LAW RESOURCE INDIA

Review of Rape Law

Posted in CRIME AGAINST WOMEN, RIGHT TO LIFE, VIOLENCE AGAINST WOMEN by NNLRJ INDIA on July 21, 2012
Dignity is her birthright

Dignity is her birthright

NATIONAL LAW RESEARCH DESK

The Union Cabinet today approved the proposal for introduction of the Criminal Law (Amendment ) Bill, 2012 in the Parliament.

The Law Commission of India in its 172nd Report on `Review of Rape Laws` as well the National Commission for Women have recommended for stringent punishment for the offence of rape. The High Powered Committee (HPC) constituted under the Chairmanship of Union Home Secretary examined the recommendations of Law Commission, NCW and suggestions various quarters on the subject submitted its Report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft was further examined in consultation with the Ministry of Women and Child Development and the Ministry of Law & Justice and the draft Criminal Law (Amendment) Bill, 2012 was prepared.

The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code,1860, replacing the word `rape’ wherever it occurs by the words `sexual assault`, to make the offence of sexual assault gender neutral, and also widening the scope of the offence sexual assault.

The punishment for sexual assault will be for a minimum of seven years which may extend to imprisonment for life and also fine for aggravated sexual assault, i.e., by a police officer within his jurisdiction or a public servant / manager or person talking advantage of his position of authority etc. The punishment will be rigorous imprisonment which shall not be less than ten years which may extend to life imprisonment and also fine.

The age of consent has been raised from 16 years to 18 years in sexual assault. However, it is proposed that the sexual intercourse by a man with own wife being under sixteen years of age is not sexual assault. Provision for enhancement of punishment under sections 354 and 509 of IPC and insertion of sections 326A and 326B in the IPC for making acid attack a specific offence have been made.

RAPE LAWS RECOMMENDATION NCW

172LAW COMMISSION REPORT ON REVIEW OF RAPE LAW

Decision on Sec 377 could affect other sexual offences in IPC: SC

Posted in SEXUAL OFFENCES by NNLRJ INDIA on February 23, 2012

TIMES OF INDIA

NEW DELHI: The Supreme Court on Wednesday said its final decision on the correctness of the Delhi High Court judgment — which decriminalized Section 377 of Indian Penal Code covering a sexual act in private between consenting adults — could have far reaching impact on several sexual offences listed in the penal laws.

A bench of Justices G S Singhvi and S J Mukhopadhaya requested the counsel for parties to keep in mind the evolving social ethos as the key words in the HC judgment — “consenting adults committing a sexual act in private” – could have a bearing on several other sexual offences enumerated in the IPC.

“Though the focus of our judgment would remain on Section 377, but keep in mind that it could have bearing on provisions relating to other sexual offences. Obscenity could be one such provision,” the bench told senior advocate Amarendra Saran, who was arguing against the HC verdict on behalf of Delhi Commission for Protection of Child Rights (DCPCR).

The court was possibly hinting at offences like adultery and obscenity in public, mostly misused by police to harass couples in parks.

Section 497 defines adultery. According to it – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

In this case, the consent of the woman is immaterial and the consenting sexual act still would constitute an offence if the consent of her husband was not taken.

Saran said NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the LGBT (lesbian, gay, bisexual, transgender) group’s right to equality guaranteed under Article 14, right to privacy under Article 21 and the constitutional guarantee under Article 15 prohibiting discrimination on the basis of sexual orientation of such persons.

He argued that right to privacy did not confer right on consenting adults to commit an act in private which was illegal. “In other words, right to privacy does not confer immunity to crimes committed by consenting adults in private. Hence, the reasoning of the HC that Section 377 is violative of right to privacy is clearly erroneous,” Saran said.

He said Section 377 did not suffer from class bias. “It applies uniformly to any man or woman if such person indulged in carnal intercourse which is against the order of nature,” he said and cited a 1990 Supreme Court judgment to back his argument that all “non penile-vaginal” intercourse would fall within the meaning of “carnal intercourse against the order of nature”, which has been classified as an offence under Section 377.

The DCPCR counsel said “there was a vast cultural difference in the Indian society and other societies of the world” and faulted the Delhi HC judgment for basing its reasoning on foreign court rulings.

Law on Bail

Posted in BAIL, CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, JUSTICE by NNLRJ INDIA on November 26, 2011

Supreme Court of India

SUPREME COURT IN Sanjay Chandra vs Cbi on 23 November, 2011

Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused [Sharad Kumar Vs. CBI (supra)] and, therefore, there is no reason or change in the circumstance to take a different view in the case of the appellants who are also charge- sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions.

The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read 2 with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice.

In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if  left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is `the seriousness of the charge’. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in  support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather recalibration of the scales of justice. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.

This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42, observed that under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the  Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so.

This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight (17) In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus: What, then, is judicial discretion in this bail context? In the elegant words of Benjamin Cardozo:

The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains Even so it is useful to notice the tart terms of Lord Camden that  the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst,  it is every vice, folly and passion to which human nature is liable Perhaps, this is an overly simplistic statement and we must remember the  constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest  magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:

I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial …. It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death

It is thus obvious that the nature of the charge is the vital  factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance.

Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has  been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, this Court took the view:. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.

Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of  jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out

 In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined: The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with  lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right. …

Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice–to the individual involved and society affected.

We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, community roots of the applicant are stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding — if that be so — of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man  and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal

In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held: The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.

The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus: Bail remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression bail denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb bailer; which means to give or to deliver, although another view is that its derivation is from the Latin term baiul are, meaning to bear a burden;. Bail is a conditional liberty. Stroud’s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those  which have authority to bail him, which sureties are bound for him to the King’s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed–that is to say, set at liberty until the day appointed for his appearance Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.

Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged  to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras)

The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that just as liberty is precious to an individual, so is the society’s interest in maintenance of  peace, law and order. Both are equally important This Court further observed : Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].

The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus: The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt

In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11) The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas

 While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary) Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the  same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.

 The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.

When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the  documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated:  In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille

 In `Bihar Fodder Scam’, this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.

Socially beneficial tool turning into legal terrorism mechanism?

Posted in CRIME AGAINST WOMEN, DOWRY, GENDER, WOMEN EMPOWERMENT by NNLRJ INDIA on July 4, 2011

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

It is too early to say whether Dominique Strauss-Kahn was framed by a woman employee of a hotel. It cost him his job as IMF chief and cast a shadow on his ambition to become French president. After prosecutors developed doubts over veracity of the victim’s charges, Kahn got unconditional bail. Will the relief save his image, reputation and political prospects? It is difficult to say but, generally, allegations of sexual assault or exploitation against the rich, powerful and famous are taken to be true.

But the most equipped investigation, able prosecution and hawk-eyed judicial scrutiny sometimes fail to unravel the facts. Actor Shiney Ahuja, who probably would be finding similarities of his case with that of Strauss-Kahn, will agree. The Supreme Court faced an identical dilemma just last year, relating to dowry harassment cases under Section 498A of Indian Penal Code. “It is common knowledge that unfortunately, matrimonial litigation is rapidly increasing in our country… this clearly demonstrates discontent and unrest in the family life of a large number of people of society,” it said.

On the one hand, the law was the social legislation giving women protection against harassment at the hands of the husband and his relatives, who demand more and more dowry. The court was concerned with the rapid rise in such cases. But on the other hand, it was aware that “a large number of such complaints are not bona fide and are filed with oblique motive”.

It admitted, “To find out the truth is a herculean task in a majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth.”

The SC wanted a way out of the vicious cycle of litigation that mostly ruins innocent husbands and in-laws, who are falsely roped in, but seldom affects the real perpetrators who exploit loopholes in the system to escape the law.

The court was worried by the overkill of Section 498A. It did not want a socially beneficial legal framework to be turned into a mechanism of legal terrorism. It requested the Law Commission to examine the issue and suggest changes that could help create an ambience where the perpetrators could be adequately punished and at the same time, leave some room for negotiations to arrive at an amicable settlement. The commission invited suggestions from all quarters, including NRIs. And the overwhelming response was in favour of thorough investigations into the complaint of the wife under Section 498A before police arrested the husband and in-laws.

The commission is in the process of finalizing its decision which appears to be in favour of providing for a settlement clause between the victim and in-laws, which could be a welcome breather. However, it is against making the offence under Section 498A bailable.

Before any change is made in the law that was enacted to protect women from dowry harassment, it needs to be debated whether a woman’s complaint under Section 498A be thoroughly probed before effecting arrest of the husband and her in-laws.

Right now, once a Section 498A complaint is lodged, the police arrests the person named by the wife. The SC had said, “The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.”

The commission, before sending its recommendation to the government, must examine this aspect — what should be the protection to husbands and in-laws who have been framed in a complaint under Section 498A. But it must also not lose sight of the gruesome treatment meted out to women who fail to satisfy the greed of husbands and their in-laws.

http://timesofindia.indiatimes.com/Socially-beneficial-tool-turning-into-legal-terrorism-mechanism/articleshow/9092395.cms

A bill to settle a terrible debt

Posted in CRIMINAL JUSTICE SYSTEM, HUMAN RIGHTS, JUSTICE by NNLRJ INDIA on June 21, 2011

Siddharth Varadarajan IN THE HINDU

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It’s time to end this injustice.

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India’s citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does.

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority’ group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn’t, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India’s religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill’s definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill’s language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011

http://www.hindu.com/2011/06/21/stories/2011062156231000.htm

Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code

Posted in CRIME AGAINST WOMEN by NNLRJ INDIA on June 8, 2011

LAW COMMISSION OF INDIA

Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code

1.        Keeping in view the representations received from various quarters and observations made by the Supreme Court and the High Courts, the Home Ministry of the Government of India requested the Law Commission of India to consider whether any amendments to s.498A of Indian Penal Code or other measures are necessary to check the alleged misuse of the said provision especially by way of over-implication.

2.        S.498A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives.  A punishment extending to 3 years and fine has been prescribed.  The expression ‘cruelty’ has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security.    Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of ‘cruelty’.  The offence under s.498A is cognizable, non-compoundable and non-bailable.

3.        In a recent case of Preeti Gupta v. State of Jharkhand, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature.   “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints.  The tendency of over-implication is also reflected in a very large number of cases”.    The Court took note of the common tendency to implicate husband and all his immediate relations.    In an earlier case also – Sushil Kumar Sharma v. UOI (2005), the Supreme Court lamented that in many instances, complaints under s.498A were being filed with an oblique motive to wreck personal vendetta.   “It may therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with”, it was observed.    It was also observed that “by misuse of the provision, a new legal terrorism can be unleashed”.

4.        The factum of over-implication is borne out by the statistical data of the cases under s.498A.  Such implication of the relatives of husband was found to be unjustified in a large number of decided cases.  While so, it appears that the women especially from the poor strata of the society living in rural areas rarely take resort to the provision.

5.        The conviction rate in respect of the cases under s.498A is quite low.  It is learnt that on account of subsequent events such as amicable settlement, the complainant women do not evince interest in taking the prosecution to its logical conclusion.

