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

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Amendments of the Registration of Births and Deaths Act, 1969 to include Registration of Marriages

Posted in MARRIAGE LAWS by NNLRJ INDIA on April 12, 2012

NATIONAL LEGAL RESEARCH DESK

The Union Cabinet today approved the introduction of a Bill in the Budget Session of Parliament to amend the Registration of Births and Deaths Act, 1969 to include registration of marriages as well, so that the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.

The Cabinet also approved introducing a Bill in Parliament to further amend the Anand Marriage Act, 1909 to provide for registration of marriages under the Act.

The proposed Bills will be beneficial for the women from unnecessary harassment in matrimonial and maintenance cases. It will also provide evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage.

The Hon`ble Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized and inter alia directing that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.

The Committee on Empowerment of Women (2006-2007) in its Twelfth Report (Fourteenth Lok Sabha) on “Plight of Indian Women deserted by Indian husbands” has viewed that all marriages, irrespective of religion should be compulsorily registered and desired that the Government to make registration of all marriages mandatory, making the procedure simpler, affordable and accessible.

The 18th Law Commission of India in its 205th Report titled” Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” vide paragraph (iv) recommending that “registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government”.

The 18th Law Commission of India further in its 211th Report titled “Laws on Registration of Marriage and Divorce- A proposal for consolidation and Reform”, recommending for a Parliamentary Legislation on Compulsory Registration of Marriages by enacting of a “Marriage and Divorce Registration Act” which may be made applicable to the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions”.

The Registration of Births and Deaths Act, 1969 (18 of 1969) is an Act to provide for the regulation of registration of births and deaths and for the matters connected therewith. Accordingly, provisions have already been provided in the said Act for Registration establishment consisting of Registrar-General, Chief Registrar and Registration Division, District Registrars and Registrars. Further, procedures for registration of births and death and for maintenance of records and statistics are provided for in the said Act. Also, by virtue of the powers conferred under section 30 thereof, rules for compulsory registration of births and deaths have been framed by all the State Governments and Union territory Administrations. Therefore, if the said Act is suitably amended to include registration of marriages as well, then the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.

The registration of marriages of the parties under the proposed amendment would not affect any right recognized or acquired by any party to marriage under any law, custom or usage.

Separate Investigation & Prosecution Cadre Proposed for Speedy Justice

Posted in CRIMINAL JUSTICE SYSTEM by NNLRJ INDIA on February 29, 2012

Expeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping. He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.

While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it. He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.

The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:

The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.

Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.

Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.

Is this real justice?

Posted in DEATH PENALTY by NNLRJ INDIA on September 11, 2011
DEATH PENALTY

DEATH PENALTY

PAMELA PHILIPOSE IN THE HINDU

Capital punishment is retributive justice and abolishing it is a risk that modern states need to take, says Pamela Philipose.

Gabriel Garcia Marquez‘s classic, One Hundred Years of Solitude, begins with a line that could be read as a powerful argument against capital punishment: “Many years later, as he faced the firing squad, General Aureliano Buendia was to remember that distant afternoon when his father took him to discover ice.”

The imminent extinction of a sentient life endowed with thought and memory, linked intimately to the lives of others, is a fearsome thing. So it is entirely understandable why that angst-ridden question — Should India remove capital punishment from its statute books? — refuses to go away. Here we are, with our much-feted legacy of non-violence, with our burnished democratic Constitution and Credentials, still attached by the feet to the ever-shrinking corner of the globe which continues to defend the death penalty.

Uneasy defence

It has been an uneasy defence for sure. The umbrella formulation that the death penalty should only be accorded in the “rarest of rare cases”, put forward in 1980 by the Supreme Court in Bachan Singh v. State of Punjab, has remained an uncertain talisman with Indian courts interpreting it in an astoundingly variegated manner, but it has remained a talisman nevertheless. Indian Presidents, too, have routinely dragged their feet over rejecting mercy pleas. The country has also, incidentally, seen attempts to institutionally “reform” the administration of the death penalty. The ‘Model Prison Manual for the Superintendence & Management of Prisons In India’ (2003) recommends that all prisoners going to meet their fate at the gallows be made to wear “a cotton cap with flap” so that he/she will not be able to see the gallows — an highly ineffectual aid, surely, under such circumstances.

Internationally, India continues to remain in an ambiguous position. It is party to the International Convention on Civil and Political Rights that requires countries to move towards the abolition of capital punishment, but has desisted from ratifying the Second Optional Protocol to the Convention and last November it voted along with China and Saudi Arabia to oppose a UN resolution for a moratorium on the death penalty.

So while there may be some curling of toes over the prospect of denying criminals on death row their right to life, the Indian State has consistently balked at doing away with the hanging option. By and large, the argument put forward by the Law Commission of India in 1967 continues to hold sway. In its 35th Report, the Law Commission pronounced that “Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

Necessary risk

The fact is that 139 countries in the world — and their number is rising not declining — despite serious security challenges have taken this “risk”, precisely because it is a risk that modern and modernising states should take, given that not doing so would compromise the very notion of an enlightened state. Remember that many of these countries have had long and grisly trysts with capital punishment. Pre-19th century England, for instance, had over 200 “crimes” that could invite a hanging sentence. The list included thievery (goods valued at five shillings and more), maiming horses, impersonation and ‘sodomy’.

One of the justifications for persisting with the death penalty is, of course, that inchoate, arbitrary, unquantifiable and often irrational concept known as “public opinion”. Indian courts, incidentally, have been sensitive to “public opinion”. In a judgment, Dhananjoy Chatterjee v State of West Bengal, that had led in 2004 to the last public hanging India has witnessed so far, the Supreme Court stated: “Imposition of appropriate punishment is the manner in which the courts respond to society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime…”

But “society’s cry for justice” is an uncertain foundation for justice as Arthur Chaskalson, who served as Chief Justice of South Africa from 2001 to 2005, reiterated. He put it this way, “Public opinion may have some relevance to the enquiry, but in itself it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication…”

The founding fathers and mothers of post-Independence India did not ban capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. But it was not as if they did not envisage the possibility of the country exercising that option at some point. Amiyo Kumar Ghosh, a member in the Constitutent Assembly, while opposing an amendment that wanted a partial ban on capital punishment, went on to say, “I think that with the growth of consciousness, with the development of society, the State should revise a punishment of this nature…”

Why persist?

