EVOLUTION OF LGBTQ+ RIGHTS IN INDIA: BATTLE OF LGBT+ COMMUNITY AGAINST SECTION 377 OF IPC, 1860

Reading time : 10 minutes

Introduction

Section 377 of Indian Penal Code, 1860 was brought in India by the Britishers. This Section criminalised all sexual acts “against the order of nature”. This Section was not only directed against the homosexuals but also covered all other forms of non-traditional sexual intercourse even in the course of heterosexual union. Hence, the LGBT+ community was not able to express their sexual orientation as it was considered a criminal offence. Therefore, the battle of the LGBT+ community began for the decriminalisation of Section 377. This article talks about several judgements which relate to the validity of section 377 and how section 377 was finally decriminalised in the Navtej Johar’s judgement.

• Pre-Naz Foundation case situation i.e., before 2009

   Section 377 of Indian Penal Code, 1860 was still in force during this time.

In the case of Jayalakshmi v. State of Tamil Nadu[1], a transgender, charged for theft was arrested by the police. He was sexually abused in the police station and finally, he put himself on fire in the police station.

Theapathy towards LGBTQ+ was also present when health services are to be provided to prisoners. In Tihar jail[2], the medical team did the inspection and found out that sodomy was being practiced in the prison premises. So, they suggested the inspector general to provide condoms to the inmates to prevent STIs. Despite this, inspector general refused this idea as this might became the ground where homosexuality would be practiced which was punishable.There have been numerous instances like this wherein the name of implementing Section 377, several rights of LGBTQ+ had been violated.

• Naz foundation v. Govt. of NCT[3](2009)

The Naz Foundation is a non-governmental organisation. It works on creating awareness about prevention of HIV/AIDS and sexual education and health since 1994. In 2001, the organisation filed a writ petition in the Delhi High Court and challenged the constitutional validity of Section 377 of Indian Penal Code,1860, claiming this section violated Article 14, 15, 19 and 21 of the Indian Constitution.

The court held that Section 377 to be unconstitutional which violates Article 14, 15 and 21 of the Indian Constitution. The Court held that Section 377 violates Article 14 because it creates an unreasonable classification and targets homosexuals as a class. The Court held that the term “sex” is inclusive of the word “sexual orientation”, and therefore discrimination on the ground of sexual orientation is violative of Article 15. The Court also noted that the right to health is one of the components of the right to life under Article 21, and concluded that Section 377 obstructs public health because it further the problems of the spread of HIV disease.

• Suresh Kumar Koushal v. Naz Foundation & Ors.[4]

One part-time astrologer by the name of Suresh Kumar Koushal sought the permission of the Supreme Court to challenge the verdict of Delhi High Court in Naz[5], and was permitted to do so. Several religious groups then also filed to challenge the decision in Naz’s case.

On 11th December 2013, the Supreme Court reversed the judgment of the Delhi High Court and homosexuality would be an offence under Section 377.

The court in this judgment expressed that there’s a presumption of constitutionality of Section 377 of the Penal Code, 1860 (‘IPC’) since it has not been revised or annulled by Parliament in spite of the fact that it had a chance to do so while amending the IPC provisions related to sexual assault.[6]

The court reasoned that in order to conclude that LGBT people in India were being discriminated against, there was insufficient evidence before the Court. The Court makes a distinction between sexual acts and identities, as though the two were not in any way related. Turning a blind eye to the materials placed before the court, the judges noted that the LGBT community is only a “minuscule fraction of the population of the country” suggesting that they did not need protection from the law.

Also read: Abortion Law Reform in India – An Analysis of the Medical Termination of Pregnancy (Amendment) Bill, 2020

• National Legal Services Authority v. Union of India & Ors.[7](2014)

The National Legal Services Authority (NALSA) is a statutory body which provides legal aid and services to oppressed, underprivileged sections of our society. NALSA realised that the transgender community have been facing discrimination at the hands of society and have been denied fundamental rights due to the fact that they were not considered male or female. Society shunned them and treats them as an outcast. These individuals also turn to begging or prostitution, rendering them more vulnerable to STDs and crimes such as human trafficking, since they are continually rejected and do not have access to services. Hence, NALSA filed the case before the Supreme Court to address this issue.

The ‘third gender’ status for hijras or transgender was established by the Supreme Court in its landmark judgment. As before, transgender people were expected to identify themselves as either male or female, but they were able to proudly accept themselves as transgender after the verdict. But aside from this, what made this decision so special was that it laid down the foundation to guarantee a whole range of fundamental human rights for the transgender community, which can be inferred as follows:

1. The court held that the refusal to recognize their identity was contrary to Articles 14,15,16 and 21 of the Constitution of India. In addition, the Supreme Court ordered the Government of India to treat “Third Gender” members as an economically and socially backward class. It was also stipulated that, in the light of Articles 15(2) and 16(4) of the Indian Constitution, the government should establish suitable policies for the transgender community to ensure equal opportunities in education and jobs.
2. The court accepted the distinction between sex and the biological elements of sex. In order to include genital, secondary sexual features, chromosomes, etc., the court specified biological characteristics, but defined gender attributes as one’s self-image, i.e., the deep emotional or psychological sense of sexual identity and character of a person that is not limited to the binary sense of male and female, but may lie on a broad spectrum.

After this judgement, there was awareness and recognition of transgender rights for example, the state of Kerala formed certain policies for Transgender in 2015. Many other states like Tamil Nadu and Maharashtra established Transgender Welfare Board in their respective states.

• K.S. Puttaswamy & Anr. v. Union of India & Ors.[8](2017)

This judgement is also known as ‘Aadhar judgement’ or ‘Privacy Judgement’ as the right to privacy was held as a fundamental right which is a facet of Article 21 of the Indian Constitution. In this case, the opinion of Justice Chandrachud contained a section entitled “discordant notes.” The first was about the case of Jabalpur v S.S., Additional District Magistrate[9], Shukla which upheld the denial of fundamental rights, while the second part applied to the case of Koushal[10] denying the rhetoric of the LGBTQ+ community’s “so-called” rights. Koushal judgement is also termed as bad law in the privacy judgement.

The judgement states that the state does not have any control over the intimacy between consenting adults of the same-sex. Sodomy laws breach equality by targeting a section of society as they have alternate sexualities and don’t follow the traditional gender norms. Such a law continues to perpetuate biases and gives the state the power to further create a stigma around the LGBTQ+ community. This led to the chilling effect in the exercise of their freedom. Not only their sexual orientation is inherent to the identity of the LGBT+ community but also forms a component of liberty, dignity, privacy and individual autonomy and equality.   

• Navtej Singh Johar & Others v. Union of India[11](2018)

1. In its decision on 6 September 2018, the Supreme Court of India decriminalized same-sex relations. CJI Dipak Misra quoted the German thinker, Johann Wolfgang von Goethe, “I am what I am. therefore take me as I am” that tried to affirm the identity of the LGBTQ+ community.

The Court found Section 377 as arbitrary and violative because it distinguished heterosexual and homosexual individuals solely on the basis of their sexual orientation. Hence, it violates Article 14[12] of the Constitution (right to equality). The Court further stated that from Article 21 flows the right to dignity, privacy, and sexual autonomy and Section 377 violates these rights guaranteed to a homosexual person. Furthermore, the Court held that Section 377 violates Article 19(1)(a) of the Indian Constitution (freedom of speech and expression).  The judgement directed the Union of India to give the judgement some publicity using television, radio, print and online media from time to time, and initiate programmes to reduce stigma around the LGBTQ+ community. The Yogyakarta Principles which talk about the rights of sexual minorities were acknowledged by the court in this case.

• While the Navtej[13] case is a major victory for the LGBT+ community in India, the fight[14] for civic, social, and political equality is far from over[15]. People belonging to gender and sexual minorities continue to face discrimination[16], abuse, and violence in all aspects of life which is further exacerbated by other intersecting identities, including caste, class, and religion[17].

• The Indian government has managed to resist discussing its LGBT+ population’s problems and, despite the 2018 verdict, has remained apathetic to their realities. This is evident from its failure to enforce the guidelines of the Supreme Court to sensitize the public and government officials to eradicate social stigma and discrimination against LGBT+ individuals.

Also read: Corporate Governance in Multinational Corporations

• Transgender Persons (Protection of Rights) Act[18]

The Government of India introduced and passed the 2019 Transgender Rights Bill in the Lok Sabha in August 2019. The Bill was also passed by the Rajya Sabha and became law by a December 2019 Presidential Notification.

This Act has been criticized by many transgender representatives, activists and legal scholars.

There were several reasons for the widespread criticism, some were: –

1. An individual still needs permission from the government of the state to prove their chosen gender which is against the idea of the right to self-determine the identity and against the NALSA judgement.
2. The Act reduces the punishment for sexual assault on transgender persons (6 months to 2 years) compared to cis-gendered women.
3. The Act remains silent on reservation for transgender persons even though they are considered as socially and backward classes from the NALSA judgement.