6.        The arguments for relieving the rigour of s.498A by suitable amendments (which find support from the observations in the Court judgments and Justice Malimath Committee’s report on Reforms of Criminal Justice System) are:   Once a complaint (FIR) is lodged with the Police under s.498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation.   When the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all.  The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored.  The imminent arrest by the Police will thus be counter-productive.    The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family.   Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over-zealous/callous actions on the part of the Police by taking advantage of the harsh provisions of s.498A of IPC together with its related provisions in CrPC.    It is pointed out that the sting is not in s.498A as such, but in the provisions of CrPC making the offence non-compoundable and non-bailable.

7.        The arguments, on the other hand, in support of maintaining the status quo are briefly:

S.498A and other legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment.  The social purpose behind it will be lost if the rigour of the provision is diluted.   The abuse or misuse of law is not peculiar to this provision.   The misuse can however be curtailed within the existing framework of law.   For instance, the Ministry of Home Affairs can issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests.  The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made.  Further, the first recourse should be to effect conciliation and mediation between the warring spouses  and the recourse to filing of a chargesheet under s.498A shall be had only in cases where such efforts fail and there appears to be a prima facie case.  Counselling of parties should be done by professionally qualified counsellors and not by the Police.

7.1      These views have been echoed among others by the Ministry of Women and Child Development.

7.2      Further, it is pointed out that a married woman ventures to go to the Police station to make a complaint against her husband and other close relations only out of despair and being left with no other remedy against cruelty and harassment.  In such a situation, the existing law should be allowed to take its own course rather than over-reacting to the misuse in some cases.

7.3      There is also a view expressed that when once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly. It is contended that in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A is not warranted. Secondly, during  the long–drawn process of  mediation also, she is  vulnerable to  threats and  torture.   Such situations too need to be taken care of.

8.        There is preponderance of opinion in favour of making the said offence compoundable with the permission of the court.   Some States, for e.g., Andhra Pradesh have already made it compoundable.  The Supreme Court, in a recent case of –*—, observed that  it should be made compoundable.  However, there is sharp divergence of views on the point whether it should be made a bailable offence.  It is pleaded by some that the offence under s.498A should be made bailable at least with regard to husband’s relations.*Ramgopal v. State of M. P. in SLP (Crl.) No. 6494 of 2010 (Order dt. July 30, 2010.

8.1      Those against compoundability contend that the women especially from the rural areas will be pressurized to enter into an unfair compromise and further the deterrent effect of the provision will be lost.

9.        The Commission is of the view that the Section together with its allied CrPC provisions shall not act as an instrument of oppression and counter-harassment and become a tool of indiscreet and arbitrary actions on the part of the Police.  The fact that s.498A deals with a family problem and a situation of marital discord unlike the other crimes against society at large, cannot be forgotten.   It does not however mean that the Police should not appreciate the grievance of the complainant woman with empathy and understanding or that the Police should play a passive role.

10.      S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises.  Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse.   Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale.

11.      While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase.  A balanced and holistic view has to be taken on weighing the pros and cons.  There is no doubt a need to address the misuse situations and arrive at a rational solution – legislative or otherwise.

12.      There is also a need to create awareness of the provisions especially among the poor and illiterate living in rural areas who face quite often the problems of drunken misbehavior and harassment of women folk.   More than the women, the men should be apprised of the penal provisions of law protecting the women against harassment at home.  The easy access of aggrieved women to the Taluka and District level Legal Service Authorities and/or credible NGOs with professional counsellors should be ensured by appropriate measures.   There should be an extensive and well-planned campaign to spread awareness.   Presently, the endeavour in this direction is quite minimal.   Visits to few villages once in a way by the representatives of LSAs, law students and social workers is the present scenario.

13.      There is an all-round view that the lawyers whom the aggrieved women or their relations approach in the first instance should act with a clear sense of responsibility and objectivity and give suitable advice consistent with the real problem diagnosed.  Exaggerated and tutored versions and unnecessary implication of husband’s relations should be scrupulously avoided.  The correct advice of the legal professionals and the sensitivity of the Police officials dealing with the cases are very important, and if these are in place, undoubtedly, the law will not take a devious course.   Unfortunately, there is a strong feeling that some lawyers and police personnel have failed to act and approach the problem in a manner morally and legally expected of them.

14.      Thus, the triple problems that have cropped up in the course of implementation of the provision are:(a) the police straightaway rushing to arrest the husband and even his other family members (named in the FIR), (b) tendency to implicate, with little or no justification, the in-laws and other relations residing in the marital home and even outside the home, overtaken by feelings of emotion and vengeance or on account of wrong advice, and (c) lack of professional, sensitive and empathetic approach on the part of the police to the problem of woman under distress.

15.      In the context of the issue under consideration, a reference to the provisions of Protection of Women from Domestic Violence Act, 2005 (for short PDV Act) which is an allied and complementary law, is quite apposite.   The said Act was enacted with a view to provide for more effective protection of rights of women who are victims of violence of any kind occurring within the family.   Those rights are essentially of civil nature with a mix of penal provisions.  Section 3 of the Act defines domestic violence in very wide terms. It encompasses the situations set out in the definition of ‘cruelty’  under Section 498A. The Act has devised an elaborate  machinery to safeguard the interests of women subjected to domestic violence.  The Act enjoins the appointment of Protection Officers  who will be under the control and supervision of a Judicial Magistrate of First Class.  The said officer shall send a domestic incident report to the Magistrate, the police station and service providers.   The Protections Officers are required to effectively assist and guide the complainant victim and  provide shelter,  medical facilities, legal aid etc. and also act on her behalf to present an application to the Magistrate for one or more reliefs under the Act.   The Magistrate is required to hear the application ordinarily within 3 days from the date of its receipt. The Magistrate may at any stage of the proceedings direct the respondent and/or the aggrieved person to undergo counseling with a service provider. ‘Service Providers’  are those who conform to the requirements of Section 10 of the Act. The Magistrate can also secure the services of a welfare expert preferably a woman for the purpose of assisting him. Under Section 18, the Magistrate, after giving an opportunity  of hearing to the Respondent and on being prima facie satisfied that domestic violence has taken place or is likely to take place, is empowered to pass a protection order prohibiting the Respondent from committing any act of domestic violence and/or aiding or abetting all acts of domestic violence. There are other powers vested in the Magistrate including granting residence orders and monetary reliefs.     Section 23 further empowers the Magistrate to pass such interim order as he deems just and proper including an ex-parte order.    The breach of protection order by the respondent is regarded as an offence which is cognizable and non-bailable and punishable with imprisonment extending to one year (vide Section 31).  By the same Section, the Magistrate is also empowered to frame charges under Section 498A of IPC and/or Dowry Prohibition Act. A Protection Officer who fails or neglects to discharge his duty  as per the protection order is liable to be punished with imprisonment (vide Section 33). The provisions of the Act are supplemental to the provisions of any other law in force. A right to file a complaint under Section 498A is specifically preserved under Section 5 of the Act.