The questions we then need to ask is why, despite the long decades that have intervened since those words, India still cannot countenance such a possibility. Why does it continue to perceive the hangman’s noose as coterminous with the scales of justice? Why does it settle for peremptory and irrevocable responses to heinous crimes, when the world is engaging with ideas of restorative rather than retributive justice? Can’t post-independence India not hold itself to standards higher than those set by its one-time imperial rulers, standards that had been sharply critiqued by the freedom movement?

A passage from Bhagat Singh’s last petition to the Punjab governor should give us pause: “As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right’ serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e., we claim to be shot dead instead of to be hanged.”

He and his comrades in arms, Rajguru and Sukhdev, were hanged on March 23, 1931.

http://www.thehindu.com/arts/magazine/article2442039.ece

Let us amend the law, it is only fair to women

THE HINDU / JUSTICE DR  A R LAKSHMANAN

This refers to the article “A law that thwarts justice” ( The Hindu , June 27, 2011) by Ms. Prabha Sridevan, former Judge of the Madras High Court. I have analysed it and am in agreement with the views expressed by the author for my own reasons.

As Chairman of the Law Commission of India, I took up for consideration the necessity of amending Section 15 of the Hindu Succession Act, 1956 which deals with the general rules of Succession in the case of female Hindus dying intestate — not having made a will before one dies — in view of the vast societal changes that have taken place.

The Hindu Succession Act, 1956 is part of the Hindu Code which includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

The Hindu Succession Act made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband’s property as also to her father’s property. The Act was amended in 2005 to provide that the daughter of a co-parcener in a joint Hindu family governed by the Mitakshara Law shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

Scheme of succession

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu.

Source of acquisition

The group of heirs of the female Hindu dying intestate is described in 5 categories as ‘a’ to ‘e’ of Section 15 (1) which is illustrated as under:

In a case where she dies intestate leaving property, her property will firstly devolve upon her sons and daughters so also the husband. The children of any pre-deceased son or daughter are also included in the first category of heirs of a female Hindu;

In case she does not have any heir as referred to above, i.e., sons, daughters and husband including children of any pre-deceased sons or daughters (as per clause ‘a’) living at the time of her death, then the next heirs will be the heirs of the husband ;

Thirdly, if there are no heirs of the husband, the property would devolve upon the mother and father ;

Fourthly, if the mother and father are not alive, then the property would devolve upon the heirs of the father which means brother, sister, etc ;

The last and the fifth category is the heirs of the mother upon whom the property of the female Hindu will devolve if in the absence of any heirs falling in the four preceding categories.

This is the general rule of succession, but the Section also provides for two exceptions which are stated in Sub-Section (2). Accordingly, if a female dies without leaving any issue, then the property inherited by her from her father or mother will not devolve according to the rules laid down in the five entries as stated earlier, but upon the heirs of father. And secondly, in respect of the property inherited by her from her husband or father-in-law, the same will devolve not according to the general rule, but upon the heirs of the husband.

The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did not contain any clause corresponding to Sub-Section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The intent of the legislature is clear that the property, if it originally belonged to the parents of the deceased female, should go to the legal heirs of the father.

So also under Clause (b) of Sub Section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and after acquiring the full right, would not, in any way, alter the rules of succession given in Sub Section (2) of Section 15.

The 174 {+t} {+h} Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

The basis of inheritance of a female Hindu’s property who dies intestate would thus be the SOURCE from which such female Hindu came into the possession of the property and the manner of inheritance which would decide the manner of devolution.

The term ‘property’ though not specified in this Section means property of the deceased heritable under the Act. It includes both movable and immovable property owned and acquired by her by inheritance or by devise or at a partition or by gift or by her skill or exertion or by purchase or prescription. This Section does not differentiate between the property inherited and self-acquired property of a Hindu female; it only prescribes that if a property is inherited from husband or father-in-law, it would go to her husband’s heirs and if the property is inherited from her father or mother, in that case, the property would not go to her husband’s, but to the heirs of the father and mother.

This is very aptly illustrated by the following illustration:- A married Hindu female dies intestate leaving the property which is her self-acquired property. She has no issue and was a widow at the time of her death. As per the present position of law, her property would devolve in the second category, i.e., to her husband’s heirs. Thus, in a case where the mother of her husband is alive, her whole property would devolve on her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid down in case of a male Hindu dying intestate, i.e., if the father of her deceased husband is alive, the next to inherit will be her father-in-law and if in the third category, the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

Thus, in the case of the self-acquired property of a Hindu married female dying intestate, her property devolves on her husband’s heirs. Her paternal and material heirs do not inherit, but the distant relations of her husband would inherit as per the husband’s heirs.

The case for change

The Hindu Succession Act, 1956 was enacted when, in the structure of the Hindu society, women hardly went out to work. There has been a vast change in the social scene in the past few years and women have made progress in all spheres. The consequence is that women are owning property earned by their own skill. These situations were not foreseen by the legislators.

If that is so, what is the impact of these socio-economic changes? Do they warrant any change in the law of succession in relation to the property of a female Hindu dying intestate? What is the fallout of a gradual disintegration of the joint Hindu family and the emergence of nuclear families as a unit of society over the years in the context of law of succession governing the issue at hand?

A fundamental tenet of the law of succession has been the proximity of relation in which a Successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case. The fact that women have been given the right to inherit from her parental side also assumes relevance in the present context. These developments and changes lead to competing arguments and approaches that may be taken in re-defining the law of succession in case of a female Hindu dying intestate. Thus, three alternative options emerge for consideration, namely:

1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family.

2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family.

3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband.

The third option may be taken first as this can be disposed of summarily. The option essentially means continuation of the status quo. We have seen earlier that socio-economic changes warrant corresponding changes in the law as well.