• Conclusion

Section 377’s impact has gone well beyond criminalizing. The presence of this provision has increased myths of sexual orientation. It has given the state power to suppress the identity of the individuals. The threat of persecution has led to same-sex marriages being closed down. Hence, the judgement of Navtej[19] brought a ray of hope for LGBT+ community by finally decriminalising Section 377 of IPC, 1860 and freely express their sexual orientation as it is their fundamental right which emanates from the Indian Constitution.

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[1] (2007) 4 MLJ 849.

[2] Siddharth Narrain, “The Queer Case of Section 377”, Sarai Reader, available at http://archive.sarai.net/files/original/67296a7644a5664a9733aabf58b238b1.pdf (last visited on Feb. 14, 2021).         

[3] (2009) 111 DRJ 1.

[4] (2014) 3 SCC 220.

[5] (2009) 111 DRJ 1.

[6] Siddharth Narrain, “Lost in Appeal: The Downward Spiral from Naz to Koushal”,(2013) 6 NUJS L Rev 575.

[7] (2014) 5 SCC 438.

[8] (2017) 10 SCC 1.

[9] (1976) 2 SCC 521.

[10](2014) 3 SCC 220.

[11] (2018) 10 SCC 1.

[12] INDIA CONST. art. 14.

[13] (2018) 10 SCC 1.

[14]“Living with Dignity: Sexual Orientation and Gender Identity Based Human Rights Violations in Housing, Work, and Public Spaces in India”, International Commission of Jurists, June, 2019, available at https://www.icj.org/wp-content/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report-2019-ENG.pdf (last visited on Feb. 16, 2021).         

[15] Chakrabarti, A. “Queer freedom? A year after the Section 377 verdict, LGBT community still doesn’t have these rights”, News18, Sept 6, 2019, available at https://www.news18.com/news/buzz/queer-freedom-a-year-after-Section-377-verdict-lgbt-community-still-dont-have-these-rights-2299373.html (last visited on Feb. 16, 2021).         

[16] Banerji, A., “One year after landmark ruling for LGBT+ rights in India, challenges persist”, Reuters,Sept 6, 2019, available at https://www.reuters.com/article/us-india-lgbt/one-year-after-landmark-ruling-for-lgbt-rights-in-india-challenges-persist-idUSKCN1VR256 (last visited on Feb. 17, 2021).         

[17] Ahmed, R, “First person: As a persecuted gay Muslim from Bangladesh seeking refuge, I wasn’t welcome in India”, Scroll.in, Dec 25, 2019, available at https://scroll.in/article/947811/first-person-as-a-persecuted-muslim-bangladeshi-seeking-refuge-i-wasn-t-welcome-in-india (last visited on Feb. 17, 2021).         

[18] Transgender Persons (Protection of Rights) Act, 2019 (No.40 of 2019).

[19] (2018) 10 SCC 1.

Author: Aadi Kushwaha

Editor: Kanishka Vaish, Senior Editor, LexLife India.

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Law of Adultery: Recent Development

Reading time : 10 minutes

• INTRODUCTION / CONCEPT OF ADULTERY

Adultery is described as a married person’s consensual sexual activity with a partner other than his or her spouse. In various states and laws, the legal definition of adultery varies. Adultery is a serious crime in India and hence there are provisions relating to the Indian Penal Code of Adultery, 1860. Adultery is described by Section 497 as:

“Anyone who, without the permission or connivance of that man, has sexual intercourse with a person who is and whom he knows, or who has cause to assume to be the wife of another man, such sexual intercourse does not contribute to the crime of rape, is guilty of the offence of adultery and shall be punishable with imprisonment of either description for a term of up to five years or with a fine or witness”.

It is necessary to create an institution which, from the very beginning, does not seek to maintain the sanctity of marriage, but seeks to protect the institution’s structure.

It was asserted in the case of “V. Revathi v. Union of India” that the man was a seducer, not a feminist. It was essentially claimed that Section 497 would not include the wife with the right to sue the husband who committed adultery with another wife. In its attempt to imprison only the ‘outsiders’ of marriage, the above-mentioned statute hits and the group often claims that it punishes the stranger who enters into a marital home and threatens the sacredness of marriage.

In India, IPC Section 497 has a history of 150 years of colonial period and, since its introduction, has been spinning into contentious and dubious controversies on many accounts, such as its approach to gender inequality, challenging the equity clause, representing cultural conflicts, and strong objections have been raised either for its preservation, modification, or full alteration and elimination from penal statues.

• HISTORY

In ancient India, events relating to husbands having secret relationships with other women and wives adultery after their husband were not uncommon. Adultery was never favored by Hinduism; it was founded as a mortal sin. Marriage is a pious and spiritual relationship, according to Hindus, and the institution of marriage should be maintained all the time.

Hindu law, for both religious and social purposes, is very stringent against adultery. The ancient Hindu law also separated married women’s partnerships from those who are single, and the former attracted harsher punishment. There were also numerous acts concerning different castes of women in the treatment of adultery. The Ancient Hindu Community was not free from the Adultery Hurdle. There were several tales of Hindu myths in which God himself indulged in adulterous thoughts and acts. For example, because of the mere accusation of adultery, Lord Rama banished his wife into the forest. Chapters on the crime of adultery is set down in the manuscript. The book discusses why cheating exists, how to secure it, and the ruthless retribution for those in such relationships who are caught. This sin was punished by death centuries ago, either by public stoning, hanging, or even worse.

Lord Macaulay did not approve adultery/infidelity as a clause of IPC when the Indian Penal Code was drafted, but in the second report the presidents disagreed with Macaulian’s views of adultery and put strong emphasis on his marks and concluded that committing adultery was a heinous crime and that the perpetrator must be responsible for punishment. Section 497 was then founded in the Indian Penal Code.

Section 497 of the Indian Penal Code was questioned shortly after the Constitution of India, on the basis that it generally goes against the spirit of equality inculcated in the Constitution. One of the most contentious cases was in 1951, when Mr Yusuf AbdulAziz, who was guilty of adultery, argued before the Bombay High Court that, in violation of Articles 14 and 15 of the Constitution, Section 497 of the IPC is unconstitutional because it acts arbitrarily between a man and a woman by making the former entirely responsible for adultery. Therefore, he claimed, there was sexism against women and against men purely on the grounds of sex.

Also read:Explained: Privacy Policy of WhatsApp

• SUPREME COURT’S TAKE ON ADULTERY

The Supreme Court declined to revisit its 2018 decision in which adultery was decriminalized.

A five-judge Review Bench led by India’s Chief Justice Sharad A. Bobde reinstated a Constitution Bench that had stripped adultery out of the penal statute book in September 2018.

“We thoroughly went through the petitions for review and forwarded the relevant documents. We do not find any ground, anyway, for the same entertainment. Accordingly, the appeal requests are dismissed,” the review court said in a short order recently.

A Constitution Bench headed by then Chief Justice Dipak Misra, who ruled that Section 497 (adultery) of the Indian Penal Code could not “command” married couples to keep true to each other for fear of penal punishment, was the original judgement.

If one cheats, two people may part, but Justice Misra had observed in his separate opinion that adding criminality to infidelity is going too far.

The court had argued that little evidence existed to support arguments that the elimination of adultery as a felony would lead to “chaos in sexual morality” or a rise in divorce.

Section 497 considers a married lady, held by the Bench, as a commodity for her husband.

Adultery is not a felony if the henpecked husband connives or consents to his wife’s extra-marital affair. “Article 497 considers a married woman as the “chattel” of her husband. The provision is a result of the dominant social superiority of men 150 years ago.

The husband is not the owner… Obituaries of these past perceptions should be written,” Misra, then chief justice, had observed.

The Bench also held that the CrPC’s Section 198(2), which allowed the cuckolded husband the exclusive right to sue the lover of his wife, was simply unconstitutional.

However, adultery can be a cause for civil remedies such as marital separation, the 2018 verdict had said.

• HOW LAW OF ADULTERY HAS CHANGED?

On 27 September 2018, the Supreme Court’s five-judge Constitution bench unanimously ruled to revoke Section 497 and that is no longer a crime in India.

Chief Justice Dipak Misra said when reading the decision, “it (adultery) cannot be a criminal offence,” but it can be a reason for civil problems such as divorce.

Joseph Shine, a non-resident of Keralite, filed public interest lawsuits pursuant to Article 32 of the Constitution in October 2017. The petition questioned the constitutionality of the crime of adultery read in Section 198(2) of the CrPC pursuant to Section 497 of the IPC. Furthermore, when her husband engaged in sexual relations with an unmarried woman, a married woman could not file a lawsuit under Section 497 IPC. This was in view of CrPC Section 198(2), which specified how a criminal would pursue charges under IPC Sections 497 and 498 for offences committed.