15.1   An interplay of the provisions of this Act and the proceedings under s.498A assumes some relevance on two aspects: (1) Seeking Magistrate’s expeditious intervention by way of passing a protective interim order to prevent secondary victimization of a complainant who has lodged FIR under s.498A. (2) Paving the way for the process of counselling under the supervision of Magistrate at the earliest opportunity.

16.      With the above analysis and the broad outline of the approach indicated supra, the Commission invites the views of the public/NGOs/institutions/Bar Associations etc. on the following points, before preparing and forwarding to the Government the final report:

Questionnaire

1)    a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC?  What should be their approach and plan of action?

b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR?  Would the objective of s.498A be better served thereby?

2)    a) The Supreme Court laid down in D.K. Basu (1996) and other cases that the power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person’s complicity as well as the need to effect arrest.  Don’t you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest?

b) What steps should be taken to check indiscriminate and unwarranted arrests?

3)    Do you think that making the offence bailable is the proper solution to the problem?  Will it be counter-productive?

4)    There is a view point supported by certain observations in the courts’ judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides.   In other words, the possibility of exploring reconciliation at the outset should precede punitive measures.  Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be  completed with  utmost expedition? Should there be a  time-limit  beyond which  the police shall be  free to  act without  waiting for the outcome of conciliation process?

5)    Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage?   Do you have a different view?

6)    a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators – the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District?

b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications?

7)  a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counselling/conciliation, apart from according interim protection?

b)  Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate?

c)  Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed?

8)    Do you think that the offence should be made compoundable (with the permission of court)?

Are there any particular reasons not to make it compoundable?

9)    Do you consider it just and proper to differentiate the husband from the other accused in providing for bail?

10)                       a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement?   Is there a need for better coordination between LSAs and police stations?

b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages?

c)Are the  Mediation Centres in some States well equipped and  better suited to attend to the cases related to S,498-A?

11)                       What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people?

12)                       Do you have any informations about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them?

13)                       What according to you is the main reason for low conviction rate in the prosecutions u/s 498A?

14)                       (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A?   If so, what should be its composition and the qualifications of women police deployed in such a cell?

(b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training.   In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station?

Law Commission proposes legislation to curb ‘honour killings’

Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on June 8, 2011

J. Venkatesan IN THE HINDU

The draft has been approved and is expected to be released shortly for comments

There must be a bar on assembly for discussing young persons marrying as per their choice

Village elders have no right to interfere with the life and liberty of such couples

 NEW DELHI: To tackle the menace of ‘honour killings‘ in some parts of the country and deal with illegal orders from by ‘khap panchayats,’ the Law Commission has proposed legislation to prosecute persons or a group involved in such endangering conduct and activities.

The proposed legislation, ‘The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011,’ drafted by Law Commission Member and senior advocate R. Venkataramani, has been discussed and approved by the Commission, which is headed by Justice P. Venkatarama Reddi. It is expected to be released shortly for comments.

The Commission has turned down the demand for introducing a clause in Section 300 of the Indian Penal Code (murder) to bring ‘honour killings’ under the ambit of this Section. It says: “There is no need to introduce a provision in Section 300 in order to bring the so-called honour killings within the ambit of this provision. The addition of such a clause may create confusion and interpretational difficulties. The existing provisions in the IPC are adequate to take care of the situations leading to overt acts of killing or causing bodily or other acts to the targeted person who allegedly undermined the honour of the caste or community.”

The idea behind the provisions in the draft legislation is that there must be a threshold bar on congregation or assembly for discussing and condemning the conduct of young persons above the age of majority in marrying as per their choice even if they belong to the same ‘gotra’ (which is not prohibited) or they belong to different castes or communities. ‘Panchayatdars’ or village elders have no right to interfere with the life and liberty of such young couples and they cannot create a situation in which such couples are placed in a hostile environment in the village/locality concerned.

Under the proposed law, “the act of endangerment of life and liberty shall mean and include any manner of acts of threat, encouragement, commending, exhorting and creating an environment whereby loss of life and liberty is imminent or threatened and shall include (a) enforcement of measures such as social boycott, deprivation of the means of livelihood, denial of facilities and services which are otherwise generally available to the people of the locality concerned and (b) directly or indirectly compelling the persons concerned to leave or abandon their homestead in the locality.”

“Further, it shall be unlawful for any group of persons to gather, assemble or congregate with the … intention to deliberate, declare on, or condemn any marriage or relationship such as marriage between two persons of majority age in the locality concerned on the basis that such conduct or relationship has dishonoured the caste or community or religion of all or some of the persons forming part of the assembly or the family or the people of the locality concerned.”