We may now take up the first option. The protagonists of this approach contend that the general order of succession reflects a gender bias. It will be relevant to refer to a passage in Pradhan Saxena – Succession Laws and Gender Justice in Re-defining Family Law in India by Archana Parasar, Amit Dhanda, New Delhi.

The supporters of the said approach contend that the joint family system has slowly eroded and that an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family, a married woman’s dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children and husband are not alive. She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law.

Accordingly, it is urged that Section 15(1) should be modified to ensure that the general order of succession does not place a woman’s husband’s heirs above those who belong to her natal family like her father and mother and thereafter, her brother and sister. It is contended that when a man dies intestate, his wife’s relatives do not even figure in the order of succession despite the manner in which he may have acquired the property. In view of this, parity is sought in the case of a female by applying the same rules as applicable to male’s property.

Accordingly, it is suggested that it would be better to amend Section 15(1) to specify the general rules of devolution, which will apply not only to self-acquired property by a woman, but also to other property acquired through her family, gifts, etc. The only proviso which would then be needed would be the property that a woman acquires from her husband’s family.

The second option in this regard is that the property of a female Hindu dying intestate devolves upon the heirs depending upon the source from which, the said property was acquired by her, the self-acquired property of such female be simultaneously inherited by her heirs both from the husband family as well as the natal family in equal share. The fact remains that in spite of her closeness to and dependence on her natal family, her relations with her husband’s family are not separated and uprooted in entirety. She continues to be a member of her husband’s family, getting support from it in all walks of life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed as claimed by the protagonists of the first option. Lest, there may be social and family tensions which may not be in the overall interest of the family as a whole and as such, ought to be avoided. In any case, it is open to the female Hindu to bequeath her property the way she likes by executing a Will.

Conclusions

In the present scenario, when amendments are made to the effect that women have been entitled to inherit property from her parental side as well as from husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

If this amendment is brought about, the effect will be as under:

A married Hindu female dies intestate leaving self-acquired property at the time of her death, the only surviving relatives being her mother-in-law (L) and her mother (M).

Pre-Amendment

As per the present law, her property would devolve entirely on ‘L’ and ‘M’ will not get anything from her property.

Post Amendment

By the proposed amendment, her mother-in-law and mother should equally inherit her self-acquired property.

A married Hindu female dies intestate leaving self-acquired property and she has no heirs as per Clause ‘a’ of the Schedule, the only surviving relatives are her husband’s brother and sister (BL & SL) and her own brother and sister (B&S).

Pre-Amendment

As per the present law, her property would normally devolve upon ‘BL’ and ‘SL’. ‘B’ and ‘S’ do not inherit anything from her in this property.

Post Amendment

By the proposed amendment, her own brother and sister should equally inherit along with her brother-in-law and sister-in-law.

The above amendment, suggested by me as Chairman of 18 {+t} {+h} Law Commission as early as in June 2008 in the public interest, is still pending with the Union Law Ministry.

(The writer is a former Judge of the Supreme Court of India and former Chairman, Law Commission of India. His email id is jusarlakshmanan@ gmail.com)

Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

When roads become killing fields, shouldn’t we act?

Posted in COMPENSATION by NNLRJ INDIA on July 10, 2011
Road Accidents In India

Road Accidents In India

Dr. Justice A. R. Lakshmanan IN THE HINDU

India has one of the largest road networks in the world — 3,314 million km — consisting of national highways, expressways, State highways, major district roads, other district roads and village roads. About 65 per cent of freight and 86.7 per cent passenger traffic is carried by the roads. The motor vehicle population has recorded a significant growth over the years. Two-wheelers and cars (personalised mode of transport) constitute more than three-fourths of the motor vehicles.

According to a Maruti Suzuki weblog, more than 1,00,000 Indians are dying every year in road accidents. More than a million are injured or maimed. Many years ago, a study found that road accidents cost the country some Rs.550 billion every year.

A recent survey by the Central Road Research Institute shows that more than 90% pedestrians feel unsafe while crossing the roads, while they comprise more than 50% of road victims.

Is it due to a lack of apt provisions in our law that travel through Indian roads is a tryst with death?

All the more so, because despite the Supreme Court’s directions to the police and all other authorities entrusted with the administration and enforcement of the Motor Vehicles Act, 1988 and generally with the control of traffic in regard to traffic safety, reckless driving by government buses has not diminished.

In view of the above, I, as Chairman of the Law Commission of India, prepared a Consultation Paper on this important subject and suo motu made a recommendation to the Government of India through the Law Ministry and the Report No.234 is pending with the Ministry. In this article, I have dealt with the present Law of India IPC 1860, viz., Sec.279, 304A, 336, 337 and 338, the Motor Vehicles Act, 1988, the Road Traffic Act, 1988 and the Road Regulations 1989.

The then Law Commission also submitted its report (42nd Report) in June 1981 and examined the provisions of the IPC.

Any State government may, after previous publication, by notification make rules for the purpose of carrying into effect the provisions/rules, etc., in different areas of the State. Such rules may provide for

  • the removal and the safe custody of the vehicles including their loads which have broken down or which have been left standing or have been abandoned on a highway;
  • the determination, maintenance and management of parking places for the use of vehicles and animals and the fees, if any, which may be charged for their use;
  • prohibiting the use of footpaths or pavements by vehicles or animals;
  • prohibiting or restricting the use of audible signals at certain times or in certain places;
  • regulating the loading of vehicles and in particular, limiting the loads carried in relation to the size and nature of the tyres fitted;
  • a right of way for ambulances and fire brigade vehicles;
  • the control of animals likely to frighten other animals or pedestrians;
  • the control of children on highways;
  • prohibiting the riding by more than two persons at the same time on cycles other than cycles designed for the purpose;
  • prohibiting the riding of more than two cycles abreast;
  • limiting the age of drivers of vehicles;
  • regulating the driving of vehicles and animals at night; and
  • regulating the use of highways by pedestrians. The State government may, after previous publication, by notification make rules regulating the construction, equipment and maintenance of vehicles used on highways and public places. Different rules may be made for different areas of the State.