Intervenor Vimochana was represented by Advocate Jayna Kothari, CLPR’s Executive Director. In citing the universal right to privacy, as acknowledged by the Supreme Court in the case of Puttaswamy, she attacked the clause that categorized adultery as an offence. She argued that a facet of privacy which is protected under the Constitution is the right of intimate association.

Section 497 was illegal as the very reason for criminalizing adultery was the hypothesis that a wife is treated as the husband’s property and is forbidden to have affairs beyond marriage. However, in the case of the husband, the same limitations were not applicable. Section 497 breaches woman’s right to privacy and equality by discriminating and perpetrating gender toward married women.

On 27.09.2018, Section 497 of the Indian Penal Code was unanimously struck by the 5 Judge Bench of the Supreme Court as breaching Articles 14. In the Constitution, 15 & 21.

Also read: LAW RELATING TO RAPE AND SEXUAL CRIMES IN INDIA

• RECENT DEVELOPMENTS

The Court refers the case to CJI to issue necessary directions to shape the Bench of Five Judges

A petition filed by the Ministry of Defense (MoD) seeking to exclude armed forces personnel from the scope of a 2018 Constitution Bench judgement that decriminalized adultery was accepted by the Supreme Court on Wednesday.

Incidentally, one of the key arguments provided by the government for obtaining exemption is that “there will always be a concern in the minds of military personnel who operate far from their families under difficult circumstances about the family engaging in untoward activity.”

The court referred the case to India’s Chief Justice to issue appropriate orders to form a five-judge bench to clarify the effect on the armed forces of the 2018 judgement. In the petition, the government said that Army, Navy and Air Force staff were a’ distinct class.’ Unique laws, the Army Act, the Navy Act, and the Air Force Act were regulated by them.

Adultery contributed to an unbecoming conduct and a violation of discipline under certain three Acts. These special laws placed limitations on the human rights of workers working in a special situation involving the utmost discipline. The three laws were covered by Article 33 of the Constitution, which allowed the government to change the basic rights of the members of the armed forces. “Instability” was created by the 2018 verdict. It allowed the decision to cover a worker charged with pursuing an adulterous or illegal relationship.

“In cases of adultery, and where there is an allegation against the defendant, a claim may be made that we are circumventing the statute and what could not be achieved expressly by these Actions is done directly,” said the Ministry.

DISTINCT CLASS

It will break down the professionalism required for the execution of service, which is vital for national security. Regardless of the 2018 ruling, the rules of the Acts should be permitted to continue to control the workers as a “distinct class”.

It claimed that at the time, the court would not have been aware of the various situations in which the armed forces worked.

“It has to be remembered that the armed forces function in a world entirely different and distinct from individuals. Honor is a sine qua non of the department. Courage and commitment to service is part of the unwritten contract regulating the veterans of the armed forces, even at the cost of one’s life,” said the Center.

In addition, the government found out that, unlike Section 497, although they were convicted of a crime, the rules of the three Acts did not distinguish between a male and a woman. “De hors 497, if she ventures into an adulterous affair, the Army would pursue equally against such a woman subjected to the Act,” it said.

CIVIL REMEDY

“The government also pointed out that, despite striking down adultery as a crime, the court had held that it was “undoubtedly a religious wrong for the family and the partner. Furthermore, the decision acknowledged that there was a legal solution as adultery was a basis for divorce.

The 2018 judgement concluded that the statute cannot “command” married couples to stay faithful to each other by Section 497 IPC for fear of criminal punishment.

“If one cheats, two people may part, but attaching criminality to infidelity is going too far,” the judgement said in 2018.

Section 497 viewed a married woman as her husband’s product. If the cuckolded husband connived or consented to his wife’s extra-marital affair, cheating was not a felony. A married woman was considered in section 497 as the “chattel” of her husband. The clause was a reflection, the court had noted, of the social superiority of men prevailing 150 years earlier.

The owner is not the husband… It is appropriate to print obituaries of these past impressions,” it said

CONCLUSION

Polygamy has been illegal over the years, while monogamy has become widespread. Today, personal laws are fair, working, efficient and reliable. In marriage laws, the definition of adultery is much narrower in scope than the definition of adultery as a felony. It’s almost difficult to commit polygamy or have extramarital affairs without triggering legal litigation. Women in society have started to develop their own identities and are no longer regarded simply as the chattel of their husbands. In the criminal code, there are no grounds for maintaining adultery as a crime. Our personal rules are adequate for adultery as a legal wrong to be taken care of.

Author: Avnip Sharma

Editor: Kanishka Vaish, Editor, LexLife India.

Also read: EXPLAINED: DOCTRINE OF ELECTION UNDER PROPERTY LAW

Criminal Law: Offences against the State

Reading time : 10 minutes

Introduction

The Indian Penal Code, 1860 deals with offences according to Chapter VI against the Administration (Section 121 to Section 130). These codes are meant to guarantee patient security of the state as a whole. In the case of crimes against the State, such as life imprisonment or the death penalty, the survival of the State may be shielded by the awarding of substantial penalties. Offenses against both the state and the government in order to disrupt public peace and tranquility, public order and national integration.

Waging War

Waging war means an effort to try to accomplish any objective of public nature by some force and violence. Such a war happens when many individuals rise and gather against the State in order to use violence and intimidation to procure an object of public nature. In addition to establishing an offence against State, the objective and inclination are taken into account and not the murder or even the force.

The phrase ‘waging war’ should be comprehended in the broad sense and can only imply waging war in the manner usual in war. Overt activities such as the selection of persons, guns and ammunition are not included. In the international context, this form of war often does not involve an inter-country war involving military operations between two or more countries.

In accordance with Section 121, it has been made clear that ‘war’ is not conventional warfare between countries, but it is a form of war to join or organize an uprising against the Government of India. Waging war is a form of extreme violence to achieve some public objective.

Waging War against Government of India

Section 121 of Section 123 of the Code concerns the conduct of wars against the Government of India. Here, the phrase ‘Government of India’ is used in a much broader sense, that is, to conclude the Indian State which originates the authority and responsibility of authority from the will and consent of its people. In other words, this term means that while the State receives the power of authority from Foreign Public Laws, the authority is, however, vested and exercised by the representative government by the citizens of the territory.

The following are deemed to be necessary offences under Section 121, as they need to be proven in addition to establishing an offence for war against the Government of India:

Also read: Criminal law: Criminal Breach and Criminal Misappropriation

The Accused must have;

• Waged war; or
• Attempted to wage war; or
• Abetted the waging of war.

Such a war must be against the state;

The sentence requires either life imprisonment or the death penalty under this clause. It is also possible to levy a fine in such situations.

In a wider context, the term ‘whoever’ is used and is not only limited to those who owe allegiance to the existing government. Even the Supreme Court of India cannot justify whether or not foreign nationals entering the territory of India should be held guilty in order to impede the functioning of the government and to destabilize society.

For example, the first and primary offence committed by the appellant and other conspirators in the case of the Mumbai Terror Attack (Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra) was the offence of waging war against the Government of India. The attack, targeted at Indians and India, was by foreign nationals. This attack was aimed at accelerating communal tensions, affecting the country’s financial situation and, most importantly, demanding that India surrender to Kashmir. Accordingly, the appellant was rightly found guilty, under Sections 121, 121A and 122 of the Code, of declaring war against the Government of India.

Conspiracy to Wage War

In 1870, Section 121A was introduced to IPC. It notes that in order to establish a conspiracy, it is not mandatory that any act or criminal omission should take place explicitly.

Two types of conspiracies are discussed in this section:

• Conspiring, inside or without India, to commit an offence punishable by Section 121 of the Code.
• Conspiring to overawe, that is to say, bullying the government by means of criminal force or a simple display of criminal force.

The penalty under this provision includes, along with a fine, imprisonment for ten years or life imprisonment. Such punishment may be provided both by the central government and the government of the state.

• Preparation to Wage War

The plans for war are governed by Section 122 of the IPC. There is a distinction between the attempt to commit the offence and the planning. The core elements of this section are:

• Compendium of men, weapons and ammunition.
• There must be a purpose to wage war or make preparations to wage war for such compendium.
• The accused must partake in such compendium.
• The war should be perpetrated against the Government of India.

The penalty under this provision is either life imprisonment or, along with a fine, imprisonment for ten years.

For example, if printing material is found in the accused’s room along with other items, then they are neither considered objectionable nor infuriating. Therefore, under this clause, the accused cannot be prosecuted.

• Concealment to Facilitate Design to Wage War

The concealment of design to wage war is dealt with in section 123 of the IPC. The essential principles of this section are:

• There has to be a presence of a layout which is prepared to wage war against the Government of India.
• The deception should be developed with the purpose of promoting the war against the Government of India.
• The person should be identifying about the concealment of the design.