It shall be presumed that any person or persons found to be part of the unlawful caste assembly did so with the intention to act in endangerment of life or liberty. Such an assembly shall be treated as an unlawful assembly and those present in it shall be punished with imprisonment for a period of not less than three years and extending up to five years and a fine of Rs.30,000.

The draft legislation says: “Any person or persons instrumental in gathering of such an assembly or who takes an active part in the execution of the assembly shall also be subjected to civil sanctions,” viz., they will not be eligible to contest any election to any local authority and will be treated as a disqualified candidate.

The Protection of Women Against Sexual Harassment at Work Place Bill, 2010

Posted in CRIME AGAINST WOMEN, GENDER, WOMEN EMPOWERMENT by NNLRJ INDIA on May 27, 2011

PRS LEGISLATIVE REVIEW

The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints.  It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels.  A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Highlights of the Bill

  • The Bill defines sexual harassment at the work place and creates a mechanism for redressal of complaints.  It also provides safeguards against false or malicious charges.
  • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.  The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
  • The Complaints Committees have the powers of civil courts for gathering evidence.
  • The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
  • Penalties have been prescribed for employers.  Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000.  Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

Key Issues and Analysis

  • There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.
  • The Internal Complaints Committee has been given the powers of a civil court.  However, it does not require members with a legal background nor are there any provisions for legal training.
  • The Bill provides for action against the complainant in case of a false or malicious complaint.  This could deter victims from filing complaints.
  • Two different bodies are called ‘Local Complaints Committee’.  The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees.
  • Cases of sexual harassment of domestic workers have been specifically excluded from the purview of the Bill.
  • Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.

PART A: HIGHLIGHTS OF THE BILL

Context


India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). However, India does not have a specific law to address the issue of sexual harassment of women at the place of work. Currently, the Indian Penal Code (IPC) covers criminal acts that outrage or insult the ‘modesty’ of women. It does not cover situations which could create a hostile or difficult environment for women at the work place.

In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place.1 The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.

A draft Bill was circulated by the Ministry of Women and Child Development for public feedback in 2007. The current Bill establishes a framework to be followed by all employers to address the issue of sexual harassment.

Key Features


The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Prohibition of Sexual Harassment at the Work Place

  • Sexual harassment is defined to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature.
  • The Bill prohibits sexual harassment at the work place which may include promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems.
  • The Bill defines a work place to include all organizations, and any place visited by an employee during the course of work. It covers every woman at the work place (whether employed or not) except a domestic worker working at home. It defines employer as the person responsible for the management, supervision and control of the work place.

Duties of the employer

  • The Bill assigns certain duties to each employer. These include (a) providing a safe working environment; (b) constituting an Internal Complaints Committee and conspicuously displaying the order constituting the Committee; (c) undertaking workshops and training programmes at regular intervals for sensitizing employees; (d) providing assistance during an inquiry; and (e) initiating action against the perpetrator.

Structure for redressal of complaints

  • Every employer is required to constitute an ‘Internal Complaints Committee’ at all offices and branches with staff strength of 10 or more employees. Members of the committee shall include a senior woman employee, two or more employees and one member from an NGO committed to the cause of women. A member of this Committee may not engage in any paid employment outside the duties of the office.
  • A ‘Local Complaints Committee’ is required to be constituted in every district. An additional ‘Local Complaints Committee’ shall also be constituted at the block level to address complaints in situations where the complainant does not have recourse to an Internal Complaints Committee or where the complaint is against the employer himself.
  • The ‘Local Complaints Committee’, to be constituted by the District Officer, shall include an eminent woman as the Chairperson, a woman working in the area, two members from an NGO committed to the cause of women, and a Protection Officer appointed under the Protection of Women from Domestic Violence Act, 2005.
  • At least 50 percent of the nominated members in any Internal or Local Committee must be women.

Procedure for filing complaints and initiating inquiry

  • An aggrieved woman may complain to the Internal Committee. In the absence of such a committee, she may file a complaint with the Local Committee. All complaints must be in writing. The complainant may also pursue other remedies, including filing a criminal complaint.
  • The Committee shall provide for conciliation if requested by the complainant. Otherwise, the Committee shall initiate an inquiry.

Penalties and appeal

  • If the allegation is proved, the Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act. In addition, it may provide for monetary compensation to the complainant.
  • If the allegation is proved to be false or malicious, the Committee may recommend action against the complainant. However, action may not be taken against a complainant merely on the inability to substantiate a complaint or provide adequate proof.
  • Appeals against the recommendations of either Committee shall lie with the courts.
  • Penalties have also been prescribed for employers who fail to comply with the provisions of the Act. Non-compliance shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration required for carrying on the business.

PART B: KEY ISSUES AND ANALYSIS

Feasibility issues in the composition of the Internal Complaints Committee


Constitution of an internal committee at each administrative unit

The Bill requires that every office or branch with 10 or more employees constitute an Internal Complaints Committee. This requirement differs from the one proposed in the draft Bill circulated by the National Commission for Women (NCW) in 2010.2 The NCW draft Bill prescribed that if units of the work place are located at different places, an Internal Committee shall be constituted ‘as far as practicable’ at all administrative units or offices. A similar requirement was laid down in the 2007 draft Bill circulated by the Ministry of Women and Child Development.3

NGO representation in Internal Committees

Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country with 10 or more employees needs to have one such person in the Committee. As per the Economic Census 2005, there are at least six lakh establishments that employ 10 or more persons.4 There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available.

Bar on engagement in additional paid employment

No member of the Internal Committee is allowed to engage in any paid employment outside the duties of her office. This implies that even the external person in the Committee (who is with an NGO) may not hold any other part-time employment. It is not clear why this condition has been prescribed.