The rules may be made under this Section governing any of the following matters either generally or in respect of public vehicles of a particular class or description or in particular circumstances, namely:

  1. the width, height and length of vehicles;
  2. the size, nature and condition of wheels and tyres;
  3. brakes;
  4. lamps and reflectors;
  5. warning devices;
  6. the inspection of vehicles by prescribed authorities;
  7. regulating the particulars exhibited on vehicles and the manner in which such particulars shall be exhibited.

The State government may also make rules for regulation of the use of public vehicles, viz., the issue, renewal or cancellation of driving licences, issue of permits etc.

  • the documents, plates and marks to be carried by public vehicles, the manner in which they are to be carried and the language in which such documents is to be expressed;
  • the badges and uniforms to be worn by drivers;
  • the fees to be paid for permits, driving licences, duplicate copies of permits or driving licences, plates, badges, and appeals preferred before statutory authorities;
  • the limiting of the number of public vehicles or public vehicles of any specified class or description, for which permits may be granted in any specified area, or on any specified route or routes;
  • the fixing of maximum or minimum fares or freights;
  • the maximum number of passengers or the maximum quantity of goods that may be carried in a public vehicle;
  • the conditions subject to which passengers, luggage or goods may be carried in a public vehicle;
  • the construction and fittings of and the equipment to be carried by public vehicles, whether generally or in specified areas or on specified routes; and
  • the safe custody and disposal of property left behind in pubic vehicles;

Traffic personnel are not controlling traffic and discharging their duties effectively. People, whether educated or illiterate, have scant respect for traffic rules and regulations. The traffic personnel should give immediate attention to the following and take effective steps to enforce discipline in regard to:

  • Non-observance of traffic rules;
  • Jumping the red light;
  • Crossing the speed limit;
  • Driving without valid licence;
  • Driving under the influence of liquor/drugs;
  • Driving while talking on the mobile;
  • Driving without helmet;
  • Overloading of passengers in autos/share autos;
  • The driver’s seat is occupied by a minimum of three persons in share autos/other autorikshaws and vehicles are parked haphazardly. Over-speed of scooter/motorcycle, crossing the yellow line or violating traffic rules;
  • An entire family (minimum four persons) riding a scooter/motorcycle without realising that this is a traffic offence and such travel is at the risk of their lives;
  • Government buses, no rule or regulation. Parking them at any place;
  • One-way traffic signal/total violation;
  • Suffocating jam-packing of stage carriages;
  • Confiscation of vehicles fitted with LPG cylinders which are meant for home kitchen, arresting and prosecuting the owners/drivers of such vehicles;
  • Weigh bridges should be installed at all entry and exit points to and from a city as well as toll collection centres to keep in check overloading of vehicles;
  • Driving schools to impart training at a nominal fee by the government;
  • Excess collection of fares by omnibuses during festival seasons. Stringent measures to be taken forthwith to cancel the licence of such offenders;
  • There should be no exemption to Government vehicles from insurance against third party risk. Sec. 146 of the Motor Vehicles Act should be amended for the purpose;
  • Enormous increase and growth in the population of vehicles in big cities;
  • Easy availability of driving licence (reason is obvious);
  • Increasing tendency of consumption of liquor while driving;
  • There is pride/ego involved in fast driving of costly cars, with a sense of false status, by the children of rich people. (Refer BMW cases);
  • Checking/setting and enforcing blood alcohol concentration limit for drivers with random breath testing at sobriety checkpoints;
  • Speedbreakers affect traffic flow and are safety hazards, if not properly constructed;

Traffic-related measures:

  • Speed control
  • Entry restrictions
  • Separate lane for bus and cycle, etc.
  • The situation in respect of State roads is still worse. The private sector also needs to be involved in the maintenance of national highways/State highways.
  • Octroi and sales tax barriers are to be done away with now that the VAT system has come into force in many States.
  • Mobile court/mobile policing should be introduced round the clock and it should not be limited to peak hours.
  • Digging of roads by various agencies like telephones/electricity/corporation causing inconvenience to roadusers.
  • Driving in the wrong direction, breaching speed limits, jumping traffic lights are common violations.
  • Need for recognised driving training schools
  • Auto drivers/share auto drivers fleecing passengers at railway stations.
  • Misbehaviour by auto/share auto drivers with poor passengers. Periodical training must be given to them by the police.
  • Introduction of mini-buses.
  • Steps to prohibit the use of pathways on either side of the road for running tea stalls, petty shops, vending fruits and vegetables, etc., should be implemented.

Measures to prevent road accidents may be preventive, precautionary and punitive. There is no denying that there is a need for improved road-watch, surveillance and detection, effective and holistic regulation of all kinds of traffic on the roads and proper deterrence. Roads are used not only by motorised transport but also by non-motorised transport as well as pedestrians. There is no comprehensive Central legislation to effectively and holistically regulate all kinds of traffic. The Motor Vehicles Act, 1988 is relatable to Entry 35 of the Concurrent List and the National Highways Act, 1956 is relatable to Entry 23 of the Union List. The subject matter of roads, traffic thereon, and vehicles other than mechanically propelled vehicles falls under Entry 13 of the State List and therefore, outside the purview of Parliament. The Seventh Schedule of the Constitution will be required to be amended for such comprehensive Central legislation. The Law Commission feels that there is a need for a comprehensive Central road traffic law.

As an important part of the enforcement measures, there should be compulsorily installed CCTV cameras at all vulnerable points to be determined by an expert committee to curb traffic violations.

There should be a vigorous campaign on the electronic media, including Doordarshan, All India Radio and private TV channels through regular programmes and debates, so as to create awareness among the general public of the imperative necessity to strictly follow traffic rules as well as highlight the consequences of rash and negligent driving.

As an important part of the enforcement measures, there should be established, through public-private partnership, recognised driving training schools in different parts of the country, equipped with simulators and obliged to follow properly devised driving training modules and impart training at a nominal fee.

