: Through criminal law, public law helps maintain public
order, deters crime, and punishes offenders to prevent harm to society.
• Fostering international cooperation: International law promotes peace, security, and
cooperation between nations, facilitating global trade, resolving conflicts, and
addressing issues like climate change and human rights violations.

Challenges and Future Directions

While public law provides a framework for governance and justice, it faces several challenges,
particularly in the modern era:

• Globalization: As the world becomes more interconnected, international law faces

challenges in regulating global issues such as transnational crime, climate change, and
human rights.
• Technological change: Advances in technology, such as artificial intelligence and
digital surveillance, raise new questions about privacy, data protection, and the role of
government in regulating these technologies.
• Human rights: While human rights law has made significant strides, violations remain
widespread in many parts of the world. There is ongoing work to strengthen
enforcement mechanisms and promote human dignity.
• Access to justice: Despite the protections offered by public law, many individuals still
face barriers to accessing justice, especially in poorer or less developed countries.
Expanding access to legal resources and ensuring fairness in legal proceedings remain
key challenges.

Conclusion

Public law is a vital component of any legal system, ensuring that the state operates within the
confines of the law while protecting the rights and freedoms of individuals. Through its various
branches, including constitutional, administrative, criminal, and international law, public law
provides a structure for governance and resolves conflicts between the individual and the state.
Its role in safeguarding democracy, promoting social justice, and ensuring the rule of law is
indispensable to the functioning of modern societies. As the world continues to evolve, public
law will need to adapt to new challenges, ensuring that the relationship between individuals
and the state remains just, accountable, and fair.