Review of Rape Law

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

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

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?

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?

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

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.”