As an important part of the enforcement measure, Rule 118 of the Motor Vehicles Rules, 1989, making it mandatory for the notified transport vehicles to be fitted with an irremovable or tamper-proof speed governor sealed with an official seal of the Transport Authority, should be enforced more vigorously. Government vehicles should not be exempted from insurance against third-party risk and Section 146 of the Motor Vehicles Act should be amended for the purpose.

(The writer is a former Judge of the Supreme Court of India, and former Chairman of the Law Commission of India. His email is: jusarlakshmanan@ gmail.com)

 

LEGAL REFORMS TO COMBAT ROAD ACCIDENTS – LAW COMMISSION REPORT

http://www.thehindu.com/opinion/open-page/article2215902.ece

 

Campaign Mode Approach to Reduce Pendency in Courts

Posted in COURTS, CRIMINAL JUSTICE SYSTEM, GOVERNANCE, JUDICIAL REFORMS, JUSTICE by NNLRJ INDIA on July 1, 2011

Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice  IN Calcutta on the campaign mode approach to reduce pendency in couts:

Jawaharlal Nehru, on the afternoon of March 19, 1955, while addressing the members of the Punjab High Court at the inauguration of its new building in Chandigarh, said, “Justice in India should be simple, speedy and cheap.”  He remarked that litigation was a disease and it could not be a good thing to allow any disease to spread an then go out in search of doctors.

At a Joint Conference  of Chief Ministers and Chief Justices held on August 16, 2009, the Hon’ble Prime Minister observed :

Judicial review has breached unprecedented frontiers.  Yet, amidst such strengths, brilliance and dynamism, India has to suffer the scourge of the world’s largest backlog of cases and timelines, which generate surprise globally and concern at home.  The expeditious elimination of this scourge is the biggest challenge for such conferences and should constitute the highest priority for all of us.

The judiciary realised that one of the drawbacks of the justice delivery system was denial to the common man, of access to justice.  This truism was recognised by the judiciary and concern of the Courts in that behalf was reflected in Bihar Legal Support Society vs Chief Justice of India (1986 (4) SCC 767) where the Court said:

….that the weaker section of Indian Humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy.  They are not aware of the rights and benefits conferred upon them by the Constitution and the law.  On account o their socially and economically disadvantageous position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice.

To quote from the figures compiled by the Supreme court, a total of 42,17,903 number of cases were pending in the High Courts as on 30th September, 2010 comprising of 33,36,256 Civil Cases and 8,81,647 Criminal cases.   In the Subordinate Courts, this figure was 2,79,53,070 comprising 78,56,456 Civil Cases and 2,00,96,614 Criminal cases.  It is estimated that in some of the subordinate courts over 30-40 percent of arrears relate to petty cases and out of the total pending cases, 9% of the cases were pending for 10 years and above and 24% cases were pending for 5-10 years in both, High Court and Subordinate Courts.  Alarmed with the increasing number of pending cases, a Vision Statement was adopted in the National Consultation on Strengthening Judicary towards Reducing Pendency and Delays held on October 24-25, 2009.  The Statement contained a roadmap for improving justice delivery and legal reforms and steps to reduce pendency in Courts from the present 15 years to 3 years by 2012.  In the backdrop of this, a campaign mode approach is being launched from today the 1st July, 2011 till 31st December, 2011 to reduce pendency.    It is also the endeavour to dispose of long pending cases pertaining to senior citizens, minors, disabled and other marginalized group.

Though the target may not be reached in 2012, ongoing efforts to reduce pendency need to be given greater momentum, in view of the various measures initiated by the Government in recent times and the substantial funding made available.

Government had, in 2007 envisaged a programme under    e-Courts Project for computerization of 12000 Courts with a cost of         Rs. 441.8 Crores.  However, with the pace of time, the Project cost has also increased and the Government has now approved a revised cost of Rs. 935 Crores for the computerization of 12000 Courts by March, 2012 and another 2249 Courts by March, 2014.  West Bengal is one of the high performing States wherein we are aiming to complete the connectivity by July-August this year, ahead of the targeted time.  Citizen centric services will be available through this project and a national arrears grid will come into being.

The Law Commission of India in their 230th Report have taken a serious note of the ever mounting arrears in the Courts and have suggested the following measures to reverse the trend:

(i)   Grant of adjournments must be guided strictly by the provisions of Order 17 of the Civil Procedure Code;

(ii)   Many cases are filed on similar points and one judgment can decide a large number of cases.  Such cases should be clubbed with the help of technology and used to dispose other such cases on a priority basis;  this will substantially reduce the arrears;

 (iii)  Judges must deliver judgments within a reasonable time and in that matter, the guidelines given by the apex court in the case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must be scrupulously observed, both in civil and criminal cases;

 (iv) Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an-hour;

 (v)  Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes.  The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involved complicated questions of law or interpretation of Constitution;

 (vi)  Judgments must be clear and decisive and free from ambiguity and should not generate further litigation.  Lord Macaulay’s following statement made 150 years ago must be a guiding factor:

 “Our principle is simply this –

Uniformity when you can have it,

Diversity when you must have it,

In all cases, Certainty

 (vii)  Lawyers must not resort to strike under any circumstances and must follow the decision of the Constitution Bench of the Supreme Court in the case of Harish Uppal (Ex-Capt.) v. Union of India reported in (2003) 2 SCC 45;

 (viii)    Judges and Lawyers, both have to change their mindsets.  Unles the mental barriers to reforms are mellowed, all doses of external remedies are bound to fail.

One must remember Gandhiji’s words “If you want to change anything, you be the change.

 During the campaign for disposal of cases, following steps need to be taken:

(a)  All Session Trials are required to be dealt with by Fast Track Courts;

(b)  All cases where the offences are compoundable are required to be disposed of on priority basis;

(c)  All Magistrates need to be directed to dispose of the cases under Motor Vehicles Act on priority basis;

(d)  A special time-bound drive to be donducted to sispose of Summary Trials under Chapter XXI of Cr.PC by the District Judges and Judicial Magistrates;

(e)  District Judges and Chief Judicial Magistrates to take up applications for withdrawal of prosecution u/s 321 of Cr.PC on priority basis;

(f)  In Courts where criminal appeals have also been given in the cases of criminal revisions pending in any court in excess of twenty five in number to be withdrawn and transferred to courts where such appeals are below twenty five in numbers.