Under this clause, the penalty is imprisonment of up to 10 years along with a fine.

In the Parliament attack case, for example, the defendant had plot data along with a terrorism scheme. Accordingly, his unlawful omission made him liable under IPC Section 123.

• Assault on President or Governor of State

Whoever, in order to induce or compel the President of India or the Governor of any State to exercise or refrain from exercising, in any manner whatsoever, any of the lawful powers of that President or Governor, assaults or wrongfully restrains, or attempts, by criminal force or the demonstration of criminal force, to unlawfully restrict or overrule, or attempts to override, such President or Governor, shall be punishable with imprisonment of either depiction for an imprisonment which may extend to seven years, and shall be liable to penalty.

This offense is Cognizable and Non-Bailable and it may shall be tried by Court of Session.

Sedition

Sedition is dealt with here in section 124A. Under this Section, any individual who by:

• Words, spoken or written; or
• Signs; or
• Representations visible; or
• Otherwise;

It is punishable by taking or even threatening to bring hate or excite disaffection to the Government of India (including the feeling of antagonism and treachery) with:

• Life imprisonment in certain cases together with a fine; or
• Imprisonment in certain cases for up to three years along with a fine; or
• Fine.

Essential Ingredients of Section 124A

• Words, Sign, Visible Representation or Otherwise

Sedition may be achieved by words, written or spoken, by signs, or by visual representation in different ways. Music, publications, presentations (films and puppets), sculptures, photos, cartoons, drawings, and all other techniques are seditious deeds.

Under sedition, whether or not the seditious publications are being used by the real authors is immaterial. In such a circumstance, the editor, publisher or printer is equally liable as the author. Thus, whoever wrote or used it is guilty of sedition for the intent of thrilling disaffection. In the event of the accused pleading that he did not approve the article, the accused is responsible for the burden of evidence. In addition, if the accused is unaware of the substance of the article or paper written, he is not guilty under this clause because the intention is absent.

Sedition does not simply consist of words spoken or written, but may also be of other kinds, such as signs and visual representation. For example, a woodcut or engraving of any sort may illustrate this.

Also read: Principle of Natural Justice: Reasoned Decision

• Conveys or Endeavors to Carry into Abhorrence or Contempt

The phrase ‘brings or threatens to carry hate or contempt’ tries to disagree less with or interfere less with the freedom of speech.

Writers in the national press, for example, are not permitted to write or indulge in unethical or dishonest motives. A writer is not considered seditious when he publishes an article with a cool, unsentimental and dispassionate outlook and addresses his small emotions that may or may not cause a man to think. If, however, the article goes beyond and has unjust, immoral and deceptive motives, then it is known that such an article is seditious.

• Excite Disaffection

Disloyalty and all other feelings of enmity are part of the word’ disaffection.’ An act of disaffection must be aroused among individuals in order to amount to sedition. In other words, among the citizens of the state, the feeling of disaffection must be stirred up.

The disaffection can be aroused in several ways as per this section, such as:

• Poem,
• Aphorism,
• Discussion, historical or metaphysical,
• Drama, etc. 

In order to settle for sedition, publication is required. The publication, including articles, may be of any form and manner.

• Undertaking depredation with the Government of India on territories of Force at ease – Section 126

Whoever commits depredation in the territories of any Power in alliance or in peace with the Government of India, or makes arrangements for depredation in the territories of any Power, shall be punished by imprisonment of any description for a period of up to seven years, and shall also be liable for the fine and forfeiture of any property used or intended for use in the depredation or for acquisition of such property.

Punishment for the offense – 7 Years + Fine + Land forfeiture

Cognizable Knowable Not-Bailable, tried by The Session Court

• Receipt of war or predatory property referred to in sections 125 and 126

Whoever possesses any property which is known to have been taken into account in the commission of any of the offences referred to in sections 125 and 126 shall be punished by imprisonment of either description for a period of up to seven years, and shall be liable for the fine and forfeiture of the assets so obtained.

This offense is cognizable, non-bailable and shall be tried by Court of Session.

Also read: EXPLAINED: DOCTRINE OF ELECTION UNDER PROPERTY LAW

• Nasir khan v. State of Delhi, Appeal (crl.) 734 of 2003

“The Supreme Court observed that it is a fundamental right of every citizen to have its own political theories and concepts and to work through their constitution.” Arun Jaitley narrowly avoided conviction for sedition in 2015. In a Facebook post, he had denounced the Supreme Court for shooting down the government’s proposed National Judicial Appointments Commission.

In response, under Section 124A, a judicial magistrate had ordered that he be booked. The High Court of Allahabad came to his rescue, stating that they should have a ‘pernicious propensity’ to cause public disorder for any words to become seditious. The sedition law continues to be invoked, despite such stringent interpretations of the section, in circumstances where even the prerequisites of such a charge are not met.

Conclusion

In governing and maintaining public order, crimes against the state play a key role. The citizens of the state have a right to criticize the government’s policies, but they should not abuse their freedom to hurt the people or the government around them. It is a punishable offence to wage war against India and against authority. In the case of attack against them, the law also covers high officials, such as the President, the Governor of every State, etc. Most notably, one of the most serious cognizable crimes against the State is deemed to be sedition. It can therefore be assumed that, for the betterment of the State, the State must limit the liberty of the citizens of the country.

Author: Avnip Sharma

Editor: Kanishka Vaish, Editor, LexLife India.

Hoardings by UP police: Constitutional angle

Reading time: 6-8 minutes.

Recently, the Allahabad High Court directed the Yogi Adityanath-led government of Uttar Pradesh to remove the hoardings containing names, photographs and residential addresses of the fifty-seven anti-CAA protestors and severely condemned the act by declaring it violative of right to privacy under Article 21 of the Indian Constitution.

The right to privacy refers to the right of an individual to be protected from public scrutiny and review. Article 21 of the Indian Constitution recognizes the right to privacy as a fundamental right. This was validated by the Supreme Court of India in the landmark case of Justice K.S. Puttaswamy vs. Union of India in 2017. 

Significance of this development

The court took suo moto cognizance of the incident under Article 226 of the Indian Constitution. This means that the Supreme Court (under Article 32) and the High Courts (under Article 226) can take an action when they are detailed about the violation of the law. This highly reflects judicial activism on the part of judges, to file a Public interest Litigation (PIL) and control the situation pragmatically and systematically.

The action taken by the judges was significant as the act by the Uttar Pradesh Police was ultra vires (beyond its powers) as it tried to take law in its own hands and punish the accused to create a deterrence effect, though they were not authorized for the same.

The right gained its validation precisely in 2017 and so, many precedents are required to be set as examples for its proper application. So, the PIL by the judges acted as a milestone in the development of the right to privacy and added to its worth. This step made it a stronger right and more authoritative as well.

Moreover, the right to life and personal liberty under Article 21 is the most basic fundamental right which is enforceable even during the times of emergency. Thus, it must gain recognition.

Background: The hoardings by UP police

On March 5, 2020, the police had placed several hoardings in the city of Lucknow pinpointing those accused of violence during the protests against the Citizenship (Amendment) Act. The hoardings contained the names, photographs and residential addresses of the accused. Additionally, the accused were also asked to compensate for the damages to public and private property within a prescribed time or have their properties confiscated by the district administration.

However, a division bench comprising Chief Justice Govind Mathur and Justice Ramesh Sinha took suo moto cognizance and held a special meeting. The Allahabad High Court then ordered the District Magistrate and Commissioner of Police of Lucknow to remove the hoardings as the act was highly undemocratic and violated Article 21 of Constitution and “amounts to unwarranted interference in the privacy of people”.

It further stated that “privacy was ‘intrinsic component’ of Part III of Constitution of India that lays down our fundamental rights relating to equality, freedom of speech and expression, freedom of movement and protection of life and personal liberty.”

Privacy as a constitutional right

The right to privacy in India has had a long history. The right to privacy was first discussed in 1954 in the case of M.P. Sharma vs. Satish Chandra wherein an eight judge bench held that makers of the Constitution did not consider the power of search and seizure as a part of the fundamental right of privacy and it was different from the Fourth Amendment of the Constitution of the United States.

Again, in 1962, a six judge bench in case of Kharak Singh vs. State of Uttar Pradesh held that domiciliary visits at night was unconstitutional for violation of ‘personal liberty’, but upheld that the right of privacy is not a guaranteed right under the Constitution. However, Justice Subba Rao gave his dissent stating that even though the Constitution did not declare the right to privacy to be a fundamental right, it was still an essential ingredient of personal liberty.

A similar incident happened in 1975 in the case of Govind vs. State of Madhya Pradesh where the three-judge bench upheld the existence of a fundamental right to privacy for the first time but the right was not absolute and could be interfered with by a procedure established by law.