Powers of a civil court

The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. The composition of the Internal Committee does not require any member to have a legal background. Moreover, the Bill does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge.

Ambiguous guidelines for the constitution of the Local Complaints Committee


Two different bodies are called ‘Local Complaints Committee.’ The Bill provides that every District Officer shall constitute a Local Complaints Committee in the district. It also prescribes that an additional Local Complaints Committee shall be constituted at the block level to address complaints in certain cases.

The jurisdiction and functions of these committees have not been delineated. It is also unclear whether the block level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases.

Availability of Protection Officers


The Bill prescribes that a Protection Officer (PO), appointed under the Domestic Violence Act, 2005, shall be a member of the Local Complaints Committee. These Local Committees shall be established at the district level and may also be set up at the block level.

There is wide variation across states in the number of POs appointed per district.5 For instance, Maharashtra has appointed an average of 98 POs per district. Bihar, on the other hand, has appointed one PO for every two districts. This could lead to unavailability of POs in some areas for appointment to the Local Complaints Committees.

Scope for misuse of some provisions


Punishment for false or malicious complaints

The Bill provides that in case a committee arrives at a conclusion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. The clause also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant.

Though there may be merit in providing safeguards against malicious complaints, this clause penalises even false complaints (which may not be malicious). This could deter women from filing complaints. Recent Bills such as the Public Interest Disclosure Bill, 2010 (commonly known as the Whistleblower’s Bill), penalise only those complaints that are mala fidely and knowingly false.6 The National Advisory Council (NAC) has recommended that the entire clause be removed as it might deter victims from seeking protection of the proposed legislation.7

Exclusion of domestic workers


The definition of ‘employee’ specifically excludes ‘domestic workers working at home’. The draft Bill circulated by the Ministry in 20073 and that circulated by the NCW in 2010,2 both included this category of employees in the definition.

The NAC recommendedthat the Bill should be applicable to domestic workers as these employees, ‘especially live-in workers, are prone to sexual harassment and abuse, without access to any complaint mechanism or remedial measures.’7 However, the government stated that ‘it may be difficult to enforce the provisions of the Bill within the privacy of homes and it may be more practical for them to take recourse to provisions under criminal law.’8

International experience


Sexual harassment is a form of illegal employment discrimination in many developed countries including the US, UK and the European Union countries.9 In these domains, the definition of sexual harassment includes employer-employee relationship as well as a hostile work environment. This is similar to the current Bill. However, those laws differ in one important aspect, in that they are gender neutral. This Bill provides protection only to women, and not to men.

 Notes


[1]. Vishaka and others V. State of Rajasthan and others [1997 (6) SCC 241]

[2]. Revised Draft Bill, ‘The Prohibition of Sexual Harassment of Women at Workplace Bill, 2010’, National Commission for Women, http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf

[3]. Draft Bill, ‘The Protection of Women against Sexual Harassment at Workplace Bill, 2007’, Ministry of Women and Child Development, http://wcd.nic.in/protshbill2007.htm

[4]. 5th Economic Census (2005), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/index_6june08.htm

[5]. ‘Agenda No. 7 Review of implementation of Protection of Women from Domestic Violence Act, 2005’, Ministry of Women and Child Development, June 16, 2010, http://wcd.nic.in/agenda16062010/agenda_16062010_item7.pdf

[6]. Clause 16 of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

[7]. Press release, National Advisory Council, January 10, 2011, http://nac.nic.in/press_releases/10_january_2011.pdf

[8]. Rajya Sabha unstarred Question 3706, answered on December 13, 2010

[9]. The Civil Rights Act of 1964, United States;  Sex Discrimination Act (1975) and Employment Rights Act (1996), United Kingdom;  Sexual Harassment in the Workplace in EU Member States, Government of Ireland, 2004

Prepared by:

Tonusree Basu  Rohit Kumar

DISCLAIMER: This document is being furnished to you for your information.  You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”).  The opinions expressed herein are entirely those of the author(s).  PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete.  PRS is an independent, not-for-profit group.  This document has been prepared without regard to the objectives or opinions of those who may receive it.

http://www.prsindia.org/index.php?name=Sections&action=bill_details&id=6&bill_id=1402&category=46&parent_category=1

sexual harassment bill.pdf  Bill Text  (293.01 KB)
Bill Summary. Sexual Harassment.pdf  PRS Bill Summary  (70.89 KB)
Legislative Brief - Sexual Harassment - 20May11.pdf  Legislative Brief  (465.31 KB)
Vishaka.pdf  Vishaka Judgement  (36.38 KB)
draft_sexual_harassment_bill.pdf  Draft of 2007 Bill  (99.91 KB)

Related news articles

Bill on sexual harassment referred to parliamentary panel, DNA, Jan 16, 2011
NAC frowns on bill blow to maids, Telegraph, Jan 11, 2011
NAC for covering domestic workers in anti-harassment bill, Deccan Herald, Jan 10, 2011
Bill to prevent workplace sexual harassment tabled, Hindu, Dec 08, 2010
Sexual harassment bill tabled in Lok Sabha, DNA, Dec 08, 2010
Bill on sexual harassment at workplace introduced in Lok Sabha, Hindu, Dec 07, 2010

Conflicting signals

Posted in CONSTITUTION, COURTS, ENVIRONMENT, JUDICIARY, JUSTICE, SUPREME COURT by NNLRJ INDIA on May 24, 2011

V. VENKATESAN IN FRONTLINE

The Supreme Court judgment dismissing the curative petitions against its verdict in the Bhopal gas criminal case leaves observers nonplussed.