(g) Frame Case Flow Management Rules for the Subordinate Courts.  The Rules also provide to put the cases into three different tracks, specifying time limit for each track;

Some of the High Courts have already drawn up their plans for taking up the mission mode approach for reduction in the pendency.   Their plan consists of the following measures:

(a)   Instructed Magistrates to hold Courts in Jails for disposal of petty cases involving undertrial prisoners;

(b)   Constitute Committees at District level involving District Judge, Collector, Superintendents of Police and Jails etc. for discussing the issues relating to criminal justice system;

(c)   Notify case flow management rules;

(d)   Presiding Officers of Magisterial Courts are ordered to hold Courts on Saturdays, alternatively to dispose of petty cases under the Motor Vehicle Act, NI Act, Municipal laws and other such acts.;

(e)   District & Sessions Judges have been directed to rationalize the work load in different Courts;

 (f)     Set up Morning/Evening/Shift/Holiday Courts;

 (g)   Organise Mega Lok Adalats in each District and in the High Court during the financial year 2011-12;

 (h)   Incorporate new Rules for providing faster service of process, hearing on day to day basis, automatic termination of stay after the expiry of two months in cases seeking challenge/stay/transfer the lower court proceedings.

To facilitate the momentum for reduction in pendency, Government of India has made substantial funding.  Rs. 5000 Crores have been awarded by the 13th Finance Commission for utilisation during the next 5 years for improving the justice delivery system through setting up of morning/evening/shift courts, Lok Adalats, Mediation, etc.   Funds for infrastructural development have increased five fold in the current Budget to Rs. 500 Crores.

The Gram Nyayalayas Act, 2008 was enacted by the Government on 2nd October, 2009 to provide for establishment of Gram Nyayalayas at the grass root level to provide access to justice at the doorsteps of the citizens with a view to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities.  A sum of Rs. 150 Crores has been provided in the current financial year for starting the Gram Nyayalayas.  States like Madhya Pradesh, Maharashtra, Rajasthan and Orissa have already notified and operationalised them.  The Gram Nyayalayas have been envisages to grant relief to the litigants within six months of the registration of cases.

While Government of India is providing sufficient funds for speedy disposal of cases and reduction in the pendency, unless the vacancies are filled up, both in the Higher and Subordinate Judiciary, all efforts being made would not be able to bring about desired fruits.  I would, therefore, urge the Chief Justices to embark upon a plan to fill up as many vacancies in the High Court and the Subordinate Courts during this campaign mode approach for reduction in pendency.

I would like this opportunity to thank the Chief Justices and the State Governments in their approach for the Mis sion Mode Programme for Delivery of Justice and Legal Reforms which commenced on 26th January, 2010 with a view to reduce congestion in jails.   The leadership rendered by all the Chief Justices for realizing the goal and to take further steps in this regard, resulted in deciding cases of over 7.10 lakhs undertrials till 31.5.2011.  This must have brought cheers to as many families also.  I hope that the interest and the leadership shown for the cases of the undertrials by the Chief Justices and the State Governments would be carried forward during this campaign for reduction of overall pendency in the Courts which would help in mitigating the miseries of the litigants and their families.”

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?

Meeting of Consultative Committee on Law & Justice Discussions on E-Courts, Justice Delivery System, Law Commission Report

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on May 18, 2011

The Parliamentary Consultative Committee meeting of Ministry of Law and Justice was held under the chairmanship of Shri M Veerappa Moily, Minister for Law and Justice on 16 May 2011 in New Delhi.  The meeting was attended by Members of Parliament (MPs) as Members of the Consultative Committee.  The officials from Ministry of Law and Justice and NIC attended the meeting.

The Chairman and Minister for Law and Justice apprised the Members of the Committee on Action Taken Report of the last meeting held on 6 December 2010:

  • A status on setting up of family courts in the States was informed.
  • Regional Consultations were held on Electoral Reforms in Bhopal, Kolkata, Mumbai, Lucknow, Chandigarh and Bangalore jointly with the Election Commission of India.  During these meetings, 13th Finance Commission Recommendations were also discussed with the Chief Justices of High Courts.
  • Implementation of 13th Finance Commission recommendations and utilization of grants was discussed in a State Level Conference on 5th May, 2011 with Law/Home Secretaries, Finance Secretaries and Registrar Generals of the High Courts.  15 States have formulated State Litigation Policy and sent a copy to Department of Justice which is under examination.

The other major issues discussed at he meeting pertained to the E-Court Project, improving justice delivery – steps to reduce pendency, implementation of reports of Law Commission of India and Rajiv Gandhi Advocate’s Training Scheme.

 E-Court Project – The scheme of computerization of district and subordinate courts in the country and for upgradation of ICT infrastructure of the higher courts was approved at a cost of Rs.441.8 crore in February 2007 revised in September 2010 at a cost of Rs. 935 crore due to increase in number of court complexes and courts, expansion of scope and additional items and increase in rates of products and services.  Phase I of the Project is planned to be implemented in 12000 courts till 31st March, 2012 and remaining 2249 courts till 31st March, 2014.  The following points were raised by the  Members during discussion:

 (i)                 States should be given a freedom to modify the software applications for the courts.

(ii)               Software for the e-court project should take care of regional languages for subordinate courts .

(iii)              At district and taluka level for providing power backups for hardware and other installations an option for solar energy may also be considered.

(iv)             Training modules for judges and their staff and familiarizing advocates may be provided for within the scheme.

(v)               Open source software should be used instead of propriety software as it requires lot of investment in future.  In this regard, a specific direction should be issued to the implementing agency.

(vi)             The procurement of software and hardware should be decentralized without compromising the quality.

(vii)           Close coordination with the State Governments be done.