Finally, in 2017, a nine-judge bench in Justice K.S. Puttaswamy v. Union of India gave a unanimous decision and proclaimed that Article 21 of the Indian Constitution guarantees to each individual a fundamental right to privacy.

Now, this leads to the question, how did the hoardings violate the right to privacy?

How were the hoardings in violation of this right?

The hoardings were clearly in derogation of Part III of the Constitution. By putting up the hoardings of the protesters, the police infringed their right to privacy under Article 21 and lowered their dignity. Moreover, the police even failed to appreciate their right to freedom of speech and expression under Article 19(1)(a). Even in the K.S. Puttaswamy case, the right to privacy was considered an element of human dignity and personal liberty.

Further, the police contended that the hoardings were put to create a deterrent effect but here are many more accused who have committed more heinous crimes but still there details have not been put up on the hoardings and thus, it was not justified to humiliate these protesters and invade their privacy.

Conclusion

The right to privacy is an ideal example of what we say as ‘today’s dissent is tomorrow’s majority’. It has had a remarkable history and overcame many stumbling blocks before finally gaining recognition in 2017.

The right to privacy is an intrinsic component of the Indian Constitution as well as of personal liberty guaranteed under Article 21.

In the above-mentioned incident, the Uttar Pradesh Police was not justified in putting up the personal details of the anti-CAA protesters as it not only violated their right to freedom of speech and expression but also violated their right to privacy. The act was highly undemocratic and challenged the Constitution.  The suo moto action taken by the judges gave a new ray of hope and took the right to privacy on a higher pedestal and thus, making it stronger and more authoritative.

To conclude, judicial activism should continue to be much more prevalent in India where injustice is not ignored and the rights of every person are successfully secured.

Author: Arya Mittal from Hidayatullah National Law University, Raipur.

Editor: Tamanna Gupta from RGNUL, Patiala

Cyber laws regarding hacking in India

Reading time: 6-8 minutes.

The Indian Institute of Technology-Madras (IIT-M) initiated an investigation into the hacking of one of its servers, which resulted in the temporary suspension of its e-mail services last month. Confirming that one of its e-mail servers was temporarily down, the institution said that the problem had been resolved and normality had been restored. “All e-mails on the server have been backed up and no e-mails have been lost. E-mail backup is underway and will be finished shortly.

The cause is being investigated”, said the IIT-M Director’s Office on the incident. Responding to a question as to whether ransomware was targeted and accessed the research work of students, scholars and academics, the institution said that “no other systems have been affected.” The Public Relations Department has opted not to comment about whether a criminal complaint has been filed with any law-enforcement agency. The problem emerged after the researcher posted a screenshot of the message he received after logging in to the IIT-M server on social media.

The suspected ransomware message stated that all files had been encrypted and, in order to retrieve them, the data had to be decrypted. The user was asked to send an e-mail to a different account for the decrypted file that would be made available for payment. Recognizing that there was a “significant attack” on campus computers, IIT-M sent a letter to students / staff that the virus appeared to hit computers running on a specific operating system and asked them to urgently back up their work.

The root and type of ransomware are under investigation by in-house experts. The Tamil Nadu police denied that they had received any complaint from IIT-M regarding the incident.

Significance of this development

It is important that companies collaborate to build cyber-threat detection and response teams and processes. We know cybercrimes are going to affect even the most trained organizations. As members of our organizations and our sectors, we need to ensure that we are prepared to recognise where these crimes are committed and react appropriately. CFR will help you do that. CyberSec First Responder (CFR) Logical Operations is the ideal credential for a company to use to verify that their staffs have the expertise required to conduct essential information security job functions.

Importance of cyber security

We often equate cyber security with computers, but they really have a far broader application than just that. The first instance of a cyber assault was in 1903, when magician Nevil Maskelyne interrupted John Ambrose Fleming’s demonstration by transmitting derogatory Morse code messages on the auditorium screen! Modern-day hackers had 114 years to update and develop information security infrastructure. Hacking techniques and methods have increased as the Internet has expanded, and it is now much easier to target a company or a person in this way.

These tools have become known as “Manipulate Kits” and are designed to manipulate human vulnerability or weaknesses in your Computer or server; those who use these devices have been dubbed “Script Kiddies.” Good cyber protection is not simply about defending a network, because most hackers do not attempt to penetrate a network, but will rather target a website or a server.

Accessing networks is more challenging for hackers, because most individuals and companies have a firewall in place that is impossible for hackers to penetrate. Minimum cyber security requirements for a network should be as follows: Endpoint Protection, Firewall, Intrusion Detection System / Intrusion Prevention System, Web Filtering Software, Radius Server, Logging Software, Encryption.

Provisions regarding anti-hacking in India

Sections 43 and 66 of the IT Act cover fraud or manipulation of data on civil and criminal offences. Pursuant to Section 43, a simple civil offence, where a person without the owner’s consent accesses the device and removes any data or harm to the data stored therein, shall be liable to civil liability and shall be liable to pay compensation to the individuals concerned. Under the IT Act 2000, the overall pay-out limit was fine for Rs. one crore. However, this limit was removed in the change made in 2008.

Section 43A was introduced in the 2008 amendment to include the business shed where workers stole information from the company’s confidential files. Section 66B refers to fines for obtaining stolen computer resources or information. The penalty requires one year’s imprisonment or a fine of one lakh rupee or both. Mens rea is an essential element of Section 66A.

The purpose or information to inflict unjust harm to others, i.e. the presence of criminal intent and evil mind, i.e. the principle of men’s rea, degradation, deletion, modification or loss of value or use of data, are all main ingredients for bringing any act under this Act.

Development of cyber laws

Throughout the early 1970s, countries started to introduce broad legislation to protect individual privacy. Many of these regulations are based on the frameworks put in place by the Organization for Economic Cooperation and Development and the Council of Europe. The origins of current legislation in this field can be traced back to the first data protection law in the world introduced in the Land of Hesse in Germany in 1970.

This was followed by regional legislation in Sweden (1973), the United States (1974), Germany (1977) and France (1978). The first federal computer fraud legislation in the U.S.A. was the Computer Fraud and Abuse Act, 1984. The fact that only one arrest had ever been made under the Act before it was revised in 1986 demonstrates how difficult it is to draw up successful laws on computer crime.

The Information Communication Technology Revolution in India began in 1975, when the Government of India strategically agreed to take proactive steps towards the development of information systems and the use of computer resources. The National Information Technology Centre under the Electronic Commission / Department of Electronics was the result of this view and was supported by the United Nations Development Program (UNDP).

The establishment of the National Association of Software Services Companies at the beginning of the 1990s reflects the power of India in this field. The Internet came to India in 1995 and, after nearly five years, India was getting ready to legislate on its first cyber law. The Information Technology Act, 2000 heralded a new cyber law regime in the country. India became the 12th nation in the world to enact cyber laws.

Conclusion

There is no question that hacking is a major threat to the virtual world. Not many people in the country are aware of the theft. There needs to be more understanding of hacking and cracking in the world. The laws of the government are stringent, but there is a lack of enforceability and knowledge in society. Most of the minor hacking cases go unnoticed as people are abstaining from filing cases for petty offences even though it is seriously punished.

Also, it is very difficult to track down a virtual hacker due to lack of equipment. Since hacking can happen anywhere in the world, it is hard for the police to track the culprit down and arrest him in another country. These issues need to be resolved for effective implementation. Punishment can also be made a little more strenuous to discourage citizens from committing these crimes.

Author: Harneet Singh from Presidency University, Bengaluru.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Circumstantial evidence

Reading time: 6-8 minutes.

In a recent judgement in the case of Md. Younus Ali Tarafdar v/s The State of West Bengal, the accused was acquitted by the Apex Court after a long trial in different courts which lasted 36 years. The appellant had been held liable on the basis of a signature, which was for the slip for repair of an Anglo-Swiss watch, apparently belonging to the deceased’s brother and last worn by the deceased.

The testimony by 3 people only pointed that the last person the deceased met was the appellant and on basis of those testimonies and the fact that he was in possession of that watch, the appellant was sentenced of rigorous life imprisonment under Section 302 with Section 34 and under Section 102 of Indian Penal Code. Later the appeal was dismissed by High Court and the decision of trial court was affirmed.

However, acquitting the accused, the Supreme Court noted in its judgement: “There is no direct evidence regarding the involvement of the appellant in the crime. The case of the prosecution is on the basis of the circumstantial evidence… A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the appellant”. It was held that if there is any conviction on basis of circumstantial evidence, it should be so when there is no room left for the doubt and the hypothesis is proven right beyond any reasonable doubt.

