And no one, neither the organising committee nor the government, is ready to answer questions about glaring acts of commission and omission in the feverish organising activity. The standard reply — wait till the Games are over and the investigation report thereafter. For, raising corruption issues now could dent our national pride. We will accept it.
But one wonders if our national pride is so flimsy and skin deep that it will get a fillip by building some well-laid footpaths, a few gardens, flyovers, a Metro network and renovating old stadia, which we should have done decades ago.
What about the workers? With less than two months left for the Games, they are toiling almost round-the-clock in sub-human conditions. Has the organising committee, the government and civic authorities bothered to check how most workers are being treated by their contractors? How bare-footed women are spreading crushed stone to pave the expanded roads and how their bare-bodied children play with dirt and stones on the roadside? Have the workers been provided livable accommodation with toilet facilities which a member of the organising committee would feel like using?
Identical questions arose during the run-up to Asiad 1982, which was a grand success due to the able guidance provided by a then young Congress leader, Rajiv Gandhi.
Dealing with pitiable condition of workers engaged in construction work and the government’s stubborn attitude that the contractors’ were responsible to safeguard payment of minimum wages, the Supreme Court in People’s Union for Democratic Rights vs Union of India [1982 SCC (3) 235], popularly known as Asiad case, had castigated the government.
It rejected the government’s objection that workers had not sought enforcement of their rights and hence, the PIL was not maintainable. The SC said, “The poor too have civil and political rights and rule of law is meant for them also, though today it exists only on paper and not in reality. If sugar barons and alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the dalits belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil?”
Well, there is none who is standing today for them — the faceless workers who have travelled thousands of kilometres to reach Delhi and work relentlessly to help the construction work meet the CWG deadline and save our national pride from being dented.
In the present era, when internet search engines give millions of results in seconds about India’s human development index and the corruption quotient as well as the much highlighted 9% growth rate, do we need to bring up national pride to silence questions about organising CWG 2010?
Everyone in the world knows India stands a poor 85th in the list of honest countries. It was 72nd in 2007 and slid to 85th in 2008. It would be interesting to watch our position after the Commonwealth Games.
A recent Oxford University study used multi-dimensional poverty index — child mortality, nutrition, access to clean drinking water, sanitation, cooking fuel, electricity and years of schooling and child enrolment — to find that more than half of India’s population lived in poverty. These statistics, after 60 years of independence, do hurt our national pride.
Does the CWG organising committee expect all athletes and officials coming from various countries to merely arrive in Delhi, appreciate its beauty, participate in the Games and go back to their homes? What if they ask a guide about starvation deaths, farmers’ suicide and the communal riots in Delhi, Mumbai and Gujarat? Will it not hurt our national pride?
Existing Penalties under Indian Penal Code:
Sections 299-304: Penalizes any person guilty of murder and culpable homicide not amounting to murder. The punishment for murder is life sentence or death and fine. The punishment for culpable homicide not amounting to murder is life imprisonment or imprisonment for upto 10 years and fine.
Section 307: Penalizes attempt to murder with imprisonment for upto 10 years and a fine. If a person is hurt, the penalty can extend to life imprisonment.
Section 308: Penalizes attempt to commit culpable homicide by imprisonment for upto 3 years or with fine or with both. If it causes hurt, the person shall be imprisoned for upto 7 years or fined or both.
Section 120A and B: Penalizes any person who is a party to a criminal conspiracy.
Sections 107-116: Penalizes persons for abetment of offences including murder and culpable homicide.
Section 34 and 35: Penalizes criminal acts done by several persons in furtherance of common intention.
Section 300: introduce “fifthly” clause to Section 300 of IPC which at present defines “murder” under four categories. The additional definition would make khap-dictated honour killings a distinct offence and make all those who participate in the decision liable to be tried for the main charge, that is murder, and liable maximum penalty, death.
Arguments favoring new law
Making the crime of honour killing a separate offence would help bring more clarity for law enforcement agencies.
One of the proposals is to amend the Indian Evidence Act to put the burden of proof on the accused. Thus, the khap panchayat or the family members would be responsible for proving their innocence.
There would be joint liability under the proposed new law. The khap panchayat (or any group ordering honour killings and the person who carries out the killing would be jointly liable for punishment.
Presently there is no definition of Honour Killing/ crime or clarity.
Since Honour Killings /Honour crimes are not separate crime and hence we don’t have any data.
Protection powers to the magistrate at the District level
New law will provide mandate for special police cell in each district to provide protection to couples.
New law comes with a institutional machinery and the required coordination of all stakeholders. It will also mandate the different state government and the Centre to work on sensitization of the law enforcement agencies. The new law will mandate social initiatives and awareness to curb such violence through social means.
Honour crimes should include all the crimes against women which are perpetrated by the community. There are many cases of women being branded witches, paraded naked, tortured in public which are very heinous offences of honour and hence need to be strengthened by a special law and to have stringent punishments.
Having a special law can be deterrent.
Relaxation in the Special Marriages Act
The present procedure of getting a marriage registered is a long process. The complete process takes about 45 days. During this period a couple may be vulnerable. Steps need to be taken to simplify the registration process.
Arguments against new law
The existing penalty for the offence of murder is sufficient if they are implemented strictly and effectively.
A new set of laws would not deter honour killings because the basic issue is social sanction for acts committed to curtail same gotra marriage, inter-caste marriage, inter-religion marriage.
Need for creating awareness among traditional communities through education.
Holding khap panchayats collectively accountable can be detrimental to members who do not support such killing. Also, it could be misused for vindictive agendas.
By Ravi Kant , Advocate Supreme Court of India and President Shakti Vahini
All forms of gender based violence, “crimes of honour” deprive women of the right to life, liberty and security of person, the right to be free from torture or cruel, inhuman or degrading treatment or punishment, right to equality in the family and the right to the highest attainable standard of physical and mental health. In the broader context of patriarchal principles motivating “crimes of honour”, India is obligated as a state party to ensure that all discrimination against women in matters relating to marriage and family relations are eliminated, providing them with the same right to enter into marriage and to freely choose a spouse and to enter into marriage only with their free and full consent .This includes ensuring that informal decision making bodies operating on customary laws, such as the khap panchayat, are refrained from enforcing their dicta, and interfering with the right of women to choose their spouse.
India, as a state party to CEDAW has the legally binding obligation to “eliminate discrimination against women by any person, organization or enterprise,” as enumerated in article 2e. State parties have to take appropriate measures to eliminate prejudices and customary practices, such as “crimes of honour”, “which are based on the idea of the inferiority or the superiority of either of the sexes,” as enumerated in article 2e. Creating statutes that criminalize the different types of acts that fall within the ambit of “crimes of honour”, while essential, is certainly not adequate if there is no systematic enforcement of the statutes. Active prosecutions are one of the means to achieve the practical realization of eliminating discriminatory principles such as “crimes of honour”, in order to ensure that state parties meet their obligations to “take all appropriate measures to eliminate discrimination against women [article 2]. Taking preventative measures, such as promoting gender sensitization and initiatives on combating dated patriarchal notions, are also necessary to eliminate discrimination against women.
|INDIAS NATIONAL COMMITMENT|
|Article 14 , Constitution of India||The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.|
|Article 15(1) , Constitution of India||The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.|
|Article 15(3) , Constitution of India||Nothing in this article shall prevent the State from making any special provision for women and children.|
|Article 21 , Constitution of India||No person shall be deprived of his life or personal liberty except according to procedure established by law.|
|Convention on the Elimination of All Forms of Discrimination against Women (1981)||Article 2
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
|Convention on the Elimination of All Forms of Discrimination against Women (1981)||General Recommendation No. 195 that “discrimination” includes “gender based violence …. that is directed against a woman because she is a woman or that affects women disproportionately.”
Gender based violence includes “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”
The Committee advises that traditional, patriarchal and archaic views that subordinate women to men contribute to gender based violence. These socially constructed gender based stereotypes legitimize and “justify gender-based violence as a form of protection or control of women.” “Crimes of honour”, including fatwaas, “honour killings,” rape, beatings and torture, forced separation and divorce, extortion and displacement, that are specifically and disproportionately targeted towards woman, are similarly justified as means to control women.
|Commission on Human Rights||In its resolution 2000/31 on extrajudicial, summary or arbitrary executions, the Commission on Human Rights expressed concern at the large number of killings committed in the name of passion or in the name of honour reported by the Special Rapporteur, and called upon Governments to investigate such killings promptly and thoroughly; to bring those responsible to justice; and to ensure that such killings were neither condoned nor sanctioned by government officials or personnel. The Commission adopted similar resolutions in 2001 (resolution 2001/45) and 2002 (resolution 2002/36). In its resolution 2000/45 on the elimination of violence against women, the Commission defined the term “violence against women” as any act of gender-based violence that resulted in or is likely to result in physical, sexual or psychological harm or suffering to women, including crimes committed in the name of honour and crimes committed in the name of passion, and called upon States to condemn violence against women and not to invoke custom, tradition or practices in the name of religion to avoid their obligations to eliminate such violence. The Commission adopted similar resolutions in 2001 (resolution 2001/49) and 2002 (resolution 2002/52).
|Subcommission on the Promotion and Protection of Human Rights (former Sub commission on Prevention of Discrimination and Protection of Minorities)
|The Subcommission addressed crimes of honour in its resolutions 2000/10 and 2001/13 on traditional practices affecting the health of women and the girl child,3 in which it shared the concerns of the Special Rapporteur of the Subcommission on traditional practices affecting the health of women and the girl child about the perpetuation of certain harmful traditional practices, including crimes of honour, and appealed to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning the harmful effects of all forms of harmful traditional practices, in particular through education, information and training, in order
Attention has been drawn, particularly in recent years, to the issue of crimes against women committed in the name of honour at the international and national levels, and the issue has been addressed by intergovernmental and expert bodies within the United Nations system, and some measures have been taken by Member States to eliminate such acts.
|International Covenant on Civil and Political Rights .||As a member to this covenant the Union of India is mandated to provide to all its citizens the rights guaranteed under the following articles :
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
|Universal Declaration of Human Rights||The Union of India as a member to the Universal Declaration of Human Rights has an obligation to protect the lives, rights and liberty of individuals and protect them from such heinous crimes. The Universal declaration of Human Rights under Article 16 guarantees the following:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
SUPREME COURT /HIGH COURT JUDGEMENTSJUDGEMENTS ON CRIMES OF HONOUR
WRIT OF HABEAS CORPUS ISSUES NOT ONLY FOR RELEASE FROM DETENTION BY THE STATE BUT ALSO FROM PRIVATE DETENTION / BEFORE THE COURT ACEDES TO THE REQUEST OF HUSBAND TO REGAIN CUSTODY HE NEEDS TO PROVE THE VALIDITY OF HIS MARRIAGE
MOHD. IKRAM HUSSAIN Vs. STATE OF U.P. & OTHERS AIR 1964 SC 1625
A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent. Hence the order of the High Court was not without jurisdiction. However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law. In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under s. 100 of the Code of Criminal Procedure is always used. There is also the remedy of a civil suit for restitution of conjugal rights. In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a a clear case. That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman. Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place.
SUPREME COURT CALLS FOR COMPENSATION FOR ILLEGAL CONFINEMENT BY THE POLICE AT THE BEHEST OF GIRLS FAMILY IN A CASE OF CONTETIOUS INTERCASTE MARRIAGE / OPRDERS DISTRICT JUDGE TO FILE STATUS REPORT.
SUPREME COURT ORDERS COMPENSATION ON ILLEGAL CONFINEMENT, TORTURE AND HARRASMENT OF GIRL AND HER INLAWS ON THE BEHEST OF GIRLS FAMILY IN A CASE OF INTER CASTE MARRIAGE
ARVINDER SINGH BAGGA V. STATE IF U.P AIR 1995 SC 117
The Judgment of the Court was delivered by S. MOHAN, J.-
We have carefully perused the report. We are appreciative of the good work done by the learned District Judge. He had held a thorough inquiry by examining several witnesses to arrive at the truth. In our considered opinion the report is a fair one and deserves to be accepted. It is accordingly accepted.
The report in no uncertain terms indicts the police. It inter alia states:
“On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24/25/26-7-1993. On 24-7-1993 she was pressurised by J.C. Upadhyay SHO, Sukhpal Singh SSI and Narendrapal Singh SI and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused, her family members were brought in to pressurise her into implicating them. On 25-7-1993 she was jolted out of sleep by Sukhpal Singh SSI and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted her on her leg with danda and poked it in her stomach. She did not yield to the pressure. Then, on 26-7-1993 567 she was given filthy abuses and threatened by J.C. Upadhyay and Sukhpal Singh for writing a dictated note. She was pushed and jostled by them both. Sukhpal Singh SSI hit her with a danda on her leg and made threatening gestures aiming his danda on her head. Ultimately they both succeeded in making her write a note dictated by them whose contents were those which were incorporated by the investigating officer in his case diary as her statement under Section 161 CrPC. Thereafter on 27th July she was purported to be taken by K.C. Tyagi to the Court for the recording of her statement under Section 164 CrPC but was taken by J.C. Upadhyay SHO to Chauki Chauraha Police Outpost and kept there and brought to the police station and kept there. She was despatched from there to Nari Niketan only at 5 p.m. When ACJM 11 had passed orders for Nidhi being kept at Nari Niketan, Bareilly, K.C. Tyagi 10 was under obligation to take her from court to Nari Niketan straightway without any delay whatsoever but she was brought back to the police station and lodged there and only afterwards she was despatched from there for Nari Niketan. Then on 29-7-1993 while being taken to the court for the recording of her statement under Section 164 CrPC Nidhi was brought from Nari Niketan to the police station and there J.C. Upadhyay SHO commanded her to speak that which he had asked her to speak and if she did not make her statement accordingly and went with Charanjit Singh then she would not be spared by him and he would ensure that she underwent miserable lifetime.
He further told her that if she cultivated enmity with the police its consequences were only too obvious. So the torture extended uptil 29-7-1993. Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave.” This clearly brings out not only high-handedness of the police but also uncivilised behaviour on their part. It is difficult to understand why Sukhpal Singh SSI assaulted Nidhi on her leg with danda and poked it in her stomach.
Where was the need to threaten her? As rightly pointed out in the report that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to make her submit to the demands of the police? 5. A further reading of the report shows:
(ii) illegal arrest;
(iii) without personal knowledge or credible information that the arrested persons were involved in a cognizable offence; and
(iv)illegality of verbal order of arrest not contemplated under Section 55 CrPC.
This again is a blatant abuse of law.
The report clearly holds Narendrapal Singh SI of indulging in illegal arrest and detention in arresting Charanjit Singh Bagga and Rajinder Singh Bagga. Further, both of them were tortured as they were given danda blows at police station on 23-7-1993. The report blames J.C.Upadhyay SHO and K.C. Tyagi 10 for the wrongful detention of Nidhi. It concludes:
“The detention of a married woman in custody who is not an accused on the pretext of her being a victim of abduction and rape which never was to her knowledge and to the knowledge of the police officers concerned aforesaid is itself a great mental torture for her which cannot be compensated later but here we have found that she was tortured otherwise also by threats of violence to her and to her husband and his family and was given physical violence calculated to instil fear in her mind and compel her to yield and to abandon her marriage with Charanjit Singh Bagga which had been duly performed in Arya Samaj Bhoor and which had been duly registered in the office of Registrar of Hindu Marriages under the U.P. Hindu Marriage Registration Rules, 1973 framed by the Governor in exercise of the powers conferred by Section 8 of the Hindu Marriage Act, 1955 (Act No. XXV of 1955). She was made to write a statement as commanded by J.C. Upadhyay SHO and Sukhpal Singh SSI on 26-7- 1993 which was reproduced by the 10 in the case diary as her statement under Section 161 CrPC. The physical and mental torture was given to Nidhi on 24-7-1993 and 25-7-1993 by J.C. Upadhyay SHO, Sukhpal Singh and SSI and Narendrapal Singh SI but on 26-7-1993 it was done by only J.C. Upadhyay SHO and Sukhpal Singh SSI and there was no participation of K.C. Tyagi in the torture and harassment dated 24-7-1993, 25-7-1993 and 26-7-1993.”
On a perusal of all the above, we are really pained to note that such things should happen in a country which is still governed by the rule of law. We cannot but express our strong displeasure and disapproval of the conduct of the police officers concerned. Therefore, we issue the following directions:
1.The State of Uttar Pradesh will take immediate steps to launch prosecution against all the police officers involved in this sordid affair.
2. The State shall pay a compensation of Rs 10,000 to Nidhi, Rs 10,000 to Charanjit Singh Bagga and Rs 5000 to each of the other persons who were illegally detained and humiliated for no fault of theirs. Time for making payment will be three months from the date of this judgment. Upon such payment it will be open to the State to recover personally the amount of compensation from the police officers concerned.
Writ petition shall stand disposed of in view of the above terms.
JAMSHED AND ANOTHER VS STATE OF UTTAR PRADESH AND ORS
Gulshan Jahan had married Jamshed in the presence of witnesses and claimed to be major. However her father filed an FIR stating that she was a minor (14) and had been kidnapped by Jamshed. The High Court had to consider Gulshans disputed marriage and thereafter establish wether she was with Jamshed of her own sweet will. Medical examination established she was above 18 and the detention was illegal. Accordingly the court held that since Gulshan Jahan stated she had married Jamshed of her own choice and that the guardianship of her father had ceased the day she became a major and since both Gulshan and Jamshed were major the law did not prohibit them for loving each other They had to live therir lives with dignity and honour and make their life meaningful. The court also noted their right to privacy, to protection of life and personal liberty under Article 21 of the constitution.
JYOTI ALIAS JANNAT AND ANOTHER VS STATE OF UP AND OTHERS
According to Indian Majority Act 1875 a person who is 18 years of age is a major vide section 3 of the Act. The law deems that a major understands his / her welfare. Hence a major can go wherever he /she likes and live with anybody. India is a free, democratic, welfare country. Hence if a person is major even parents cannot interfere with that individual. Once a person becomes a major that person cannot be restrained from going anywhere and live with anyone. Individual liberty under Article 21 has the highest place in the constitution.
SHIV KUMAR GUPTA ALIAS RAJU VS STATE OF UP AND ORS 1999 LUCKNOW LAW REPORTER JOURNAL
Rani Gupta moved the court claiming her father was forcing her to marry a boy she disliked. Of her own free will she entered into marriage with a person of her choice. The Court accepted that she was a major and Rani was given the opportunity of making her statement to the court on her choice. The court stayed the arrest of her husband stating that the personal liberty of Rani Gupta should not be interfered with.
JOGINDER KUMAR V STATE OF UTTAR PRADESH AIR 1994 SC 1349
The Supreme Court in this case laid down guiding principles on the law of arrest.
In India, Third Report of the National Police Commission at p. 32 also suggested:
“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines……” The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
REGISTRATION OF MARRIAGES MADE MANDATORY
SMT SEEMA VS ASHWANI KUMAR Transfer Petition (civil) 291 of 2005 /Supreme Court
In the affidavit filed on behalf of the National Commission for Women (in short the ’National Commission’) it has been indicated as follows:
“That the Commission is of the opinion that non-registration of marriages affects the most and hence has since its inception supported the proposal for legislation on compulsory registration of marriages. Such a law would be of critical importance to various women related issues such as:
(a) prevention of child marriages and to ensure minimum age of marriage.
(b) prevention of marriages without the consent of the parties.
(c) Check illegal bigamy/polygamy
(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.
(e) Enabling widows to claim their inheritance rights and other benefits and privileges which they are entitled to after the death of their husband.
(f) Deterring men from deserting women after marriage.
(g) Deterring parents/guardians from selling daughters/young girls to any person including a foreigner, under the garb of marriage.”
As noted supra, except four statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh registration of marriages is not compulsory in any of the other States. As is evident from narration of facts though most of the States have framed rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable. The legislative intent in enacting Section 8 of the Hindu Act is apparent from the use of the expression “for the purpose of facilitating the proof of Hindu Marriages”. As a natural consequence, the effect of non registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered.
Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.
Accordingly, we direct the States and the Central Government to take the following steps:
(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.
(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.
Needless to add that the object of the said Rules shall be to carry out the directions of this Court.
(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.
LATA SINGH CASE (2006)
Writ Petition (Crl.) 208 of 2004
This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband’s relatives.
We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner’s brothers who were only furious because the petitioner married outside her caste.
We are distressed to note that instead of taking action against the petitioner’s brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner’s husband and his relatives. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.
The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.
This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or intereligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner’s husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.
We further direct that in view of the allegations in the petition (set out above) criminal proceedings shall be instituted forthwith by the concerned authorities against the petitioner’s brothers and others involved in accordance with law. Petition allowed.
PRADEEP KUMAR SINGH VS STATE OF HARYANA 2008(3) RCR (Criminal) 376
In this case the High Court laid down the law to decide on complaints against the boy by the girl parents in the case of runaway couple:
In this case, a large number of cases of run away couples were decided by this Court with the following directions:
(i)Whenever any intimation is received by the SSP/SP of concerned District regarding the marriage of a young couple with a threat and an apprehension of infringement of the right of life and liberty by the police at the instance of the family members of one of the spouses, the SSP/SP concerned will consider the representation and will himself/herself look into the matter and issue necessary directions to maintain a record of the said intimation under Chapter 21 of the Punjab Police Rules.
(ii) On receipt of above said intimation of marriage by any police officer, necessary directions will be issued to the concerned Police Station to take necessary steps in accordance with law to enquire into the matter by contracting the parents of both boy and girl. The matter regarding age, consent of the girl and grievance of her family will be determined. In the eventuality of any complaint of kidnapping or abduction having been received from any of the family members of the girl generally the boy (husband) will not be arrested unless and until the prejudicial statement is given by the girl (wife). Arrest should generally be deferred or avoided on the immediate receipt of a complaint by the parents or family members of the girl taking into consideration the law laid down by Hon’ble Supreme Court in Joginder Kumar’s case (supra);
(iii)If the girl is major (above 18 years), she should not forcibly be taken away by police to be handed over to her parents against her consent. Criminal force against the boy should also be avoided.
(iv)So far as the threat to the young couple of the criminal force and assault at the hands of the private persons is concerned, it would always be open to the police to initiate action if any substantive offence is found to have been committed against the couple;
(v)In case of any threat to the breach of peace at the hands of the family members of the couple it will always be open to the State authorities to take up the security proceedings in accordance with law;
(vi)It will not be open to the “run away couple” to take law in their hands pursuant to the indulgence shown by the police on the basis of their representation sent to the SSP/SP of the concerned District;
(vii)If despite the intimation having been sent to the SSP/SP there is an apprehension or threat of violation of right of personal life and liberty or free movement, the remedy of approaching the High court should be the last resort;
(viii)In case there is an authority constituted for issuance of marriage certificate as per the law laid down by Supreme Court in Seema’s case (supra) in the concerned districts, the couple of so called `run away marriage’ should get the marriage registered in compliance with the directions of the Supreme Court and a copy of the same should also be forwarded to the police along with the representations or any time subsequent thereto.
(ix)Nothing said here-in-above will prevent the immediate arrest of a person who fraudulently entices a girl with false promises and exploits her sexually as per the statement of the girl.”
AMINDER KAUR VS STATE OF PUNJAB AND ORS CRM-M 29790 of 2009 (O&M)
The Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnisation of child marriages.However, subsequently it was amended in 1949 and 1978 in order to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint Act, 1929 though restrains solemnisation of child marriages yet it did not declare them to be void or invalid. Since there was a hue and cry in the Society to prevent and provide more deterrent solutions by making stringent provisions to eradicate the evil practice of solemnisation of child marriages, the present Act i.e. The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. The relevant provisions of the Act are as under :
Definitions – In this Act, unless the context otherwise requires-
(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;
(b) “child marriage” means a marriage to which either of the contracting parties is a child;
(f) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.”
9. Punishment for male adult marrying a child – Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.
10.Punishment for solemnising a child marriage – Whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
11.Punishment for promoting or permitting solemnization of child marriages –
(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend upto one lakh rupees.
12.Marriage of a minor child to be void in certain circumstances – Where a child, being a minor – (a) is taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,
Interestingly the question that has been raised by the counsel for respondent No.4 was conspicuous by its absence in all the judgments which have been cited by the learned counsel for the petitioners. Therefore, the questions which arise for consideration of this Court are :
(i)In a case of run away marriage where the girl is admittedly minor, who has been enticed away from the lawful keeping of a guardian by her alleged husband against whom a case under
Sections 363/366-A IPC is also registered, whether such a marriage is void in terms of Section 12 of the Act?
(ii)Whether the persons who are in someway party to the such child marriage, are also liable for punishment under Sections 10 and 11 of the Act?
(iii)Whether a person who has enticed/taken away minor from the keeping of lawful guardian and against whom a case under the provisions of IPC has already been registered can claim police protection in the name of his life and liberty?
In this case the facts are not in dispute. Petitioner No.1 was a minor girl being 16 years and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act, 1875 every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. According to Section 2 (f) of the Act “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. According to Section 2 (a) of the Act, “child” means a person, who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age and according to Section 2 (b) of the Act, “child marriage” means a marriage to which either of the contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No.1 which falls within the definition of child and within the definition of minor being the age of 16 years and 2 months who has been enticed away out of the keeping of the lawful guardian cannot contract the marriage and her marriage shall be null and void.In view of those provisions, I have no other choice but to hold that marriage of petitioners No.1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate (Annexure P-1 undated) as void marriage and none of the judgments which have been cited by the learned counsel for the petitioners in support of their case, is applicable to the facts and circumstances of the present case because in the case of Ravi Kumar (supra), the Division Bench had considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of violation of 5 (iii) of the Act of 1955, the punishment is only 15 days simple imprisonment with fine of Rs.1000/- or both but the marriage is not illegal or void. However, much water has flown thereafter and now for the contravention of Section 5(iii)of the Act of 1955, the punishment under Section 18 (a) has been enhanced to 2 years rigorous imprisonment and/or with fine upto Rs.1 lac or with both. Moreover, the case of Ravi Kumar (supra) was decided on 5.10.2005. At that time, the Act was not in force as it did not receive the accent of President of India and has been notified w.e.f 1.11.2007. Therefore, the learned counsel for the petitioners cannot take the advantage of the observations made in the case of Ravi Kumar (supra). Insofar as the case of Ridhwana and another (supra) is concerned, in that case also this Court had prima-facie found that there is evidence collected by the police that girl was more than 18 years of age but still while parting with the judgment for the sake of argument, it was decided that even if girl is 16 years and 2 months age and has married with her own sweet will, no offence is said to have been committed. This Court had no occasion to refer to the provisions of Section 12 of the Act. Therefore, the ratio laid down in these cases is not applicable. The case of Lata Singh (supra) itself talks about the persons who were major at that time when they got married and on that premise, it was held that if the persons are major and have got married on their own, their life and liberty should not be threatened by the persons who are against their marriage. Hence, the said judgment is also of no help to the present petitioners. In the case of Pardeep Kumar Singh (supra) this Court had laid down as many as nine directions but in none of the directions it has been provided that if the girl is minor and has been enticed away for the purpose of marriage by alleged husband, the said marriage is valid. Hence, I have found that provisions of Section 12 of the Act would apply with full rigour in the present case and the marriage which has been solemnised by petitioner No.2 with petitioner No.1, who is child and a minor, is unsustainable in the eyes of law and is thus, declared as void. The second question involved in this case is that whether the persons, who have performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No.1, is also equally liable and for that purpose, I direct the state to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take the benefit of the constitutional remedy of protection of their life and liberty on the pretext of their void marriage. The life and liberty of petitioners No.1 and 2 is only endangered and is being threatened by respondent No.4 so long their marriage legally subsists but once their marriage is declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/parents and a case has been registered under Sections 363/366-A IPC, no protection under Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to be granted to a fugitive of law.
FIAZ AHMED AHANGER AND ORS VS STATE OF JAND K 2009 (3) RAJ 692
“In such cases of inter-caste or inter religion marriage the Court has only to be satisfied about two things:
(1) That the girl is above 18 yeas of age, in which case, the law regards her as a major vide Section 3 of the Indian Majority Act, 1875. A major is deemed by the law to know what is in his or her welfare.
(2) The wish of the girl.
In the circumstances, we direct that nobody will harass, threaten or commit any acts of violence or other unlawful act on the petitioner, Chanchali Devi/Mehvesh Anjum and the petitioner’ family members and they shall not be arrested till further orders in connection with the case in question. If they feel insecure, they can apply to the police and, in such event, the police shall grant protection to them.”
The Supreme Court has slammed the Government for clubbing housewives with prostitutes, beggars and prisoners in the Census and describing them as economically non-productive workers. The court described as “totally insensitive” and “callous” the approach of the statutory authorities in equating women, who are homemakers, with such segments, saying it was indicative of a strong gender bias against women. The court asked the Parliament to revisit the Motor Vehicle Act to ensure that whenever a housewife dies, suitable compensation is awarded to the family members, to avoid gender bias.
In separate but concurrent judgements, the Bench also suggested amendments to the Matrimonial Laws to give the women their due status in the society. “This bias is shockingly prevalent in the work of Census. In the Census of 2001 it appears that those who are doing household duties like cooking, cleaning of utensils, looking after children, fetching water, collecting firewood have been categorized as non-workers and equated with beggars, prostitutes and prisoners who, according to the Census, are not engaged in economically productive work. “As a result of such categorization about 36 crores (367 million) women in India have been classified in the Census of India, 2001 as non-workers and placed in the category of beggars, prostitutes and prisoners,” the apex court observed.
A Bench of Justices G.S. Singhvi and A.K. Ganguly upheld the appeal of an aggrieved husband Arun Kumar Aggarwal challenging the meagre compensation awarded by the Motor Accidents Tribunal and the Allahabad High Court, for the death of his wife Renu in a road accident. Though under the Motor Vehicles Act’s structured formula, the family was entitled to a compensation of Rs. 6 lakh, the Tribunal reduced the compensation to just Rs. 2.5 lakh on the ground that Renu was only a housewife and hence the “loss of dependency” did not deserve such a high amount. The Tribunal passed the order despite the plea of the husband that his wife was engaged in part-time painting and earning Rs 50,000 per month and the family had suffered immense loss of emotional support, love and affection of the deceased.
The High Court concurred with the Tribunal’s findings, upon which the husband appealed in the apex court. Disagreeing with the two courts’ view, the Bench said, “the gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others.“A wife/mother does not work by the clock. She is in constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer’s work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life,” the apex court said.
BY DIVYA VIKRAM
“Injustice anywhere is threat to justice everywhere.” – Martin Luther King, Jr.
The practice of torture has been widespread and predominant in India since time immemorial. Unchallenged and unopposed, it has become a ‘normal’ and ‘legitimate’ practice all over. In the name of investigating crimes, extracting confessions and punishing individuals by the law enforcement agencies, torture is inflicted not upon the accused, but also on bona fide petitioners, complainants or informants amounting to cruel, inhuman and degrading treatment, grossly derogatory to the dignity of the human person. Torture is also inflicted on the women and girls in the form of custodial rape, molestation and other forms of sexual harassment.
In this paper, the researcher aims at looking at the various international instruments as well as the role of Indian legislature and judiciary to prevent the evil of torture.
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
Article 5 of the UDHR, 1948 proclaims that “No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.” Following the spirit of Universal Declaration, India proclaimed its faith in fundamental freedoms in the Indian Constitution which provides for life and dignity and honour as incorporated in the preamble and in the chapter on Fundamental Rights. The Constitution has entrusted the work of protecting fundamental freedoms to Indian Judiciary. Therefore, the judiciary has the prime obligation to be utmost careful and to resist even the slightest intrusion into its domain in safeguarding the human dignity which our founding fathers have so passionately granted to us.
Article 5 of UDHR incorporated the right to protection against torture and the same has been sought to be achieved through Declaration of Fifth United Nations Congress held in 1975. INTERNATIONAL COVENANT ON CIVIL AND POLITICIAL RIGHTS (ICCPR)
Article 7 of the ICCPR Covenant provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment.
The first sentence of Article 7 of ICCPR reproduces Article 5 of UDHR. Article 7 cannot be derogated from in any circumstances not even during public emergency. This section shows the concern of the international community to defend and preserve the physical and moral integrity of human beings. The purpose of this article is to protect the integrity and dignity of the individuals. It is the responsibility of the Human Rights Committee under Article 40(4) of ICCPR for implementation of these rights. The Human Rights Committee adopted in 1982, general comments on Article 7 of the Covenant, after examining reports submitted by State parties. Committee observed that even in situations of public emergency as envisaged in Article 4(1) of the Covenant, this provision is non- derogable. The Committee though it said that Article 7 has a wide scope of application, it refrained from defining or providing clear criteria for application of this section.
Particular forms of punishments and practices which have attracted the attention of Committee members have been “certain interrogation methods, the evidential use of illegally obtained information, virginity testing of immigrants, treatment of so-called ‘blanket people’ in Northern Ireland, stoning, flogging, whipping 30-40 years’ rigorous imprisonment, loss of nationality, and deprivation of civil and political rights for extended periods”.
The Human Rights Committee has expanded the meaning of torture by including corporal punishment including excessive chastisement as an educational or disciplinary method. Article 7 clearly protects not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions.
UNITED NATIONS INSTRUMENT DEALING WITH TORTURE
The process of legal codification against torture eventually culminated in The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (CAT) (resolution 39/46), which was adopted by the UN General Assembly on Dec 10th, 1984.The objective of this Convention is to prevent acts of torture and other acts prohibited under this convention. Article 1 of the Convention defines “torture”.
Significant features of the Convention
The Covention requires state parties to take effective measures to prevent acts of torture in any territory under their jurisdiction. Article 2 of the Convention says that torture cannot be justified even during war or public emergency.
Article 3 of the Convention forbids State parties to expel, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The Convention also requires States to ensure that all acts of torture, attempts to commit torture or participation in torture are offence punishable under criminal law of their states (provided in Art 4 of the Convention). It also provides for prosecution or extradition of persons alleged to have committed acts of torture.
The implementation of the Convention is monitored by a “Committee against Torture”, consisting of 10 experts, elected by the States parties to the Convention and serving in their personal capacity. State parties to the Convention are required to report regularly to the Committee on measures they have taken to give effect to the provisions of the Convention. The Committee considers such reports, makes general comments and inform the other state parties and General Assembly of its activity. The Committee also allows for individual complaints under Art 22, provided state has made declaration accepting the treaty bodies’ competence to accept complaints and local remedies have been exhausted.
India has signed the Convention against torture but not ratified it. Also India has made reservations against Art20 & Art22 of the Convention.
The UN General Assembly adopted Optional Protocol to CAT in December 2002. This optional protocol has created a sub committee and allows in-country inspections of places of detention to be undertaken in collaboration with national institutions.
Article 3 European Convention which deals with torture says, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This provision cannot be derogable under Article 15(2).
“Torture”- The European Commission has defined ‘torture’ to mean, inhuman treatment having a purpose such as obtain information or confession, or infliction of punishment and it is generally an aggravated form of inhuman treatment. By “inhuman treatment”, Committee said it is a deliberate treatment which causes severe suffering- mental or physical, which in the particular situation is unjustified.
“Degrading Treatment”- The Commission considered degrading treatment as: ‘treatment or punishment of an individual is degrading if it grossly humiliates him before others or drives him to act against his will or conscience.’ This definition was followed and expanded later by the Commission in East African Asians v. Uniked Kingdom (4430/70, E.,H.R.R 76) where it said that degrading treatment was a conduct of certain level of severity which lowers victim in rank, position, reputation or character whether in his own or eyes of others. These definitions have been explained by the Court in Tyrer case, in which Court observed that the first element of serious humiliation was whether the conduct was degrading. In Campbell and Cosans, the Court observed that a threat directed to an exceptionally insensitive person may have no significant effect on him but nevertheless be incontrovertibly degrading; and conversely an exceptionally sensitive person might be deeply affected by a threat that could be described as degrading only by ordinary and unusual meaning of the word.
INDIA’s RESPONSE TO TORTURE
Article 7 of the ICCPR is reflected in Article 21 of the Indian Constitution which is a non- derogable right. Article 21 was a derogable right until the 44th Amendment to the Constitution, 1978. It includes right against torture and assault by State or other functionaries. This right is even available to foreign citizens, under-trials, prisoners and detenues in custody. In recent times there is an increasing concern of the international community about the practice of torture of prisoners and detenues. Torture is a well established tool used by the Indian Police for investigation.
In tune with international human rights instruments against torture, the Constitution also emphasizes respect and honour of human dignity and fundamental rights. Torture has not been defined in the Constitution or in other penal laws. Article 21 of Constitutional only provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Life or personal liberty has been held to include the right to live with human dignity and includes within its ambit a personal guarantee against torture or to cruel, inhuman or degrading treatment or punishment, can move to the higher courts for judicial remedies under Article 32 & 226 for deprivation of Fundamental Rights. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed about the grounds of such arrest and cannot be denied to consult and defend himself by legal practitioner of his choice. A22 directs that person arrested and detained in custody shall be produced before nearest Magistrate within 24 hrs of such arrest. Article 20(3) provides that accused shall not be compelled to witness against himself as this would amount to self incrimination.
In early eighties were investigative journalism which exposed the practice of torture. The other was public interest litigation, based on press reports. The process of accountability was strengthened with the enactment of Protection of Human Rights Act, 1993. Sec 3 of the Act set up National Human Rights Commission.
- Sec 330 & 331 of Indian Penal Code, which provides for punishment for injury inflicted for extorting confession. The former in case of simple hurt and the latter for greivuos hurt. Crime of custodial torture against prisoners can be brought under Sec 302, 304, 304A and 306 too.
- Sec54 Criminal Procedure Code, 1973 confers upon arrested person the right to have himself medically examined.
- A confession made to police officer is not admissible in evidence under Sec 25 and 26 of Indian Evidence Act, 1872.
- Sec 162 of C.P.C also provides that no statement of a witness recorded by police officer can be used for any purpose other than for contradicting his statement before the court.
- Sec 24 of Indian Evidence Act also provides that when admissible, confession must be made voluntarily. If its made under inducement, threat or promise, it is inadmissible in criminal proceedings;
- Additional safeguard is provided under Sec 164 CrPC, it is for magistrate to ensure that a confession or statement being made by accused person is voluntary.
India has signed but not ratified the UN Convention against Torture (CAT). There has been a continuous effort of the National Human Rights Commission (NHRC) to pursue the Government of India to ratify the Convention against Torture so that a new domestic legislation thereafter can be brought into place. But the effort has gone till date without success. However, absence of a specific law, the Supreme Court of India has condemned torture through various judgments which have contributed to create a national jurisprudence in cases of combating torture.
The practice of torture by police and other law enforcing officers is a matter of deep concern, therefore it is the sacred duty of the state to protect these fundamental human rights of these citizens. The problem of police torture and violence is of universal nature. The concern regarding the problem was one of the reasons leading to provisions against torture and inhuman and degrading treatment and punishments in the Magna Carta and Constitutions of U.S.A and other countries of the world. Though there is no separate and specific protection in the Indian Constitution against torture, the combined effect of rights against self incrimination and of life and liberty is too evident.
In Nandini Satpati v. P.L Dani (AIR 1978 SC 1025), the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violation of law.
The clear case of prohibition against torture was delivered by the Court in Sunil Batra v. Delhi Administration (1978 (4) SCC 494). The Supreme Court did not find itself handicapped by absence of specific provisions against torture in the Constitution and gathered support from Article 14 & 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime.
In Raghbir Singhv. State of Haryana (1980 ( 3) SCC 70), where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court observed that the lives and liberty of citizens are at peril when the guardians of law stab human rights to death. Vulnerability of human rights assumes a traumatic, torturesome poignancy, the violent violence is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them. The court awarded life sentence to the police officer responsible for the death of the suspect in police lock up.
Khatri v. State of Bihar (AIR 1981 SC 928)/ Bhagalpur Blinding case, was an example of cruel and inhuman treatment to the prisoners which are insolating the spirit of Constitution and human value as well as Article 21. Supreme Court in this case tackled the blinding of under-trial prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case shows the pattern of torture, the sanction of torture by state and local judicial authorities, the routine concealment of torture.
Formidable problem in an alleged case of police torture is to establish the guilt of the perpetrators of violence. The wrongdoers may either be able to escape conviction due to lack of required degree of proof or maybe found guilty of lesser offence than the one warranted by the actual facts. This is primarily due to the situation that the warranted by the actual facts. This is primarily due to the situation that the offenders are the comrades and colleagues of the prosecutors and the complete lack of neutral witness. State of U.P v. Ram Sagar Yadav (1985 (1) SCC 552 ), is a case indicative of extreme limits to which police violence and highhandedness may extend. The victim made a compliant against a policeman who demanded bribe from him. He was arrested for his ‘audacity’ and shortly afterwards while in custody was found in a serious condition with 19 injuries on his body eventually causing his death. The Supreme Court while affirming the punishment of 7years rigorous punishment for culpable homicide not amounting to murder under Sec 304, expressed his regret that the trial judge did not find policeman guilty of murder as indicated by the facts.
In D.K Basu v. State of West Bengal (AIR 1997 SC 610), the Court laid down 11 guidelines (procedural measures) to be followed while, during and after arrest of person till he is in the custody of police. This case came up before the Court through a petition under art 32 of the Constitution by an NGO. The Executive Chairman of this NGO had written to Chief Justice of India drawing his attention to news items published in a newspaper, regarding deaths in police lock up and in jail in the State of West Bengal. Here the Court observed that Custodial Torture is a naked violation of human dignity and degrading which destroys individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded the Civilization takes a step backward.
However mere formulation of guidelines and safeguards would not be sufficient, therefore Supreme Court in D.K Basu case warned that:
Failure to comply with the requirements mentioned shall apart from rendering the concerned official liable for departmental action liable to be punished for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
In Joginder Kumar v. State of U.P (1994 (4) SCC 260), Joginder Kumar was called to the police station in connection with a case. Thereafter, his whereabouts became unknown to his family members. His family members filed a writ of habeas corpus before the Supreme Court, pursuant to which he was produced before the court.
Alarming increase in cases of torture, assault and death in police custody and non availability to punish the culprits in such cases have been an vexed problem as the investigation into such matters have been by the custodians themselves. It is therefore, of utmost necessity that an objective and independent enquiry should be made. Keeping it in view, the Supreme Court in Secretary, Hailakandi Bar Association v. State of Assam (1995) Supp (3) SCC 736, directed the CBI to register and investigate the instant case of custodial death. Again in Supreme Court in Ajab Singh v. State of UP (2000) 3 SCC 521, where the police examination of a custodial death was a concocted story, directing the CBI to register the case and conduct an investigation into the circumstances of custodial death. It also directed the CBI to complete investigation expeditiously and file a copy of the investigation report in the court.
The UN Convention against Torture provides for redress and compensation to the tortured victim. Article 14 of the convention categorically emphasizes that every State party to the Convention must ensure that the tortured victim is provided fair & adequate compensation and rehabilitation. If death results in the event of torture, the family is to be provided with compensation. In Nelabati Behara v. State of Orissa (1993 (2) SCC 746); the principle of state liability and the need for state to make reparations for such liability was recognized. It was highlighted that court under Art 32 and 226 of the Constitution has wide amplitude to provide any remedy under Public Law for any contravention of Fundamental Rights.
Alarming increase in custodial torture, assault and death has invited the attention of the judiciary to ensure that public bodies or official do not act unlawfully and perform their public duties properly, especially, when fundamental rights of citizens are involved. The judiciary has given enough directions to safeguard fundamental rights and freedoms of citizens including accused. The judicial dictates have served a useful public purpose to expose and stop the use of third degree methods by police on persons in their custody.
It is for the implementing and supervising authority to ensure that these guidelines are strictly complied with. Parliament should seriously consider the recommendation made by 113th Law Commission Report and as suggested, amend the Indian Evidence Act so as to transfer the onus of proof of innocence on the police in cases where evidence shows that an arrestee suffered an injury during police custody. This provisions is likely to instill some fear in the minds of police officials who tend to take law in their own hands.
NHRC’s guidelines and Instructions on Torture
The NHRC, soon after its establishment, identified custodial deaths and rapes as a priority area of concern and issued instructions to all states and union territories to report any instance of custodial rape or death within 24hrs of its occurrence. It also asked for reporting judicial as well as custodial deaths. NHRC later held that all postmortem examinations done in respect of deaths in police custody and in jails should be video taped and sent to the commission along with postmortem report.
The Indian Government has finally initiated steps to have a law to check torture by making it a punishable offence. While the signatories to the UN Convention were only obliged to amend prevailing laws to make torture a punishable offence, the Indian Government has decided to go the full hog and bring in a new law providing for stricter punishment for those involved in incidents of torture.
The Prevention of Torture Bill, 2008, drafted by government includes torture by Government servants, including police officials, within the ambit of punishable offences. Under the proposed law, public servants and others responsible for causing grievous hurt or danger to life, limb or health of any person would be liable for being punished for torture. Incidentally, the draft legislation also makes inflicting mental torture a punishable offence. Public servants torturing anybody for the purpose of extracting information or extra-judicial confession from any accused would be punished under the proposed law.
Torturing anybody on the ground of his race, religion, place of birth, residence, language, caste and community would also be a punishable offence. Government of India would mandatorily made to submit regular reports to the UN on measures it has taken to implement the convention. The convention also says that that if extradition treaty has been signed by member countries, then an persons accused of torture would have to be extradited. The Bill provides for setting up of independent panels to deal with complaints of torture (at the central level as well as the state level). All complaints in torture matters would automatically be forwarded to these panels.
The maximum punishment prescribed for torture is 10 years, which, government officials say, is among the highest in the world. India signed the Convention in October 1997, but has not ratified the same despite repeated calls by human rights organisations and NGOs. Ratification is necessary for appropriate changes to be made in the prevailing laws. Once ratified and a new law is in place, it would enable institutions and authorities to be committed and be accountable to tackle instances of widespread torture, especially in police custody.
The writer is a Fourth Year student at the NATIONAL UNIVERSITY OF JURIDICAL SCIENCES , Kolkata
HUMAN RIGHTS WATCH
(New York) – The Indian government should urgently investigate and prosecute those responsible for the recent spurt in reported “honor” killings, Human Rights Watch said today. The government should also strengthen laws that protect against kinship, religion-based, and caste-based violence, and take appropriate action against local leaders who endorse or tolerate such crimes, Human Rights Watch said.
Murders to protect family or community “honor” have increased in recent months, in the northern states of Haryana, Punjab, and Uttar Pradesh, where unofficial village councils, called khap panchayats, issue edicts condemning couples for marrying outside their caste or religion and condemn marriages within a kinship group (gotra), considered incestuous even though there is no biological connection. To enforce these decrees and break up such relationships, family members have threatened couples, filed false cases of abduction, and killed spouses to protect the family’s “honor.” Some local politicians and officials have been sympathetic to the councils’ edicts, implicitly supporting the violence.
“Officials who fail to condemn village council edicts that end in murder are effectively endorsing murder,” said Meenakshi Ganguly, South Asia director for Human Rights Watch. “Politicians and police need to send these councils a strong message to stop issuing edicts on marriages.”
There are no official figures on “honor” killings because they often go unreported or are passed off as suicide or natural deaths by the family members involved. However, a recent independent study found that at least 900 such murders occur every year in Haryana, Punjab, and Uttar Pradesh states alone. There are no estimates of other injuries, unlawful confinement, or forced marriages suffered by women and girls, or by couples, in the name of “honor.”
Many affected couples elope, fearing reprisals from family members or the community. The wife’s relatives frequently then file abduction complaints, leading the police to arrest the husband, even if the woman denies being abducted. The woman is then forced to rejoin her family, where she may be confined, abused, and sometimes killed. In other cases, couples have been invited back home for rapprochement or tracked down, and then killed.
More vigilant media have recently been reporting such cases, sometimes resulting in even more extreme responses by community leaders, Human Rights Watch said.
On June 21, 2010, in Haryana, after the bodies of a young couple whose relationship had been condemned for violating kinship rules were found hanging from a tree, six family members were arrested for murder.
Later in June, another couple and the bride’s sister were found murdered in Delhi. The two women had both married outside their caste. Three men, cousins of the women, were arrested for the killing.
In Uttar Pradesh on July 6, village leaders ordered upper caste villagers to abduct all young women belonging to families of Dalits (so-called “untouchables”) unless an upper caste Brahmin woman, who had eloped with her Dalit boyfriend, returned home.
Police routinely fail to investigate apparent “honor” killings. In July 2009, Monika Dagar, 21, secretly married Gaurav Saini, 24, who belonged to a lower caste and would thus be unacceptable to her family and community. A week later, Dagar’s relatives arrived at the place the couple was living, accompanied by the police, who arrested Saini on kidnapping charges, despite Dagar’s protests.
He was eventually released but was unable to trace his wife despite repeated appeals for police assistance. In October, Saini was informed that his wife had died of pneumonia; the circumstances were such that Saini believes that she was murdered by her family. The police did not investigate the cause of her death, and Saini has brought a case against them.
“The authorities in these cases give little or no regard to the wishes and concerns of the women at risk,” Ganguly said. “So the women seldom are able to pursue complaints or seek protection from those actually threatening their life and security.”
In April, 4,000 khap panchayat members from Haryana, Uttar Pradesh, Rajasthan, and Delhi gathered in support of five family members who were convicted in connection with the May 2007 murder of Manoj and Babli, married members of the same gotra who had been condemned by a local council in Haryana. A khap panchayat leader was sentenced to life in prison for instigating the killings.
Since the convictions, khap panchayats have demanded amendments to the Hindu marriage laws to include a prohibition on marriages among the same gotra. Some politicians have supported the glorification of the murders as having “honored traditional values.”