(viii)         Technical manpower provided for the purpose should be of good quality.

 Improving justice delivery – steps to reducing pendency

The members felt that:

(i)   Petty cases should be disposed off through morning/evening courts/shift courts and Lok Adalats.

(ii)   Reform measures should be taken up with regard to Appointment of Judges and Judicial Standards and Accountability.

(iii)  A balance should be maintained while reducing the pendency that there should be no compromise on quality of judgments.  A study would be useful to study this correlation.  Department of Justice will take up this study.

Implementation of Law Commission Reports

 Members were assured that Pending recommendations of Law Commission will be considered in the Department of Law and action will be taken expeditiously.

 Rajiv Gandhi Advocate’s Training Scheme

 Members were informed that Rs. 50 lakh have been allocated to National Law University for imparting the training.  The first batch training will take place in the month of June-July, 2011.

 Members present at the meeting were  Members of Parliament Shri Manish Tiwari, Shri shadilal batra, Shri M B Rajesh, Shri P Rajeeve and Shri Gopal Vyas.

Death or life Term- A difficult choice

Posted in CONSTITUTION, DEATH PENALTY, HUMAN RIGHTS by NNLRJ INDIA on December 11, 2010
Opposing death penalty

Image by Joe Athialy via Flickr

There is confusion over the courts’ differing views on death penalty. Mathematical consistency in sentencing is difficult because no two murders are identical. Allowance has also to be made for the judges’ background, beliefs, social philosophy and value system. Within these limitations, the Supreme Court has been able to achieve a reasonable degree of consistency

Beant Singh Bedi in THE TRIBUNE CHANDIGARH

Capital punishment is a highly controversial area of criminal jurisprudence. It has divided the world into two camps: Abolitionists and Retentionists. Both can claim among them eminent thinkers, criminologists, theologists, jurists, judges and law enforcement officials. The chief arguments of the Abolitionists are:

  1. Death penalty is irreversible. It can be — and has been — inflicted upon innocent people. But there is no convincing evidence that death penalty serves any penalogical purpose.
  2. Its deterrent effect remains unproven.
  3. Retribution in the sense of vengeance is outmoded as acceptable end of punishment.
  4. Imposition of death penalty nullifies the purpose of reformation and rehabilitation of the criminal, which is the primary purpose of punishment.
  5. Execution by whatever means is a cruel inhuman and degrading punishment.

The Retentionists argue that a murderer who takes the life of another forfeits his right to his own life. They emphasise the deterrent and retributive aspect of death sentence by arguing that the civilised society must express its revulsion against heinous crimes like murder. True, there have been instances of those persons who, after conviction and execution of murder, were discovered to be innocent. But this, according to the Retentionists, is not a reason for abolition of death penalty but an argument for reform of judicial system and sentencing procedure.

The deterrent value of death penalty has been judicially recognised in a number of cases. In Paras Ram (1973), where a superstitious father had sacrificed his four-year-old innocent son, the Supreme Court while upholding the death sentence inter alia observed that when the crime is of primitive horror and its manifestation is in the form of inhuman and criminal violence, deterrence through court sentence must perforce operate through culprit coming before the court. This view has been reiterated in a number of cases.

The Law Commission of India, it its 35th Report, has vouched for the deterrent effect of capital punishment. However, whether or not death penalty acts as a deterrent may not be statistically proved either way because statistics as to how many potentially murderers were deterred from committing murder but for existence of capital punishment for murder are difficult, if not altogether impossible, to conclude.

The Indian Penal Code (1860) prescribes death as an alternative punishment for the seven offences, murder (Section 302) being one of them. Section 302 says: “Whoever commits murder shall be punished with death or imprisonment for life and also be liable to fine.” The sentencing procedure is prescribed in Section 354 (3) of the Code of Criminal Procedure (1973) which reads “when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgement shall state the reason for the sentence awarded and in the case of sentence of death the special reasons for such sentence.”

The constitutional validity of these two provisions of law was challenged before the Supreme Court in Bachan Singh (1980) to be tested on the anvil of Articles 14, 19 and 21 of the Constitution. Avoiding the expression of opinion as to which of two antithetical views held by the Abolitionists and Retentinists is correct, the Supreme Court repelled the challenge by inter alia observing: It is sufficient to say that the very fact that the persons of reason, learning and wisdom are rationally and deeply divided in their opinion on this issue is a ground among the others for rejecting the petitioner’s arguments that retention of death penalty in the impugned provisions is totally devoid of reason and purpose.

A forceful plea was made before the Supreme Court for laying out standards or norms restricting the area of imposition of death penalty to a narrow category of murders. The plea was rejected by the court holding that first, there is little agreement among penologist and jurists on what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment. Secondly, the criminal cases do not fall into the same behavioral pattern. Thirdly, standardisation of sentencing procedure which leaves little room for judicial discretion to take account of variation in culpability ceases to be judicial. And fourthly, standardisation of sentencing discretion is a policy matter which belongs to the sphere of legislation.

The court ruled that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction of the court in accordance with the sentencing policy writ large in Section 354 (3). It cautioned that judges should never be blood thirsty — hanging of the murderer has never been too good for them. Significantly, in Bachan Singh (1980), though the court had avoided standardising any categories of murder in which the death sentence should be awarded, in Machhi Singh (1983), the court did formulate certain categories of murder in which the death sentence was to be awarded.

The standardisation of the categories of murder in which death sentence must be awarded again came up for consideration in Swamy Shradananda (2008). The court noted with agony the deficiency of the criminal justice system and the lack of consistency in the sentencing process given by the Supreme Court. It noted that Bachan Singh laid down the principle of “rarest of rare cases”. Machhi Singh crystallised the principles into five definite categories of cases of murder and in doing so considerably enlarged the scope for death penalty. However, the court noted with dismay that the reality is that in later decisions neither the “rarest of the rare cases” principle nor Machhi Singh were followed universally or consistently.