Meaning of circumstantial evidence

What is evidence? Evidence is the documents and materials presented by prosecution and defence for the court to reach a decision or verdict. That evidence can be oral, documental, Real, Primary, Secondary, Hearsay, Direct and Circumstantial evidence. The evidence gives base to the argument of someone’s fate; as they decide a person’s guilt or innocence.

Circumstantial evidence is defined by Peter Murphy as “evidence from which the desired conclusion may be drawn but which requires the tribunal of fact not only to accept the evidence presented but also draw an inference from it.”  Circumstantial evidence is referred to as indirect evidence. Direct evidence is given more preference than circumstantial evidence as it does not require any type of inference and it is a direct proof of an illegal act committed. But in the cases of serious offence such as murder for which the punishment is death penalty, conclusion cannot be drawn solely on the basis of circumstantial evidence as it needs the help of inference to prove it.

Legal provisions involved

Section 106 of Indian Evidence Act 1872 states that – “Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”

For instance, if the wallet of the deceased person was found in house of accused after his murder, the burden of proof is on accused to show how he came to be in possession of the deceased person’s wallet and that he has not committed murder. This is an example of “Last seen doctrine” where it can be implied that it is the accused who has committed a crime, just because he was last seen with the victim. Even then, conviction cannot be based on this said assertion solely, but in such cases the burden of proof is on the accused person.

Conduct of the accused also plays an important role in corroborating circumstantial evidence. If the accused has behaved in an abnormal and unnatural way such as absconding, inability to prove his alibi or contamination of crime scene etc., which can establish the mala fide intention of the accused or can destroy his innocence; this can be a relevant factor in building the chains of events which can lead to him being liable for the said crime.

Can circumstantial evidence be considered conclusive?

Judiciary has not concluded whether the circumstantial evidence can be considered as the evidence solely for the conviction or innocence of a person; however in such cases the judges and prosecution are expected to take higher precautions because it varies from case to case how much emphasis should be given to such evidences. It is also essential that the circumstantial evidence should be in corroboration with other indirect evidences including DNA test, finger print, and witness, and handwriting, discovery of an object in possession of accused which can connect the accused to the crime and set his guilt beyond any reasonable doubt or can prove his innocence without any question.

In cases where the prosecution has solely based the case on circumstantial evidence, then the courts have to satisfy that various circumstances building a chain of events rule out any possibility of the innocence of accused. If in case the chain of events has any loophole or a break in between, then in such cases the consequent circumstances cannot be considered to establish the guilt of the accused.

There are various cases where circumstantial evidence plays an important role like adultery and dowry cases. But as circumstantial evidence is indirect evidence, it cannot be taken into consideration without proper examination. There are certain cases where circumstantial is not considered to be strong evidence. For instance, if Mr. A saw Mr. X lying dead on the floor and Mr. Y was holding a wooden stick which was covered with blood, the question which arises in one’s mind is regarding intention to kill. The main reason behind the death of Mr. X cannot be determined without proper examination. 

Case laws

In Shah Guman Mal v. A.P. [AIR 1980 SC 793], a person was found in possession of gold with foreign markings and the Supreme Court held that burden lay upon him to account for his possession.

In State of Tamil Nadu v. Arunachalam [1992 Cr Lj 3930 (Mad)], the sample of flour was taken from a grocery store which was not good in quality and the person who was accused took the plea that it was kept not for human consumption but for pasting purpose. It was held that it was a special knowledge of the accused and it was for him to prove such knowledge and having not done so, it could not be said that the burden cast on him had been successfully discharged.

In Provincial Government, Central Provinces and Berar v. Champalal [(1946) Nag 504] and in Gullegar Setty v. State of Mysore [(1953) Mys 298], it was held that non-appearance as a witness would be the strongest possible circumstance to discredit the truth of the case.

In Sucha Singh v. State of Punjab [AIR 2001 Sc 1436], the court said that depending upon the circumstantial facts of the case, it could be presumed that all the abductors were responsible for the murder. If not, it was held that it was for the abductors to explain what they had done to the victim.

Conclusion

From the following facts and circumstances, we can figure out that circumstantial evidence plays a vital role during the investigation process as well as during the examination of the facts. It also helps to find out the motive behind the act or crime. But it does not mean that circumstantial evidence provides relevant fact of the case all the time. Therefore, we can conclude by stating that circumstantial evidence gives us a general idea and fact of the case and if it is properly analysed and examined, then it can lead to a definite conclusion.

Authors: Uttara Roy from NEF Law college and Antish Rathore from Alliance University of law, Bangalore.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Bihar shelter home case

Reading time: 6-8 minutes.

A Delhi Court through Additional Sessions Judge Saurabh Kulshreshtha sentenced Brajesh Thakur and 11 others to imprisonment for life for sexually and physically assaulting several girls in a shelter home in Bihar’s Muzaffarpur district. These offenders were charged under various offences under the Protection of Children from Sexual Offences (POCSO) Act, and under the Indian Penal code (IPC).

Facts of the case

In a shelter home run by an NGO Sewa Sankalp Evam Vikas Samiti at Muzaffarpur, Bihar, cases of sexual abuse, rape and torture were reported. In May 2018, reports of sexual abuse surfaced at the shelter after Mumbai’s Tata Institute of Social Sciences (TISS) carried out a social audit of shelter homes across Bihar for 2017. In its report, TISS pointed out the sexual abuse of girls at the Muzaffarpur shelter home.

After TISS submitted its report in April 2018, an FIR was lodged against 12 people on May 31, 2018. The main accused, Brajesh Thakur was the head of the NGO, who ran various other NGOs as well. Because of his political connections, there was an apparent delay in investigation and only when the CBI interfered that the trial and the case expedited.

Following the filing of FIR, the girls were rescued and shifted to Madhubani, Patna and Mokama. Medical tests at Patna Medical College Hospital in June confirmed the sexual abuse of 34 out of the 42 girls housed at the shelter home. The test stated that girls were forced to undergo abortion and one was even killed and buried within the shelter compound, however on exhuming to investigate the same, no dead body was found. On 2 August 2018, the Apex Court took a suo moto cognizance in the Muzaffarpur shelter home case and brought the case directly to itself.

Legal provisions involved

In its 1,546 page judgment, the court had convicted Brajesh Thakur and 11 others of offences under Indian Penal Code for Criminal Conspiracy (Section 120-B), causing hurt by dangerous weapons or means (Section 324), voluntarily causing hurt (Section 323), under POCSO Act for failure to report the commission of an offence (Section 21) and under Juvenile Justice Act for cruelty to a Child (Section 75).

Public reaction to the case

The acts of the offenders have been abhorred by every citizen of the nation. The morbid acts of sexual assaults that the offender have committed show their inhumanity and portray that despite human evolution there is a grey area in our brains which divests us with our cumbersome past.

• In Bihar, the case drew criticism of the ruling party not only by the opposition leaders but also by the Supreme Court of India.
• The Apex Court has asked media organizations not to interview the accused or the victims to avoid traumatizing them and establishing narratives in this case.
• Political parties have led a state-wide strike all over the nation. A protest organised by 12 political parties was held at Jantar Mantar specifically against this case and the latency that has been made in this case.
• The CBI has sought for life imprisonment for Thakur stating that rape is a crime of lust and power and leniency should not be shown to the convicts as the victims in the case were minors.

Significance of current development

Significance of this case cannot be read in isolation of the TISS report. It is due to the TISS report that the Shelter Home Case of Muzaffarpur came into light. The report has dealt with the condition of Shelter Homes not only in Muzaffarpur but in all of Bihar. The report mentions that more than 45% of the shelter homes are in no condition to accommodate people.

The report has stated that the staffs are untrained, they lack the knowledge to run such institution and concurred that this is the major reason why a case like Muzaffarpur arose. This is not the case only in Bihar, if in every part of the nation such audit reports are made many more cases would come before us.

But considering this particular case in isolation one can learn a lot. Firstly, the management of such institutions should understand the importance of their jobs and should also understand that the violation of their duties may lead to so much turmoil as was in this case. Secondly, States should try to maintain a standard of work in such institution because if cases like this would arise it would be a stain not only on the state but also on the nation because cases like these simply defeat the very notion of human rights.

Considering the judgment in the present case our legislature should work upon developing a law which is so robust that a person committing such crime should think twice for the consequences which would in turn help take the criminality out from the minds of such people. It is only when we learn from cases like these that no new case would arise in the future otherwise all that has happened will simply lose its significance and will serve no purpose.

Conclusion

This case was a perfect example of how authority maligns the mentality of a person and leads him/her on the route of moral turpitude. It is offenders like these who defeats the purpose of basic human rights of the weak and action against them should be expedited and rigorous action should be taken so that an example could be established to prevent such crimes in the future. It is high time now for our nation and deterring such offences is only possible when we as citizens work hand in hand with our government to curb out this problem.

Author: Pratyush Pandey from Rajiv Gandhi National University of Law, Patiala.

Editor: Tamanna Gupta from RGNUL, Patiala

Gargi college incident (Delhi University)

Reading time: 6-8 minutes.

On 6^th February during a festival in Gargi College in Delhi, a large group of drunken men entered into the college premises with a motive of molesting and harassing the women student and did the same. It was noted by the crowd that the outsiders who entered into the college were participating in a CAA rally nearby when they entered the college and groped the student, locked them in washrooms and misbehaved with them.

Over eleven (11) police teams were involved in looking at technical details and they also visited several places in Delhi NCR to identify the suspects and investigate the case. Several other people were questioned by the police and multiple suspects were identified. The footage of 33 CCTVs installed on the college premises were examined by the police in which footage of 3 CCTVs, it was found that a large group of youth pushed a catering van to damage a gate and after damaging the gate, they all rushed in by climbing over the barricades and started molesting women.

Atul Thakur, DCP (South), said that “the arrested persons are from various colleges of Delhi University and other private universities in NCR. The accused are in the age group of 18 to 25 years. Ten (10) people have been arrested and the investigation is still on and more people will be arrested. We identified the arrested persons with the help of CCTV footage.”

The incident came into light when some students of Delhi University’s Gargi College narrated their unpleasant experiences during a college fest on February 6 to social media and stated that the security personnel did nothing to control the incident.

The college students boycotted the classes, while over 100 students held a protest on February 10 outside the Gargi College, demanding strict action against the intruders and resignation of Principal Promila Kumar. The students had also demanded a fact-finding committee to look into the matter, and its interim report has come out in support of the students’ allegations, confirming that several students faced various levels of harassment, with complaints ranging from flashing, groping, throwing eggs, inappropriate comments, being chased, belongings being stolen etc.

Delhi Police registered a case on February 10, 4 days after the incident, when they received a complaint from college authorities. This case is registered at the Hauz Khas police station under Indian Penal Code, 1860 u/s 452 (House-trespass after preparation for hurt, assault or wrongful restraint), 354 (Assault or criminal force to woman with intent to outrage her modesty), 509 (Word, gesture or act intended to insult the modesty of a woman) and 34 (Acts done by several persons in furtherance of common intention). Moreover, the SC has refused to entertain a plea and asked for the case to first be taken to the Delhi High Court.

Legal provisions involved

There are various legislations which deal with crimes like molestation and harassing women and various acts have been made punishable, out of which there are many relating especially to women such as Disrobing a woman, Voyeurism, Stalking, Acid Attack, Sexual Harassment, Cruelty by husband or his relatives, Dowry Death and many others.  Indian Penal Code, 1860 deals with the provisions for all of these.

Under Indian Penal Code, 1860, (IPC) Section 452 deals with the provision for the persons who commits house trespass having preparation for causing hurt to another person or wrongfully restraining another person or to put any person in fear of hurt or assault or wrongful restraint. He shall be punished with imprisonment for the term decided by court, which can be extended to seven (7) years and shall also be liable to pay fine. In the present case, we can relate the incidents to this provision of law as there was trespass into the college and all the women were put into the position of fear and were wrongfully restrained in the washroom. This offence is cognizable, which means that the police can arrest those persons without a warrant and can start an investigation with or without the permission of court. In addition to this, the offence is also non-bailable.

Another legal provision in IPC is one that deals with assault or criminal force to woman with intent to outrage her modesty under Section 354. It talks about the person who assaults or uses criminal force towards any woman with the intention to outrage the modesty of the woman. He shall be punished with the term not less than one year but which can be extended to five years as the case may be. It is also a cognizable and non-bailable offence. In this Section, assault is a special ingredient.

In the resent case too, the incident hampered the modesty of the women and criminal force was used as well. In the case of State v. Hetram 1982 (2) Crimes 161,  a girl, who was about 15 years, was coming from her mother’s place when the accused suddenly came between the road and dragged her towards the other side of the road and took her to a secluded spot. It was held that this act was sufficient to book the accused under S. 354.

In the case of State of Punjab v. Major Singh AIR 1967 SC 63, the accused had caused injuries to the vagina of a seven and a half month old. The court held that the essence of women’s modesty is her sex. Young-old, Intelligent- dumb, awake- sleeping, women possess a modesty capable of being outraged.

Further, under S.509 of IPC, it is stated that any person who intends to insult the modesty of the woman by words or gestures or the act or makes any disrespectful sound or exhibits any object which intrudes the privacy of the woman shall be punished with simple imprisonment for a term which may be extended to three years and also with the fine depending upon the facts of the case. In the Gargi case, similar behaviour can be seen as the intruders outraged the modesty and insulted woman by locking them in the washroom, passing derogatory comments and inappropriately touching them. It is a cognizable and bailable offence.

In Bankey v. State of U.P. AIR 1961 All.131, wherein the accused entered the apartment of a lady, caught hold of her and removed her garments, it was held by the court that he had intruded upon the privacy of the woman. This section does not require element of criminal force or assault which is essential element of offence under S. 354.

For all these offences, a statutory body named The National Commission for Women (NCW) was formed in January 1992 under the National Commission for Women’s Act. Its mandate is to advice the government on all policy matters concerning all the women, to review various legislation created by legislators and to intervene or initiate proceedings in the Supreme Court on matters concerning woman.

Conclusion

Notwithstanding the number of laws to protect and safeguard the rights and interests of the woman, the rate of crimes against women is mushrooming day by day. The incident at Gargi College further highlights the despondent situation of women, as many students of all-girls college were molested and sexually assaulted in their own fest, in the heart of India’s capital.

It is well said by the people that it takes two to tango. It implies that only law is not responsible to control and regulate the increase of the crimes against the women in our society. The inculcation of social ethics, morals and values respect and honor in every human being towards women is the need of the hour. There is exigency of more strict and fast action to be taken against the harassers in the present case too, with cooperation of the college authorities and the police.

Author: Karan Kashyap from Bharati Vidyapeeth University, Pune.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Explained: Curative petition

Reading time: 6-8 minutes.

Why is the curative petition breaking news?

The barbaric and horrendous gang rape of Nirbhaya in 2012 shook the conscience of every individual in the country. It triggered unfathomable fear in every woman, raised serious questions of the law and order of the country and created unprecedented pressure on the government for stricter rules on safety and well-being of women.

The judicial journey of the case has been long and difficult, but nevertheless remarkable in itself. It has not only revealed the loopholes of the existing system, but has quickened and encouraged for the formation of a better and safer environment for women and juveniles in India.

However, the time invested in exhausting the available procedures before finally punishing the convicts has sadly made amplified the maxim ‘justice delayed is justice denied’.

The five accused were charged for the offences of kidnapping, rape and murder. One of the convicts committed suicide in prison, while and the juvenile convict was sentenced to three years in a reformatory centre. The remaining three convicts were tried in fast track court and were found guilty of rape and murder and were sentenced to death by hanging in 2013. The decision was upheld by the Delhi High Court in 2014, and subsequent review pleas filed by the convicts were dismissed by the Supreme Court.

The counsel for the convicts filed for curative petition in 2019, arguing that the young age and socio-economic background should be considered as mitigating factors. This argument was rejected as well. The mercy petitions filed before the President of India weren’t given a positive reply either. The Delhi Court has finally issued a fresh death warrant, fixing the hanging of all men for February 1^st, 2020.

What is a curative petition and how did it develop?

A curative petition is the final and last option available to the people for redressal of grievances in the court of law and to acquire justice as mentioned and promised by the Constitution of India after the review plea is dismissed or has been exhausted. For some, it is the last opportunity for the unheard of being heard. For others, it is a Supreme Court creation which goes against its own power.

The Constitution explicitly speaks of the review power of the Supreme Court of India under Article 137. But the concept of curative petition is fairly new in the field of law in India. The Supreme Court of India evolved the idea of curative petitions in the landmark judgment of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002).

In this case, the question was raised of whether an aggrieved person is entitled to any relief against the final order/judgment of the Supreme Court after dismissal of review petition, either under Article 32 of the Constitution or otherwise.

The five-judge bench of the highest court observed that Article 142 of the Constitution empowers the Supreme Court to act in whatever manner they may deem fit to establish complete justice. Therefore, to protect the substantive rights of the litigant, the Constitution Bench came up with the theory of a curative petition.

The main idea behind the introduction of the new concept was that though the judges do their best to fairly decide a case, their action is subject to human limitations and there may arise a situation where they would have to reconsider their decision in order to prevent abuse of power and to cure the gross miscarriage of justice.

The court used the Latin maxim, ‘actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. The maxim becomes applicable because it would not only be proper but also obligatory both legally and morally to rectify the error.

What are the grounds that allow entertainment of curative petition?

Supreme Court held that only in the rarest of the rare cases, where very strong reasons are present for the court to look into the matter again would it accept an application seeking reconsideration of an order of the apex court which has become final on dismissal of a review petition.

A petitioner is entitled to relief under curative petition, if he establishes that:

• Violation of principles of natural justice where he was not a party to the matter, but the judgment adversely affected his interests.
• He was party to the matter, but was not served with notice of the proceedings and the matter proceeded as though he had the choice.
• Wherein the proceedings a Learned Judge failed to disclose his connection with the subject matter.
• The parties giving scope for an apprehension of bias and that the judgment adversely affects the petitioner.

In the curative petition thus filed, the petitioner shall assert the grounds mentioned therein, which have been taken in the review petition and that it was dismissed by circulation. The curative petition should also contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

The curative petition is then circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of in the petition. It is only when majority concludes that the matter needs hearing, that it should be listed before the same Bench to pass appropriate orders.

The court in the 2002 case added that if at any stage it finds that the petition is displeasing, it could impose exemplary damages on the petitioner. Moreover, it is usually decided by judges in chamber, unless a specific request for an open-hearing is made. The court did not mention any limitation period to file the petition but it was pointed out that it should be within a reasonable time.

Review petition vs. Curative petition vs. Mercy petition

As per article 137 of the Constitution and the rules made under Article 145, the Supreme Court has the power to review its pronounced judgment as an exception to the principle of stare decisis. It is to be filed within 30 days of the pronouncement of the judgment.

If the review petition is dismissed, the curative petition becomes the last judicial resort to turn the judgment in one’s favor. It differs from a mercy petition filed under Article 72 before the President and under Article 161 before the Governor, in that such mercy petitions are based on the claims of mercy, and not on the legality of the judgement petitioned against.

Conclusion

Rectification of an order stems from the fundamental principle of rule of law that proves justice is above all. The introduction of curative petitions strengthens the accountability of the judicial system in India by providing an opportunity to undo possible wrongs, making an individual more empowered with life under Article 21 of the Constitution but at the same time, it becomes essentially necessary to be cautious while dealing with these petitions so as to prevent its misuse by the applicants and to save the precious time of the courts. 

Author: Shambhavi Sirothia from Symbiosis Law School, Pune.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Analysis: The Juvenile Justice (Care and Protection of Children) Act, 2015

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The Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval on 22 December, 2015, replacing the pre-existing Juvenile Justice (Care and Protection of Children) Act, 2000. There was a great need to have an efficient juvenile justice system to control the growing crime rate in India.

The treatment of children ought to be different from that of adults. They should be given more room for improvement and reformation. Therefore, arises the need for a separate justice system for children in conflict with the law. Many young offenders are also victims, with complex backgrounds.

These children are distressed because, more often than not, they are being abused, exploited or neglected, or they do not have parents to take care of them, or are mentally ill. Due to their sensitive needs and volatility, they are also likely to be inducted into drug abuse or trafficking.

It has been recognised that children, when dependent on the same justice mechanism as adults may find themselves further victimised by the system itself, and therefore, arises the need for a separate legal justice system.

Salient features of the Act

The existing law for juvenile justice in India is the Juvenile Justice (Care and Protection of Children) Act, 2015. It was enacted to adopt a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this law.

• Definition of child

Firstly, the act defines a child as a person who has not completed eighteen years of age. The Act classifies the term “child” into two categories, namely ‘child in conflict with law’, and ‘child in need of care and protection’.

• Classification of offences

The Act has also made a clear distinction of the kinds of offences, categorising them as petty, serious and heinous. It stated that in case of a heinous offences alleged to have been committed by a child who has completed or is above the age of sixteen years, a preliminary assessment with regard to his mental and physical capacity to commit such offence will be conducted, and that the child may be tried as an adult.

It was by this Act that it was recognised that the rights of juvenile accused are equally important as those of victims, and therefore, special provisions were proposed to tackle heinous offences committed by individuals in the 16-18 age group. This provision of the Act has faced criticism, which will be dealt with later on.

• 2015 Amendment

The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in the Lok Sabha on 12 August, 2014 by the Ministry of Women and Child Development. This Bill aimed at making a more robust, effective and responsive legislative framework for children in need of care and protection as well as children in conflict with law.

In the Act of 2015, the definition of a ‘child in need of care and protection’ had been expanded, such that it includes a child who is:

• Found working in contravention of labour laws, or
• At imminent risk of marriage before attaining the lawful age, or
• Who resides with such a person who has or had threatened to injure, exploit, abuse or neglect the child or violate any other law, or
• Whose parents or guardians are unfit to take care of him/her.

Also, the definition of ‘adoption’ had been added, and the rights of an adopted child have been recognised in the Act.

• Introduction of children’s court

A very important provision of ‘children’s court’ had been made, which was absent in the 2000 statute. Under this, a court is established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing and where such courts have not been designated, the Court of Sessions is having jurisdiction to try offences under the Act.

Critical analysis

The new Act of Juvenile Justice (Care and Protection of Children) Act, 2015 has faced wide criticism. The criticisms are as follows:

• Treatment of juveniles as adults in some cases

One of the major of these criticisms is that under this Act, juveniles can be tried as an adult if they committed the wrongful act as an adult. The UN Convention on the Rights of the Child requires every individual below the age of 18 years to be treated as a ‘child’. Therefore, the above-mentioned provision in the Act of 2015 is seen to be in contravention of the Convention. Some also say that it destroys the rehabilitative foundation of the existing juvenile justice system in India.

• Inherently discriminatory nature of the Act

Another criticism is that this new law discriminates against children on the basis of their age and nature of the offence. It is also not premised on the understanding that children cannot be held to the same standards of culpability as adults because of their developmental immaturity and their amenability to rehabilitative interventions.

• Scope for misuse and arbitrariness

It is also criticised that the method of identifying whether the child between the age of 16 and 18 years committed the crime as a child or as an adult, is very subjective, and may be very inaccurate at times.

• Children’s Courts being

It is also said that the children’s courts, that were essentially developed to try offences against children, are now trying offences by children under the new law, which destroys the essence of these courts.

Also, upon turning 21 years of age, the fate of the person will lie in the hands of the Children’s Court. As per Clause 21 of the Act, the Court will decide whether a person has “undergone reformative changes” or “can be a contributing member of the society”. Such an inquiry is highly subjective and prone to arbitrariness that falls foul of Article 14 of the Indian Constitution.

Similar laws in other countries

The system of juvenile justice may be different in different countries. The stage of development of the understanding, discourse and even the law in the area of juvenile justice vary from one region to another, depending upon the history and culture of its citizens, their approach to human rights, their legal and technical capacities and their government.

• Juvenile justice system in the UK

In the UK, as juvenile crime became a growing concern, many legislatures adopted stricter laws, and Children and Young Persons Act of 1993 was implemented. Section 16 of the Act provides that a person under the age of 10 should not be arrested.

Between the ages of 10- 14 years a child is presumed not to know the difference between right and wrong and therefore incapable of committing a crime due to lack of mens rea.

It also provides that a child may be only kept in police custody for 72 hours and as soon as possible the constable concerned should arrange for the investigation to take place. A juvenile who has been arrested with a prior warrant should not be released according to Schedule 6, para 19(b) of the Police and Criminal Evidence Act.

A juvenile must not be detained in a police cell unless no other accommodation is available and the custody officer does not think it is practical to supervise him if he is not placed in a cell.

• Juvenile justice system in the US

The 19th century US witnessed a drastic change as far as treatment of Juveniles was concerned. Big cities like New York and Chicago opened New York House of Refuge in 1825 and Chicago Reform School in the year 1855 respectively for juveniles to separate them from adult hardened criminals.

The first juvenile court in the US came into existence in the year 1899 in Illinois. After this within a span of 25 years most states had established juvenile court system.

The age of majority varies in separate States in the US. There is unanimity in almost all US States on the point of trying juveniles at par with adults on juvenile attaining the age of fourteen years in certain circumstances barring states like Vermont, Indiana, South Dakota where a child of even ten years can be tried as an adult.  In heinous crimes even life imprisonment can be granted to child aged twelve years.

Conclusion

The rising rates of juvenile delinquency and crime committed by juveniles is a pertinent issue today and due focus must be provided. Though the Government has passed statues dealing with this issue, these statutes have shown to do nothing to neither reform juveniles, nor deter them from crime.

It can be concluded that a separate legal system for juveniles is necessary for better handling of cases related to juvenile delinquency. The reformist aspect of juvenile criminal jurisprudence must be focused upon, over its deterrent aspect. It can be seen that the 2015 Act, albeit its criticisms, achieves the balance between the penal and the protective, such that the minor is sufficiently rehabilitated and dissuaded from crime at the same time.

Author: Deepali Sherawat from NMIMS, Mumbai.

Editor: Anna Jose Kallivayalil from NLU, Delhi.