The Supreme Court has taken note of the recent spate of “honor” killings and has sought a response from the central government and concerned state governments on steps taken to prevent such incidents.
The Indian government has proposed amendments to the Indian Penal Code to ensure that individuals issuing diktats against couples can be charged with murder. The government proposals also include revoking the 30-day notice period presently required under the Special Marriage Act for inter-community marriages, because that time is misused by families to track down and kill or forcibly separate couples. However, these changes to the law are facing some resistance from political groups citing traditional and customary rights.
“The Indian government should press ahead to strengthen its laws and make community leaders liable for punishment if their edicts incite so-called honor killings,” Ganguly said. “Murder is murder, and customary sentiment should not prevail over basic rights and the laws of the land.”
Legislative changes are only a part of the solution, Human Rights Watch said. The Indian government should ensure that its police officials impartially investigate “honor” killings without bowing to political or other pressure from powerful local leaders. In 2009, a Human Rights Watch report on police reform found that police were often not able to function free from improper political interference. Human Rights Watch also expressed concern that traditional biases have often interfered with the ability of police to enforce laws objectively.
The Indian government should, through public campaigns and the media, promote the right of individuals of legally marriageable age to marry persons of their choice, without having to fear violence or other abuse, Human Rights Watch said. The government should instruct police to protect those in consensual relationships who fear family or community reprisals.
“Police should be held accountable when they turn a blind eye and fail to investigate alleged ‘honor’ crimes,” Ganguly said. “The unholy nexus between caste, politics, and impunity should be broken.”
TIMES OF INDIA
NEW DELHI: The Delhi High Court has suggested that Delhi University and Bar Council of India frame rules allowing relaxation of attendance norms for students missing classes due to pregnancy. Reminding the two institutions that ‘‘society today is changing at a rapid pace and we must be in tune with the realities’’, the court on Monday admitted the petitions of two Law Faculty students who were short of attendance because of pregnancy.
The court went a step ahead and said that pregnancies of single women should also be treated sympathetically by educational institutions as far as attendance is concerned. ‘‘The Supreme Court has given liberty to live-in relationships and it has held that pre-marital sex isn’t an offence,’’ Justice Kailash Gambhir observed while admitting the two petitions through lawyer R K Saini.
The students, both married, claimed that DU had ignored their plea that the shortfall in their attendance was because of the advanced stage of their pregnancies. HC ‘‘suggested’’ to the Bar Council of India (BCI) — the body that regulates legal education in the country — that it frame rules for pregnant LLB students allowing them relaxation in attendance.
‘‘If any woman candidate is deprived or detained in any of the semesters just on the ground that she could not attend classes being in advanced stage of pregnancy or due to delivery, such an act would not only be completely in negation of the conscience of the Constitution but also of women’s rights and gender equality this nation has long been striving for,’’ the court noted, dismissing the arguments of the university.
At the same time, the court dismissed a batch of petitions filed by other LLB students seeking a direction to DU to declare their results which were withheld because they had failed to meet the 66% attendance criterion. The judge remarked, ‘‘It is high time law students understand that there is no royal road to education and education teaches only those in attendance.
S VISWASNATHAN IN THE HINDU
The Indian media have a vital responsibility in enabling society to combat and eliminate social evils. ‘Honour killings’ are a particularly barbaric social practice targeting those who defy the traditional ban on ‘same gotra’ marriages or marry out of caste. The central government has decided to “consult” the States on steps to put an end to the spate of such killings in several parts of the country. A Group of Ministers will go into the issue and suggest changes in the law. It has been reported that although Cabinet Ministers agreed on the need to stop the killings, they were divided on which laws needed to be amended.
This is not an issue on which State rights are at stake because there is no question of a civilised society, governed by the rule of law, tolerating such savagery in the name of tradition. The challenge is the existence of ‘khap panchayats,’ which provide social sanction for the savagery. In Haryana, which probably accounts for the largest number of ‘honour killings,’ both the Opposition and the ruling Congress are one in defending the institution. Chief Minister Bhupinder Singh Hooda has declared that marriage within the same gotra was not part of the tradition in Haryana. He claimed that the khap or community panchayats were not responsible for the killing of couples marrying within the same gotra. He was glossing over the social truth that it is the ruling given by the khap panchayats nullifying the marriages within a gotra that leads to the killing of girls and boys, invariably by brothers or uncles of the girls. Mr. Hooda’s principal political opponent, former Chief Minister and President of the Indian National Lok Dal Om Prakash Chautala, did not lag behind. He was also seeking a change in the law. He met Union Home Minister P. Chidambaram and pressed for amendments to the Hindu Marriage Act with a view to banning “the same gotra marriage.”
(The law referred to is The Hindu Marriage Disabilities Removal Act, 1946. It is an act to remove certain disabilities and doubts under Hindu Law in respect of marriages between Hindus; marriages between persons of same gotra or prevara. The Act says: “Notwithstanding any text, rule or interpretation of the Hindu Law or any custom or usage, a marriage between Hindus, which is otherwise valid, shall not be invalid by reason only of the fact that the parties thereto (a) belong to the same gotra or (b) belong to different sub-divisions of the same caste.”)
A Congress M.P. from Haryana, Naveen Jindal, swore by the khap panchayats, reportedly explaining that he and his entire family respected their “years old traditions and rituals.” In Punjab, Rajasthan, Uttar Pradesh, Bihar and Jharkhand, in which the practice of ‘honour killings,’ whether based on khap panchayats or otherwise, has been reported, the situation might be somewhat different from Haryana’s. However, given the proximity of the caste leaders to the power centres in several States, their response to the idea of changing laws woud be an interesting subject for the media to study, report, and comment on.
In respect of amending certain laws, the central government has taken the lead from the orders of the Supreme Court of India to eight State governments, besides the Centre, to submit reports on the steps taken to prevent the inhuman practice of ‘honour killings.’ The orders of a Division Bench of the Court followed a petition filed by Shakti Vahini, a non-governmental organisation, under Public Interest Litigation. Shakti Vahini, which had been working in the field of women’s rights and related issues, told the court that apart from ‘honour killings,’ which was an extreme form of reaction, women had to confront long-term, low-level physical abuse and bullying as a punishment for bringing the ‘family honour’ to disrepute. Such abuses could include torture, mutilation, rape, forced marriage, and imprisonment within the home, according to the petitioner. It also pointed out that when the State remained a mute spectator, there was fear among the youth and young couples who were already married or were planning to get married. The petitioner wanted the Supreme Court to lay down guidelines for law-enforcing officials on the pattern of the guidelines for combating sexual harassment at the workplace.
There is no evidence to show that the killer panchayats have been stopped in their tracks. At the same time, the movement against their barbaric diktats has gained momentum. Human rights organisations, social and political activists, and youth and women’s organisations have stepped up their campaigns. These, together with what has begun to assume the contours of a national media campaign, have created greater awareness of the rights of young men and women to free choice and dignity. Almost all daily newspapers and magazines carry detailed reports with interviews and opinion pieces on the subject. Sadly, there is no matching endeavour among administrators and law-enforcement authorities in the affected States to keep pace with the crimes and help stop the atrocities. Here is an opportunity for the media to step up their campaign against the social evil in a big way. They can do this through more detailed and comprehensive coverage on the ground and a more systematic attempt to mould public opinion, especially in the States where the khaps are at their deadly work.