The lack of consistency in sentencing process has even been judicially noticed. In Aloke Nath Dutta (2006), Judge Sinha gives some very good instances from a number of Supreme Court decisions in which on similar facts the court took contrary views on giving death penalty to the convict. This leaves the common man confused and bewildered. But mathematical consistency in sentencing is not possible to achieve because no two murders are identical. Allowance has also to be made for the background, beliefs, social philosophy and value system of the presiding judge. Within these limitations, the Supreme Court has been able to achieve a reasonable degree of consistency.

Mention may also be made of the hiatus between the public expectations and the court verdicts. To cite two recent examples, Jessica Lall, a bartender in New Delhi’s Tamarind hotel, was fired point blank and killed on her refusal to serve liquor to the accused. Even in a more gruesome incident, Priyadarshani Matoo, a young LL.B student was stalked by the accused for about two years and ultimately was raped and murdered by him in cold blood. Naturally, these incidents jolted the conscience of civil society and incited public furore. The people demanded death for both the culprits who happened to be the spoiled brats intoxicated by the heady brew of power and pelf of their parents (to borrow from Priyadarshani Matoo, 2010).

In the Jessica Lall case, the accused was acquitted by the trial court while the Delhi High Court reversed acquittal and convicted the accused for murder and sentenced him to life imprisonment, which was upheld by the Supreme Court. In the Matoo case, a somewhat similar result followed. The trial court acquitted the accused. This judgement was reversed by the Delhi High Court, which convicted him for murder and rape and sentenced him to death. On appeal, the Supreme Court, while maintaining conviction, commuted death sentence to life imprisonment.

In the perception of civil society, these murders were very gruesome which tended to endanger the life and safety of law abiding citizens and so deserved death. These judgments, no doubt, disappointed the public expectations, but on the anvil of the rule of “rarest of rare cases” laid down in Bachan Singh and followed in almost all cases since then, the Supreme Court was justified in awarding life sentence as it did. Perhaps court perception sometimes does not match the expectations of civil society.

A study of case law since Bachan Singh (1980) shows that the court is perceptibly veering away from capital punishment to life imprisonment. In this context, a new development may be noted. It was observed in Jagmohan Singh (1973) that life imprisonment in effect meant only 12 years in prison. However, in Swamy Shradhananda (2008), it was noted by the court by referring to a catena of cases starting from Gopal Vinayak Godse (1961) to C.A. Pious (2007) that the punishment for life imprisonment implies a sentence of imprisonment of the convict for the rest of his life.

Following this line of authority, the Supreme Court in Swamy Shradananda case (2008) where the convict (a tantrik) had committed gruesome murder of his wife, taking into consideration some mitigating circumstances, commuted death sentence of the convict and substituted it with imprisonment for life and directed that he shall not be released from prison till the rest of his life. In the United States, this type of sentence is known as life imprisonment without parole (LWOP). Some penologists argue that LWOP is a far more severe punishment than death.

Interestingly, 311 prisoners serving life sentence in Italy petitioned their government in 2007 for the right to be executed. They cited LWOP as a living death where they die a little every day. It is easy to condemn capital punishment as barbaric, but is spending the rest of one’s life in prison so much less cruel to the prisoner or is it merely a way of salving society’s conscience and removing the unpleasantness for the staff and officials? Thus, the debate between the Abolitionists and Retentionists the world over continues.

The writer, a former Additional and Sessions Judge, Punjab, is currently Member, Governing Council, Indian Law Institute, New Delhi

Expedite mercy petitions

The Union Government’s process of taking action on the petitions of those on death row for Presidential clemency has been very slow. The President’s power of pardon under Article 72 of the Constitution is not individualistic but institutional. The President can take a decision on a mercy petition only on the advice of the Union Home Ministry on behalf of the Union Council of Ministers.

A Supreme Court Bench consisting of Justice Harjit Singh Bedi and Justice J.M. Panchal has ruled that if the executive authorities, as a “rigorous self-imposed rule”, are not inclined to take action on a mercy petition within three months from the date of its submission to the President, the condemned convict would be free to apply for commutation of his death sentence to life imprisonment. Otherwise, it will be violative of his right to life and personal liberty guaranteed under Article 21 of the Constitution.

In February 2010, there was some forward movement when Union Home Minister P. Chidambaram met President Pratibha Patil. It was decided that beginning with the oldest mercy petition, the Union Home Ministry would send a formal letter to Rashtrapati Bhavan asking for recall of the file. Once the mercy petition was re-examined in the Home Ministry, the case would be sent back to the Rashtrapati Bhavan either with a request for the death penalty to be commuted to life imprisonment or with a reiteration that the case was fit for death penalty.

Though Home Ministry officials say that the file movement has commenced, it is very slow and needs a gentle push. Apparently, the President is not inclined to reject mercy petitions in a hurry notwithstanding the Union Home Ministry’s pro-active role on the issue. The debate about the continuance of capital punishment continues. Research shows that the relationship between deterrence and severity of punishment is complicated. It is not obvious how deterrence relates to severity and certainty. Criminal policy must be evidence-led rather than based on intuition which is often found to be wrong. In the absence of any significant empirical attention to this question by Indian criminologists, one cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right through the imposition of death penalty.

Those who escaped gallows

  1. Jagtar Singh Hawara, assassin of former Punjab Chief Minister Beant Singh (Punjab and Haryana High Court, Oct 13, 2010). The court upheld the death penalty of Balwant Singh, another co-accused, who confessed his hand in the crime.
  2. Cab driver Shiv Kumar for rape and murder of BPO employee Pratibha Srikantamurthy (Bangalore Fast Track Court, Oct 8, 2010).
  3. Santosh Kumar Singh for rape and murder of Priyadarshini Mattoo in New Delhi (Supreme Court, Oct 6, 2010)
  4. Six convicts of the 2006 Dalit family murder case. They get life imprisonment for 25 years (Nagpur Bench of Bombay High Court, July 14, 2010).
  5. Contract killer Mani Gopal for murder of the witness, a eunuch, inside the Tis Hazari court premises in 2003 (Delhi High Court, Aug 31, 2009)

Source: http://www.tribuneindia.com/2010/20101211/edit.htm#6

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