ON May 11, a Constitution Bench of the Supreme Court unanimously delivered a judgment that, perhaps, should never be considered a precedent. The Bench, comprising Chief Justice of India S.H. Kapadia and Justices Altamas Kabir, R.V. Raveendran, B. Sudershan Reddy and Aftab Alam, held that a judgment delivered by the Supreme Court could not bind a lower court and that no decision by any court, including the Supreme Court, could be read in a manner as to nullify the express provisions of an Act or the Code of Criminal Procedure (CrPC).

The judgment, according to several experts, is deeply flawed. The Bench delivered the judgment while dismissing curative petitions filed by the Central Bureau of Investigation (CBI) and others for recalling and setting aside the Supreme Court’s judgment in Keshub Mahindra vs State of Madhya Pradesh, delivered on September 13, 1996. In Keshub Mahindra, a two-judge Bench, comprising Justice A. Ahmadi and Justice S. Majmudar, had quashed the charge of culpable homicide under Section 304 (Part II) of the Indian Penal Code, framed by the sessions court, against nine Indian accused in the Bhopal gas disaster criminal case and had directed the trial court to frame charges against them under Section 304-A, IPC.

The three foreign accused – the then chief of the Union Carbide Corporation, Warren Anderson; UCC; and Union Carbide Eastern Inc. – were absconding and did not, like the Indian accused, appeal against the charge of culpable homicide framed by the trial court. The Madhya Pradesh High Court had upheld the charge of culpable homicide against the accused before they went in appeal in the Supreme Court.

Under Section 304 (Part II) of the IPC, whoever commits culpable homicide not amounting to murder shall be punished with imprisonment, which may extend to 10 years, or with fine or with both if the act is done with the knowledge that it is likely to cause death. Section 304-A, on the other hand, seeks to punish those causing the death of any person by doing any rash or negligent act not amounting to culpable homicide with imprisonment for a term that may extend to two years, or with fine, or with both.

More important, in Keshub Mahindra, the Supreme Court invoked its powers under Article 142 of the Constitution. This Article empowers the Supreme Court to pass such a decree or make such an order as is necessary for doing complete justice in any cause or matter pending before it, and such decrees or orders shall be enforceable throughout the country. In Keshub Mahindra, the court invoked this Article in order to avoid multiplicity of proceedings and to hold that the material led by the prosecution could only support charges under Section 304-A against the accused. It is fairly well settled that once a superior court holds that only Section 304-A of the IPC is applicable against the accused, Section 304 (Part II) will be inapplicable against the same accused in that case because the charge of negligence automatically excludes the charge of culpable homicide.

Surprisingly, the Supreme Court, in its May 11 judgment, did not deal with the question of how a decree or order made under Article 142 of the Constitution cannot be binding on a trial court. The curative petitions argued that because of the judgment in Keshub Mahindra, the trial court (Chief Judicial Magistrate, Bhopal) was barred from exercising its judicial power under Section 323 of the CrPC. This provision enables a magistrate to alter the charge of negligence by instituting the charge of culpable homicide against the accused and commit the case to the sessions court on the basis of evidence that comes on record during the trial.

But the trial court had observed that in view of the Supreme Court’s judgment in Keshub Mahindra, no court had the power to try the accused for an offence higher than the one under Section 304-A of the IPC. Accordingly, the Chief Judicial Magistrate, in his judgment delivered on June 7 last year, found eight of the Indian accused (one had expired during the trial period) guilty under Section 304-A and sentenced them to two years’ imprisonment.

Appeals have been filed in the sessions court with a prayer for the enhancement of the sentences against the accused on the grounds that the CJM erred in committing the trial of the case to the Sessions Court under Section 323 of the CrPC. These appeals, filed by the CBI and the State of Madhya Pradesh, are pending before the sessions court in Madhya Pradesh. Meanwhile, the CBI and others had filed the curative petitions in the Supreme Court in the hope of securing substantive justice for the victims and survivors of the disaster.

Patently flawed

Ironically, the Supreme Court’s holding in Keshub Mahindra was patently flawed as the CBI even in that case had argued that evidence on hand supported the charge of culpable homicide against the accused. But the May 11 judgment defends the Keshub Mahindra judgment to the hilt.

The Kapadia Bench observed: “In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying ‘on the materials produced by the prosecution for framing charge’. ‘At this stage’ is a kind of a constant refrain in that judgment.”

But those familiar with the Keshub Mahindra case in 1996 would aver that the Ahmadi-Majmudar Bench at that time simply and inexplicably ignored the materials cited by the CBI in support of the charge of culpable homicide. Therefore, its assertions that its “findings were based on materials gathered in investigation and brought before the Court till that stage” were not at all convincing, as they were contrary to facts.

In the curative petitions case, the Supreme Court was expected to examine the claims of the Ahmadi-Majmudar Bench for their veracity and set them aside, as they were contrary to facts. But the Kapadia Bench wrongly concluded that the 1996 judgment was not a fetter against the proper exercise of powers by a court under the CrPC and that the remedy for the curative petitioners lay in approaching the appellate/revisional courts to correct the magistrate who misread it.

The Supreme Court even felt vindicated by the arguments of the CBI and the State of Madhya Pradesh in the pending appeals before the Sessions Court in Madhya Pradesh. Observers are nonplussed that the apex court chose to rely on the arguments of a party in a pending case in a lower court, rather than independently examine the plea of the petitioners on merit.

‘Black day’

The Bhopal Group for Information and Action and other survivor organisations have expressed dismay over the judgment and called May 11 another black day for justice. They recalled that the Supreme Court, without conducting even one hearing, had dismissed the review petition filed by three survivor organisations against the Keshub Mahindra judgment in 1997. By its May 11 judgment, the Supreme Court heaped more injustice on the victims of the disaster, they said.

Legal researcher and commentator Usha Ramanathan, who has been closely following the Bhopal disaster litigation, put it succinctly: “The May 11 judgment shows that the Supreme Court lacked institutional memory with regard to what the Bhopal victims got out of the litigation. The option of curative petitions confers on the Supreme Court an extraordinary jurisdiction to correct its own past judgments. Yet, the court reaches an extraordinary conclusion and tells the lower court that it could violate its own order. It makes no sense. The court simply borrowed the formula suggested by the counsel for the accused. It should have either set aside the Keshub Mahindra judgment, or done nothing.”

The May 11 judgment also supports the view that the Supreme Court today sends discordant signals about the correct legal position. Recently, a two-judge Bench of the court led by Justice Markandey Katju passed strictures against a trial court judge for ignoring the Supreme Court’s ruling. The Kapadia Bench, however, thinks that there is nothing wrong if a lower court proceeds as if it is not bound by the Supreme Court’s ruling delivered earlier.

http://www.hinduonnet.com/fline/stories/20110603281110800.htm

The Sexual Harassment Bill, going forward

Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, SEXUAL OFFENCES by NNLRJ INDIA on April 11, 2011

KUMKUM SEN IN THE BUSINESS STANDARD

It’s been more than fifteen years since the Supreme Court passed its judgment in the Vishaka Vs. State of Rajasthan (Vishaka), and ten since the Medha Kotwal case. Vishakha constitutes the Indian Judiciary’s first pronouncement on gender justice in the workplace.“Harassment”was interpreted to include physical contact and advances, sexually coloured remarks, any physical verbal/non verbal overture or a demand/request, as being indicative, and not comprehensive. The Court prescribed certain guidelines and norms as representing the minimum standards to be followed by employers and other responsible persons in containing and dealing with harassment, bearing in mind that neither civil or penal laws provided adequate protection, till such time a law was enacted. Certain acts of sexual harassment constitute criminal offences, as under section 209 of the Indian Penal Code for performing an obscene act or utterance, and also under Sections 354 and 509 for outrage of modesty of women. But these provisions can not address the various insidious forms sexual harassment can take, and more important, the redressal is not the organisation’s responsibility.

In the absence of indigenous jurisprudence, the Supreme Court relied heavily on the International Convention of All Forms of Discrimination Against Women (CEDAW) which India had recently signed and ratified, and the Protection of Human Rights Act, 1993. However the Government took no interest in pushing the law.

On the other hand, various corporations, multinationals as well as domestic, particularly listed companies, which are subjected to higher degrees of transparency and disclosures, established their internal systems, including grievance cell and a Committee with a senior woman employee as the Chair. Welfare and safety requirements of the women in the work place, such as late night transport, night were firmed up after the murder of a BPO female employee by the cab driver. Instances of complaints and incidents usually do not escalate beyond the HR Department and the Committee. To the limited extent I have been involved as a legal adviser, such issues are usually effectively resolved, or any one party or both move out with or without a gentle nudge from the management. Otherwise, there is complete opacity, particularly in the fast growing services sector, where women are a significant part of the work force, in the implementation of all or any of the Vishakha safeguards, as there is no threat in non-compliance, in the absence of a law. Even then several complaints have reached the High Courts, and the victims have secured justice, notably in the Tata Metallic and Apparel Export cases. More often, the breach has been in the constitution and functioning of the Committee and this was exposed in Medha Kotwal’s Petition before the Supreme Court, wherein on the revelation that the Government was the worst offender, the Court called upon the Central & State Governments and various professional bodies, such as the Bar Council of India to disclose the measures taken by them.

The Bill, introduced in 2010 and referred last month to a Standing Committee, has finally moved, notwithstanding enormous resistance. It.has its critics, but is well drafted., and endeavours to include every type of victim in its definition of an “Aggrieved Women”, who does not have to be an Employee to qualify and to bring within its ambit , students, research scholars, patients. “Employee” has been amplified to include trainees, apprentices, contract and adhoc workers. Perhaps inclusion of “service provider” and “customer” would have provided a more inclusive connotation. Contrary to media reports, the Bill specifically includes domestic worker and “dwelling house” belying the popular impression that this sector has been ignored.

“Workplace” definition deals with every kind of environment which would qualify, in the private and government sectors as well as dwelling places, vehicles, aircrafts, different destinations, hotels in trying to capture all possible locations where harassment having a nexus with workplace or the victim can be perpetrated. The acknowledgement of this concept is critical in the context of the diversity of locations where harassments are perpetrated, rape of a female complainant in a police station being an example.

Interestingly “sexual harassment” is not defined. Section 3 of the proposed bill describes this to include unwelcome sexually determined behaviour, and the various items conceptualised in Vishakha, making it clear that is not limited to any assurance of preferential or threat of detrimental treatment, conduct which is humiliating or inducive to a hostile and unhealthy work environment.

While laws should aim at obliterating sexual harassment and the mindset that evokes such behaviour, panic levels should not be escalated. Every light flirtation or a wolf whistle is not necessarily an act of sexual harassment. Every environment and not all classes of harassment cannot be subject to a uniform policy.

What doesn’t make headlines is the gender neutral subtle and non-violent harassment in the workplace, unrelated to sexual expectations or quid pro quo, which can be based on colour, caste, religion, nationality, age, political affiliations, and the aggression is manifested by way of belittling observations, persistent criticism of work, withholding resources. Till such time the law makers and the Government acknowledge this,,,the victims of such harrasment are without recourse.

Kumkum Sen is a partner at Bharucha & Partners Delhi office and can be reached at kumkum.sen@bharucha.in

Follow

Get every new post delivered to your Inbox.

Join 4,093 other followers

%d bloggers like this: