Fast Track Courts: A paradigm of speedy justice?

Reading time: 6-8 minutes.

The number of pending cases in India has reached an insurmountable magnitude. To grapple with this ever-increasing pile of pending cases, in the year 2000, the 11th Finance Commission, under the chairmanship of Professor Dr. Syed Ali Mohammad Khusro Hussaini had recommended the setting up of special courts known as Fast Track Courts.

Nearly 1800 Fast Track Courts were set up, which ensured that justice was significantly streamlined. However, in the subsequent decade, the nation was shaken as the news about a 23-year old’s brutal rape came to light. This case was seen to have played the role of a catalyst, further stimulating an even bigger need for the setting up of these Fast Track Courts.

One of the primary purposes of setting up these Fast Track Courts is to alleviate the whole situation of pendency of cases, especially those involving abominable, heinous crimes. The mechanism of Fast Track Courts complies with the ideals of “right to speedy trial” that was enshrined in Article 21 of the Indian Constitution in the landmark judgement of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar.

Justice delayed is justice denied:

The issue of everlasting pendency of cases has beleaguered the Indian common man since time immemorial. There are about 43 lakh cases that are pending in the High Courts. Taking into notice these gargantuan numbers, Justice Ranjan Gogoi took the initiative to reach out to the Prime Minister of India, asking him to increase the number of judges at the High Court level. 

Additionally, he also pleaded for the increase of the retirement of High Court judges from 62 years to 65 years. He repeatedly exclaimed that the reason behind the pendency was the dearth of efficient judges. It is interesting to note that even the Law Commission of India, in the year 1987, proposed an increase in the number of judges at the High Court level.

The paucity of qualified judges at the Sessions Court level has also been viewed as a major setback, further leading to the never-ending piling up of cases. Another major factor contributing to the pendency in cases is the lack of sufficiently qualified judges at all judicial levels – an efficient judge could produce a sound judgement and prevent the need to have multiple hearings for a single case, thereby saving the court’s precious time.

It could be observed that lawyers also add to the delay in obtaining justice by unnecessarily demanding for adjournments, which delays the due course of justice, thereby leading to miscarriage of justice. Additionally, it is also observed that lawyers go on endless discourses, further stymieing the proceedings.

Yet another predicament arises when each law is faced with innumerable changes. That is, these countless amendments pave the way for a storm of confusion, further stifling the court’s pursuits. Moreover, it has been observed that the judicial realm lacks a meticulous work environment. To elaborate, it could be discerned that the number of public holidays that forestall the courts’ proceedings is unprecedented.

Allocation of funds by the government to the judiciary is also very low, hence preventing the courts from enlarging their pool of resources that could be essential in carrying out the courts’ proceedings. It is interesting to note that even growing literacy rates and an increased sense of legal awareness among the masses have also been viewed as a contributing factor to the ever-increasing pile of cases.

It is further observed that the process of lengthy and verbose judgement writing slows down the speed of the trials. Additionally, lack of meticulous and organised classification of cases adds to the lengthening of the proceedings, thereby delaying justice from being served. Moreover, one governmental department suing another governmental department also further aggravates and aggrandises the matter of contention.

Speedy justice:

In the year 2019, Smriti Irani, the Union Minister of Women and Child Development suggested the setting up of 1023 Fast Track Courts to settle the unresolved cases that had been filed under the Protection of Children from Sexual Offences (POCSO) Act. The central goal of these Fast Track Courts is to resolve the increasing pile of pending cases in a shorter duration of time.

Consequently, these courts have proved to be beneficial and efficient in disposing of cases pertaining to child crimes. For instance, in Bihar, a particular Fast Track Court had resolved a rape case within a span of six days, imposing the death sentence on a 25-year-old man accused of raping his three-and-a-half-year-old niece. These courts could also prove to be beneficial in keeping up with the newer breeds of crimes that keep arising.

The aim is also to reduce the number of under-trials. India is found to have the 3rd largest number of under-trials in Asia. Fast Track Courts have successfully resolved millions of cases, further relieving the courts. It was further observed that these Fast Track Courts have enabled the furtherance of efficiency at the judicial levels. It is interesting to note that Fast Track Courts have the highest efficiency rates.

Problems:

Despite the major merits of this mechanism, one cannot overlook certain problems that crop up. For instance, ordinary courts spend copious amounts of time to examine even the most microscopic of details; on the other hand, in Fast Track Courts, cases are resolved without as much deliberation.

Hence, it is said that certain outcomes of these courts lead to a gross miscarriage of justice. Additionally, Fast Track Courts are haphazardly allocated with different types of cases in different states. Further, it has been observed that Fast Track Courts heavily depend on the creation of additional positions and little heed is paid to the ground-level problems; indiscriminately increasing the number of judges does not single-handedly solve the pendency of cases in the country.

Various Fast Track Courts do not have the required technological infrastructure and well-equipped staff to cope with the increasing number of cases. Another interesting concern pertains to the fact that the allocation of judges to the Fast Track Courts would indefinitely increase the workload of the judges at the other judicial levels.

Improving the mechanism:

Over the years, with the emergence of Fast Track Courts, it can be observed that these courts have increasingly been burdened with too many cases. As a direct consequence, these courts have been a witness to dwindling rates of productivity.

Thus, concrete steps must be taken to ensure enhanced organisation and proper allocation of cases. The lack of infrastructure is a huge problem that these courts are plagued with. Therefore, allocation of resources must be done in a just and equitable manner to ensure that justice is served accurately.

Additionally, instead of just appointing ad-hoc judges to the Fast Track Courts, permanent appointments must be made so that there is a fixed establishment. Furthermore, there is a lack of accountability in this structure. That is, these courts are appointed for a very short durations of time, which instils a sense of angst among the complainants.

The ad-hoc judges, so appointed to these courts, are seen to have disposed cases at a mind-boggling rate. However, during their actual careers, they were cautious while dispensing their duties, owing to the burden of disciplinary actions.

However, in the Fast Track Courts arena, these judges are not subjected to the onus of disciplinary proceedings, which gives them unbridled leeway. This lack of accountability could prove to be detrimental to the ideals of Fast Track Courts. To abate this situation, strict guidelines must be followed to ensure that instances of malfeasance are nipped at the bud.

Conclusion:

Fast Track Courts have proved to be a substitute to the judicial spheres, which seek to assuage the plight of the victims and give them light in the form of justice. Even though these courts have proved to be beneficial in achieving these ideals, they have also proved to be too hasty, leading to callous inaccuracies, which could have been avoided with more astute scrutiny of details pertaining to the cases. The rectification of the various flaws in this system might help catapult this institution to another level.

Author: Vaishnavi Kokonda from NALSAR University of Law, Hyderabad.

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

Analysis: CAA in Supreme Court

Reading time: 6-8 minutes.

The Supreme Court, on the 18th of December, decided to examine probes which challenged the constitutional validity of the controversial Citizenship Amendment Act.

The act states that “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan (subject to certain conditions) shall be deemed a citizen of India”.

This act and the bill which gave rise to it, both, were in the limelight due to the harsh criticism they faced for being in the critics’ words “patently unconstitutional”, “non-secular” and “a threat to equality”.

The apex court of the nation has issued a notice to the Centre to respond to the plaints by the second week of January. A bench comprising of the Chief Justice SA Bobde, and honourable Justices B R Gavai and Surya Kant would be hearing the 59 petitions on January 22nd, 2020. They did not stay the law because, as explained by them, an Act once passed and notified as a law cannot be stayed.

Upon the court’s suggestion, the Centre made a video explaining the Act and its complicities for the ordinary citizens to make them aware of it.

Background: Why was CAB introduced?

The Citizenship Amendment Act was initially introduced as the Citizenship Amendment Bill in the Parliament. The CAB was introduced with the aim of providing citizenship to illegal immigrants from Pakistan, Afghanistan and Bangladesh who have been residing in India for the past 5 years, rather than the earlier requirement of an 11 year stay in the country, belonging to the Hindu, Parsi, Jain, Sikh, Buddhist or Christian community. The legislation is applicable to groups who arrived in India on or before December 31, 2014.

 The bill states that it will not only grant citizenship to the said people but will also exempt them from all legal proceedings and action against them for illegal immigration. The bill exempts the tribal areas of Assam, Meghalaya, and Tripura from its applicability.

It also exempts the areas regulated through the Inner Line Permit, which include Arunachal Pradesh, Mizoram, Nagaland and Manipur. The amendment has exempted those Overseas Citizens of India (OCIs) who, in any act, violated the provisions of CAA and also gave them a right to be heard before doing so.

The main reason for introducing this bill was to safeguard the minorities of these countries from the years of physical, mental and social suffering they’ve bared. The bill was criticized by the opposition for being divisive and something which could lead to communal violence. However, it was passed in Parliament on December 11th with a clear majority.

Grounds on which CAA is being challenged:

The CAA faced and continues to face harsh criticism from both ordinary citizens along with people in power including politicians, reporters, legal professionals, tech pioneers and many others. It has been starkly criticized and some of the main grounds challenged are enlisted.

The Indian Union Muslim League has challenged the CAA, contending that it violates the Fundamental Right to Equality guaranteed under Article 14 and 15, stating that it grants citizenship to a part of illegal immigrants while excluding others, here, Muslims.

It explicitly discriminates against Muslims, according to them, and only benefits Hindus, Christians, Buddhists, Jains and Sikhs. It is violating the Fundamental Right to Equality by placing people belonging to the Muslim community and others on different pedestals and in a way also violates the Right against discrimination by discriminating them on the basis of primarily religion in a country which is secular, i.e., has no official religion and welcomes all to profess, practice and propagate their respective religions.

Congress leader Jairam Ramesh has filed a plea challenging the amendments of the act to be “a brazen attack on core fundamental rights” and claimed that it treated the “equals as unequals”.

Jairam has challenged the two bases for classification made in this act, which are geography and religion, neither of which are, according to him, logical to take into consideration and a rational nexus to the aim of the act which is providing shelter, citizenship and security to innocent refugees who face torture, discrimination and bear the brunt of belonging to a community which their home nation does not associate itself with.

A group of civil rights activists have filed a plaint in the Supreme Court censuring the Act for not only threatening equality but also the Right to Life and Personal Liberty which is a Fundamental Right granted under Article 21 of the Constitution.

The Act, in a way, debars those persecuted minorities that do not belong to the aforementioned countries and communities not mentioned as they would be deprived of enjoying a life of human dignity solely on the basis of their religious affiliation.

Many have come forward to condemn the legislation for exclusion of Sri Lankan Hindus from this bill as they have been facing serious human rights violations, violence and discrimination for years and many of them have fled to India to seek safety but now, with only the persecuted minorities of Pakistan, Bangladesh and Afghanistan being considered, the Tamil Hindus in Sri Lanka remain in the dark.

The same goes for the long-suffering Rohingya of Myanmar, a Muslim-majority ethnic minority in their home nation which endlessly deprives them of their rights, going as far as excluding them from their nation’s census.

Arguments favoring CAA by eminent personalities:

According to an IANS-CVoter poll, about 62.1% of the citizens of India support the CAA while 36.8% don’t. This data excludes Assam which had a separate poll conducted according to which 31% are in favour of the act and approximately 68.1% are against it.

The results of this poll makes it clear that a huge chunk of the nation’s citizens form the supporters of the act as compared to the smaller chunk of those against it. The protests, media coverage and social media make it seem the other way around, however, the poll gives the true picture, which then again can be questioned for how truthful it is indeed.

Amongst this community of supporters are some very notable personalities with immense knowledge and experience. A group of around 1100 research scholars and pioneers in academics have come forward with a signed statement of support to the controversial bill.

They’ve touched the facets of the bill which came into light for being problematic and explained how they are far from that. In the statement of support they accolade the government for securing the forgotten minorities and upholding the civilizational ethos of India” and “providing a haven for those fleeing religious persecution”.

They bring to notice that this feat, which had earlier tried to be achieved by other parties through failed attempts such as the Congress-led Liaquat-Nehru Pact of 1950, could finally now be fulfilled. The statement went on to convey that the Act in no way stops or exempts any members of a particular community, here Muslims, from accessing citizenship.

They could still acquire citizenship through any of the other prescribed methods of acquisition of citizenship in the Act. It has not, in any way, changed the mandates for becoming a citizen but rather provided a special expedited redress, under special circumstances, for minorities fleeing religious persecution from the said nations.

This group of scholars includes some well-known personalities such as Journalist and MP Swapan Dasgupta, Chairman of IIM Shillong and Industrialist Shishir Bajoria, Vice Chancellor of Nalanda University Sunaina Singh, Senior Fellow, Institute of Peace and Conflict Studies and journalist Kanchan Gupta, and J Sai Deepak, Advocate, Supreme Court.

Similar law in other countries:

Pew Research Centre conducted a survey on religion and its play and power in different nations. The survey brought to light the substantial influence religion has over various nations, either clearly by having an official state religion (43 nations) or by other means such as preferential treatment of certain religious communities over others by giving them an advantage through tax status, ownership or real estate (40 nations).

Russia belongs to the latter group of nations. It recognizes Christianity, Islam, Judaism and Buddhism as the country’s “traditional” religions, yet emphasizes the “special contribution” of Russian Orthodox Christianity to Russian history.

Members belonging to the recognized religions shared the following benefits: Students choosing to take a religious education course may choose between courses on the four traditional religions or a general course on world religions, and a government program funding military chaplains is restricted to chaplains of these four religions.

Yet, the government passively favours the Russian Orthodox Church particularly. For example, the State provided the Church patriarch with security guards and access to official vehicles, and an investigation found that major presidential grants given to organizations controlled by or associated with it provide more proof for the allegation.

Though this is not in every way the same to the CAA of India, it is in a way quite similar as both of them do not affiliate themselves with a particular religion but passively favour one over the other, there Christianity and here the others over Islam.

Conclusion:

The nation has been divided into groups, one favouring the Citizenship Amendment Act, the other dissenting it for its supposed discriminatory nature and yet another group which is still lost amidst the chaos.

The only probable solution here being informing the nation’s people of what the Act and its intricacies are and how it will affect each person, after that it is ultimately upto the people and our honourable Supreme Court would soon be giving its stance and most probably handling the situation in such a manner that peace prevails. Till then, we citizens must remain informed.

Author: Aastha Mittal from National Law University, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.

Bail jurisprudence in India

Reading time: 6-8 minutes.

A country’s criminal law system can be ideal when it strikes a balance between protecting the rights of individuals and rights of public at large. There are many practices intertwined in the practice of the criminal jurisprudence with the objective of maintaining law and order in the society. The provision of Bail is one such practice which has earned more criticism than appraisals in the recent past.

Recently,  The Supreme Court Bench consisting of Justices R. Banumathi, S. Bopanna and H. Roya has granted Mr. Chidambaram, an ex -Minister bail in the INX Media Case. The case revolves around the grant of the FIPB (Foreign Investment Promotion Board) clearance to the INX Media Group in 2007. Justice Bopanna remarked that “Bail is rule, refusal is exception.”

This is the rule which most of the courts follow in deciding whether to grant bail or not because when bail is refused, a man is deprived of his personal liberty, which is of too precious a value under our constitutional system, recognized by Articles 19, 21 and 22.

What is Bail?

According to Black’s Law Dictionary, Bail is defined as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.”

A precise definition of bail was provided by the Supreme Court in Sunil Tulchand Shah v. Union of India in which it was held that “Bail is a security obtained from a person arrested regarding an offence for the purpose of securing his presence during the course of trial.”

In the case of Superintendent and Remembrance of Legal Affairs vs. Amiya Kumar Roy Chowdary, the Court held that the law of bails, “has to be dovetail two conflicting demands, namely, on one hand, the requirements of society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty.”

Historical development

The concept and usage of bail can be dated back to 339 BC. The system of bail was introduced with the practice of a concept known as circuit courts in Britain during medieval times. In India, the provision of bail is governed by the Code of Criminal Procedure, 1973, specifically, Sections 436 to 450. 

It specifies the offences for which bail can and cannot be granted which depends on the intensity and severity of the offence. It is the discretion of the court to decide the bail amount on the basis of the offence and the economic status of the person. There are mainly three types of bail in India; Regular, Interim and Anticipatory Bail.

Grounds on which bail can denied

In many cases, the considerations and grounds for granting and refusal of bail have been interpreted by courts. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vetal has stated few factors to be taken into consideration, before granting bail, namely:

  1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
  2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
  3.  Prima facie satisfaction of the Court in support of the charge.

Courts must deny bail only under three conditions- One, the person charged with the crime is likely to flee. Two, the accused is likely to tamper with evidence or influence witnesses. Three, the person is likely to repeat the same crime if granted bail. These grounds should be considered by courts by evaluating the factors as provided in the S.P Vital case.

Problems with Indian Bail System

In the famous case of Narasimhulu v. Public Prosecutor, Justice Krishna Iyer remarked that “The subject of bail belongs to the blurred are of the criminal justice system and largely hinges on the hunch on the bench, otherwise called judicial discretion.”

It is imperative that discretion must be exercised with caution and care and must be applied by balancing the interests of both justice and personal liberty of individuals. It must not be arbitrary, vague and fanciful, but legal and regular.

The recent trend of arbitrariness in exercising discretion has been a serious roadblock in achieving the ends of justice. In cases involving high profile individuals, bail is granted without considering the enormity of the case.

These individuals walk free when the people affected by them reel in injustice. It has become a norm than an aberration in most jurisdictions including India that the powerful, rich and influential obtain bail promptly and with ease, whereas the mass/ common / the poor languishes in jails.

Another major problem in the bail system is the amount of bail bonds set by the court. The economic and financial situation of a person and must be considered before courts reach a decision regarding the amount of bail.

From the analysis of data and statistics in the Law Commission Report, it can be observed that a majority of under trial prisoners i.e, 70.6% are illiterate or semi illiterate which is an indicator of poor economic background.

They are trapped in the vicious cycle of poverty and illiteracy coupled with a continuous violation of their right to personal liberty and dignity. Accused person’s economic status appears to have become the decisive factor for granting pre-trial release.

Suggestions and conclusions

The provision of bail plays an important role in balancing the interests sought to be protected under the criminal law jurisprudence. Courts must take precaution in ensuring that discretion does not defeat its own purpose. Protection of liberty and dignity of individuals is of utmost importance and courts must either grant or refuse bail by keeping in mind the values of equality, good conscience and justice. The bail jurisprudence needs to be revamped with stronger and effective reforms.

A system of checks and balances, in the form of a competent authority, has to brought into force targeting at the arbitrary exercise of discretion by courts. Bail procedures for the economically marginalized section of the society must be carried without much delay and formalities which would otherwise result in a flagrant violation of their Fundamental rights.

Author: Tressa Maria Joseph from SLS, Hyderabad.

Editor: Tamanna Gupta from RGNUL, Patiala.

Sabarimala issue: The question of law involved

Reading time: 6-8 minutes.

On 20 November 2019, the Supreme Court of India ordered the Kerala government to come up with a separate law to govern and administer the Sabarimala Sree Ayyappa Swami Temple. The Kerala government is to make the law by the third week of January 2020.

The temple is presently being governed by the Travancore-Cochin Religious Institutions Act of 1950 which governs over 100 other temples. The three-judge Bench led by Justice N.V. Ramana reminded the promise which the Kerala government had made in August 2019, regarding passing separate legislation with respect to the administration of the Sabarimala Temple.

The bench further substantiated their decision by stating that a temple which receives lakhs of pilgrims annually must have separate legislation. The matter has hence been adjourned to the third week of January 2020.

Background of the issue in brief:

Although it is widely claimed that a ban on entry of women has always existed, it was not until 1972 that women were legally banned from entering the temple. Successive to this decision, the Kerala High Court in 1991 upheld the ban of women between the age of 10 and 50 after a Public Interest Litigation was put across to the High Court.

“The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial”, were the words of the High Court in the 1991 judgment.

The Indian Young Lawyers Association in 2006 filed a petition in the Supreme Court seeking the entry of women between the age of 10 and 50 to the temple. The matter was referred to a three-judge bench two years later in 2008. There was a lot of delay in this judgment and eventually in 2017, the matter was referred to a constitution bench.

After several hearings, in September 2018, the five-judge bench allowed the entry of women of all ages to the Sabarimala temple. Although this order was passed, a large number of devotees and followers camped outside the temple to prevent women of all ages from entering the temple.

In February 2019, the 2018 order was reserved and was to await the final judgment of the court. As mentioned above, on November 20, 2019, the court adjourned the matter to the third week of January 2020.

The issue: Right to equality v. Religious belief/faith

The Constitution of India guarantees the right to equality under article 14 and at the same time guarantees the right to religion which essentially means that one’s religious beliefs and faiths are protected by the constitution with reasonable restrictions.

Ever since the constituent assembly debates, there has been a conflict between these two rights; for instance, the triple Talaq judgment, which also ruled in favor of the victims of an outdated religious practice. As seen in this judgment the court has termed such a restriction “derogatory to women” and “discriminatory”.

In the present scenario, the two parties fighting the case base their arguments on these two fundamental rights respectively. Four out of the five judges ruled in favor of the right to equality, claiming that such a restriction may be equated to a form of untouchability, which was abolished in India decades ago, hence suggesting unequal treatment.

Indu Malhotra, who was the only judge who dissented to the majoritarian opinion, felt that the right to religion was being violated and that such a restriction is protected under article 25 of the constitution. She believed that it is not a matter of equality or about logic or rationale but simply a matter of liberty of faith, belief, and worship.

Arguments of both sides

Respondents:

The reasoning behind restricting women between the age of 10 and 50 is because most women between these two ages are menstruating, which according to the defendants violates the right to privacy of the idol under article 21, as the deity, Lord Ayyapan, does not wish to visit women between those two ages.

The deity apparently has chosen the life of celibacy and being worshipped by menstruating women may distract him from his path of celibacy. Arguments regarding menstruation being impure and that such a restriction would only preserve the sanctity were also made. 

It was also argued that there are temples that restrict the entry of men too like the Brahma Temple in Pushkar. Other arguments made revolved around the practice is a 500-year-old tradition and must hence be continued.

Petitioners:

The petitioners claimed that there are many other temples of this particular deity in which no woman is denied entry, which thus makes the respondent’s argument inconsistent and unusual. The argument with regards to purity is a direct violation of the right to equality and there is no valid record which proves that women of the said age are impure.

The physiological process of menstruation hence cannot be grounds for impurity thus making the argument gender discriminatory. The petitioners also made claims that there are multiple reports of women entering the temple until the 1980s in pursuance of invalidating the argument of the tradition lasting for over 5 centuries.

Public reaction:

Although most social media users around the country welcomed the Supreme Court judgment with open arms, the state of Kerala witnessed some unrest until the order was reserved in February 2019. Multiple politically fuelled hartals were conducted between October and February as a result of which a lot of arrests were made and Section 144 of the CrPC had to be imposed in several districts during the pilgrimage season of November 2018.

Protests were held and there main objective was to achieve a review petition on the September 2018 order of the Supreme Court. During one of the hartals in January 2019, there were many cases of violence and arson. Fed up of the number of hartals, many organizations in Kerala decided to observe 2019 as an anti-Hartal year and to defy all hartals called upon in the future.

As a result of the hartals and protests over a 100 buses of the Kerela Road Transport Corporation were damaged. A large portion of the politically incited public went against the government for supporting the decision and damaged offices, libraries and businesses owned by members of the ruling party.

Conclusion: Probable way forward

The Sabarimala issue has turned into a highly political conflict rather than just being a disagreement between religion and equality. Acts of violence and endangerment of women attempting to enter the temple have virtually driven the Supreme Court to reserve its order.

It has now been left in the hands of the ruling government of the state of Kerala to make a separate law to govern the Sabarimala temple. It is probably a wise decision to lay some hard and fast rules and regulation on entry into the temple and the consequences of disobedience of the new law.

–This article is brought to you in collaboration with Aditya Sekhar from Symbiosis Law School, Hyderabad.

Explained: The second judges case

Supreme Court Advocate-on-Record Association v. Union of India, popularly known as Second Judges case, has garnered headlines recently, after a plea to review its order filed by the National Lawyers’ Campaign for Judicial Transparency & Reforms through its secretary, A.C. Philip, & advocate Mathew Nedumpara, was dismissed by a 9 judge bench of the Supreme Court consisting of Chief Justice of India Ranjan Gogoi, his prospective successor, Justice S.A. Bobde, amongst others.

The said bench contemplated upon the petition in chambers and dismissed it on the grounds of an inordinate delay of more than 9000 days an also based on the merits of the case.

Background of the issue:

India’s judicial system, consisting of the Supreme court at the top and other state high courts: plays a crucial role in ensuring transparency in the contemporary system. The rise of several factors has impacted the working of the judiciary. These changes have created a breeding ground for conflicts between the two organs of the government- the executive and judiciary.

It can primarily be stated that the Supreme Court, which tops the hierarchy of the judicial system of India, does not ordinarily sit en banc. Unfortunately, even in the contemporary scenario, there is a dearth of knowledge on how judges are appointed and elevated in the judicial system of India.

The mode of appointment of judges in itself has been riddled with controversies. It has been subjected to public scrutiny since the early 1960s. However, the glare upon the issue increased when the judges themselves evolved the methodology to appoint and promote themselves.

Today judges are appointed and elevated following the methodology evolved through the judicial pronouncements in the Judges’ cases: a series of judgments that shaped the present collegium system. The power struggles between the executive and judiciary now revolve around the domain of separation of powers and checks and balances.

Salient features of the judgment:

Change was brought about in the selection of judges of the courts after the provisions were subjected to the rigors of judicial interpretation in three judgments of the Supreme Court: S.P. Gupta v. Union of India (1981) also known as the Judges transfer case, Supreme Court Advocates-on Record Association v. Union of India (1993), also known as second judges case, and Re: Special Reference (1998), the third judges case.

The interpretation of the word ‘consultation’ appearing in Article 124 and Article 217 of the Indian constitution was the subject matter for the First Judges case. In the Second Judges’ case, A collegium was created by the majority, which comprised of the chief justice and two senior-most judges for selecting new appointees subsequently enlarged in the Third Judges’ case.

Changes were also made in the methods of appointment wherein a judicial collegium was created amongst the judges for recommendations and elevation of judges. The bench laid down that the Chief Justice of India was mandatorily required to consult, seek, and concur with the choice of two senior-most judges before sending a recommendation to the President of India. The court also expanded the scope of the word “Consultation” by comparing it with the term “Concurrence.”  

While the Collegium system for judicial appointments amongst the judges was not described within the original framework of the Constitution(and no attempt to amend the provisions to include this provision was made), the criticism on this pronouncement was limited because it did not leave judicial appointments in the hand of one individual.

A COMPARATIVE ANALYSIS

  Collegium NJAC
Definition   Under the collegium system, the Chief Justice of India and two senior-most judges make judicial appointments to the Supreme Court and High Courts of India. This system was promulgated after the judgments in the Second and Third Judges case. National Judicial Appointment Commission (NJAC) consists of representatives of both the government and the judiciary.
Panel Chief Justice of India assisted by two or four senior-most judges of the court make the appointments. A body comprising six members — Chief Justice of India, two seniormost judges of the Supreme Court, Union minister of law & justice, and two eminent persons nominated by CJI or the prime minister or the leader of the Opposition in the Lok Sabha.
Merit The Constitution has laid down some basic qualifications for the appointment of judges, which is common to both the systems. Additional Criteria-(Informal Criteria of Collegium) 1.Age – A prospective appointee should be at least 55 years of age in order to be considered eligible to be appointed to Supreme Court. 2.Seniority- The prospective appointee should be a Senior State Court judge or Chief Justice of a State Court. 3. Diversity- Appointment should reflect geographic, ethnic, and gender diversity. The basic qualifications prescribed by the constitution in case of appointment of a judge to SC are: He/She must be an Indian Citizen; five years experience as a judge of HC/ 10 years standing as an HC Advocate/ distinguished jurist in the opinion of the President.

Criticism of the collegium system:

Collegium system has been criticized on several grounds-

  • The assumption that the judges alone are competent enough to ensure independence in the judiciary and to prevent interference in its functioning.
  • Elevation under the collegium system is based on personal impressions made on the judges of the court rather than skills and ability.
  • Judges are often appointed to suit the needs and requirements of the ruling party, and this creates an imagery of a barter practiced between the executive and judicially, defeating the very objective of the collegium system
  • Executive interference and nepotism are prevalent in this method of appointment of judges.
  • The subjective bias of the judges plays a dominant role in the elevation of judges. The collegium system has also been criticized on the grounds of lacking transparency as no reasoning is stated for any appointment and rejection.
  • There have been several instances where the principle of seniority has also been bypassed to elevate favored judges.

Conclusion: Road ahead

The criticisms against the collegium system cast a shadow of doubt on the overall efficiency of the system. It is imperative that this system cannot be continued in the interests of transparency, accountability, and smooth functioning of the judiciary.

Several factions of the judicial fraternity have been lobbying for the National Judicial Appointments Commission (NJAC) Act for the appointment and elevation of judges. 99th Constitutional Amendment Act 2014, which aimed at setting up the National Judicial Appointment Commission (NJAC), was dismissed by the judges in the fourth judges’ case.

The amendment was struck down by the Supreme Court for being unconstitutional on 16 October 2015, with a 4:1 majority. In the present scenario, when the system is in shambles due to the wrongs of the collegium system, NJAC needs to be promulgated, and it will serve as a messiah for the Indian Judicial System

–This article is brought to you in collaboration with Tamanna Gupta from Rajiv Gandhi National University of Law, Patiala.

Marital Rape: An unheeded issue

Reading time: 7-8 minutes.

Does a woman or man lose their degree of sexual autonomy after marriage? Hon’ble Justice Dhananjaya Y. Chandrachud answered this debatable question in the negative. 

Respect is one of the foundation stones upon which the institution of marriage is built. The wedlock evokes an implied value of respecting the choices, individuality, and decisions of the spouse.

The husband and wife must ensure that the way they accept each other’s approval, they must also agree with their disagreement. And understand that a ‘NO’ is a clear and strong denial.

How pervasive is rape?

Rape is usually understood as unwanted, coerced or non-consensual sexual intercourse. Almost every day, women in our country fall prey to the insatiable desire for sex of men. Despite several protections, they are subjected to offences like domestic violence and sexual exploitation. Among various such problems, lies the unheeded issue of ‘marital rape’.

In ancient India, marital rape was not even accepted as an issue disdaining women. The primary reason behind such thinking is the patriarchal and male-dominated framework of Indian society. The portrayal of a woman as merely a property and a chattel of her husband is consistent since time immemorial.

Having sex with the wife is considered to be a manifested right of husband after entering into marital relations, which the former cannot retract. Even today, marriage is construed as an irrevocable and perpetual consent to sex.

It is visualised as a license to the men to go to any dangerous extent and physically exploit their wives. Many concur to the notion that a wife is duty bound to surrender to the desire and sexual whims of her husband without any complain.

Disappointingly, a married woman above the age of majority finds nothing to her rescue. In other words, law has permitted the husband to rape her wife without any intrusion by the State. It would be no wrong if it is said that marriage assigns all the rights of a wife to her husband and renders her helpless.

According to the dictum of Chief Justice Sir Matthew Hale, a husband cannot be convicted of raping his own wife on the sole reasoning that she gives up her body to the husband at the time of marriage. This principle was considered as an underlying claim for the exemption in case of marital rape.

It must be noted that the rape by husband is more brutal than rape by a stranger and its ignorance is a serious breach of a person’s fundamental right to life and personal liberty.

It’s vital that our legislators pay instant attention to the realities of sexual abuse. The protection of institution of marriage cannot be a valid defence to contravene the fundamental right of a woman to live with dignity and bodily integrity.

What is the provision in IPC regarding marital rape?

The sixth description given to the definition of rape under Section 375 of Indian Penal Code clearly states that the consent of a girl below the age of 18 years is immaterial and the sexual intercourse with her comes under the umbrella of rape.

Prior to the decision of Supreme Court in Independent Thoughts vs Union of India , exception 2 to the same section stated that “the sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.” But in this case, the Apex Court of India, in order to harmonise Indian Penal Code, Protection of Children from Sexual Offences Act (POCSO), Juvenile Justice (Care and Protection of Children) Act and Protection of Women from Domestic Violence Act, disapproved the distinction between an unmarried and a married girl.

The judges were of the view that a girl child remains a child irrespective of her marital status .When the consenting age has been fixed to 18 years; being married carves out no justification for the exception. The Honourable Court thus held that Exception 2 to Section 375 must now be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape .”

Even as the decision in the aforementioned case harmonised the laws safeguarding the rights of minor girls, the question to protect married women above the age of 18 against sexual exploitation, remains wide open.

Several attempts have been made by the Law Commission of India and various committees in this direction, but all in vain. As the legislators of our country, are only concerned about the institution of marriage and least attentive to the brutal circumstances of marital rape which a married woman goes through.

What are the constitutional safeguards against marital rape?

Although, marital rape is not criminalized in India, the Constitution of India provides protection against the flaws that obstruct women empowerment. The Indian Constitution grants us an all-encompassing right as Article 21.

The judicial interpretation of years has expanded the scope of the article and right to live with human dignity is now within the purview of this provision. The heinous act of rape in marriages evidently contravenes the right to live with dignity and to this effect, it can be said that the exception provided under Section 375 of the Indian Penal Code, 1860 stands unwarranted.

Also, the right to privacy has aroused as a recent judicial development where the Apex Court observed that no individual can be subjected to intrusion to their privacy and personal space.

In the celebrated case of Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court with the ratio of 9:0 upheld the right to privacy as an inherent and integral part of Article 21. When interpreted in the context of marital rape, a wife is entitled to right to sexual privacy. Hence, no one can violate her right and invade into her privacy against her wish.

Article 14 of Indian Constitution guarantees the fundamental right where under “the State shall not deny any person equality before the law or equal protection of the laws within the territory of India.” This article, therefore acts as a custodian against discrimination by the State.

But the exception under Section 375 of the Indian Penal Code discriminates with a married woman and denies her the protection from rape. Thus, it is submitted that the exception is not a reasonable classification and therefore, violates Article 14 of the Constitution.

Similarly, Article 15(1) says that “the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, and place of birth or any of them.” However, the exception to Section 375 assumes non-withdrawable consent of married women to sex.

The assumption strengthens several gender stereotypes which subordinates women in the society and hence, is violative of Article 15 of the Constitution. The aforesaid drawbacks in the legal system of the country must be eradicated to ensure equal justice to married woman against mental and physical abuse faced by them.

What is the constructive stand of judiciary?

While the Legislature is in the process of finding a possible solution to this widespread problem, the Courts are playing a proactive role in ensuring a balance between the criminality of the act and subsequent misuse of the laws saving married women from sexual assault.

The Hon’ble Supreme Court in the case of Suchita Srivastava v. Chandigarh Administration explicitly stated, “A woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ under Article 21 and that this choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”

At various instances, the Apex Court has taken cognizance of the views eununciated by Justice (Retd.) JS Verma Committee, where it was concluded that the rapist remains the same regardless of his relation with the victim.

Moreover, in a judgement that garnered a lot of appreciation, Honourable Mr. Justice J.B. Pardiwala of Gujarat HC expressed concern on the limitations of the laws. His take on the criminalization was clear as he advocated for the outlawing of the non-consensual sex in marriages.

And, preached that inhumane treatment with women is absolutely intolerable. Evidently, the Indian Courts affirm that women are no properties of their spouse and are rightfully entitled to equivalent treatment socially as well as legally.

In conclusion…

The institution of marriage is definitely a bond of trust, respect ,and love. Procreation can be the primary purpose of marriage but the use of violence is absolutely unacceptable. The wife’s individuality and choices must be honoured and the line drawn between rapes within marriages and outside must be erased at earliest.

In India, long drawn debate of marital rape has ironically, not received much of deserved attention from the lawmakers. The Parliamentarians are of the view that marital rape could not be criminalized in our country as marriages are sacrosanct. And change or reformation in this system can destroy the sacred institution of marriage.

Based on the absurd logic that criminalizing the act will attack the sanctity of marriage and it might be used as a weapon by wife to attack the innocent husband, the State has been ignoring and violating the basic human rights of married women. This visibly indicates the careless and non-intervening approach of Legislature in family sphere.

But the point they usually tend to forget is that the culture and tradition of India worships women as deities. They must soon realise that if the paramountcy of the Constitution is to be maintained, the honor and worth of womenfolk must be vindicated. If this celebrated heritage is to be reinstated, women must find a place of safety and reverence in the society.

Nevertheless, the pragmatic viewpoint of Indian Judiciary in sundry cases is admired. The observations made by the Apex Court of India in support of the women can be perceived as the silver lining amidst, dark clouds of cruelty and discrimination.

-This article is brought to you in collaboration with Vaidehi Maharishi from S.S. Jain Subodh Law College, Jaipur.

Explained: Surrogacy (Regulation) Bill, 2019

Reading time: 4-5 minutes.

Since time immemorial, the human race and its environment has changed, developed and advanced with time but one thing still remains constant that is the urge of this race to procreate. And why not this basic urge is necessary for the survival of the human species as well.

Humans are the only species that have a tendency to maintain a life-long emotional bond with their children and thus this urge of procreation is not just a physical one but rather an emotional one as well. And although mostly, people manage to successfully procreate, at times due to certain situations it is not possible for them to give birth to a new life. This is when the idea of surrogacy comes into picture.

Surrogacy, provides people who otherwise cannot procreate with an option to have a child. Surrogacy is a type of arrangement where a surrogate mother agrees to bear, carry and deliver a child for another couple, who will be called as the new born child’s parents after his or her birth. Surrogacy is basically a way out for couples, who either find it medically impossible to procreate or where there is a risk to mother’s health or in cases of same sex couples. 

Union Cabinet gave its nod to the Surrogacy Regulation Bill 2019, the bill that aims to prohibit commercial surrogacy was introduced in the Lok Sabha on the 15th of July. Commercial surrogacy a practice also known as rent a womb was legalized in India in the year 2002, in order to promote medical tourism and soon India became the hub of surrogacy driven by factors like low cost and the absence of a strict legislation.

Commercial surrogacy became a booming business in the country. According to a 2012 study by the Confederation of Indian Industry the size of India surrogate motherhood industry was 2 billion dollars a year. A study backed by the United Nations also conducted in the year 2012 estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3,000 fertility clinics across the country but the unregulated business led to concerns over the rampant exploitation of surrogate mothers as well as their children prompting the need for a legislation to regulate surrogacy in the country

What is the meaning of surrogacy and what is commercial surrogacy?

Surrogacy is a type of arrangement where a surrogate mother agrees to bear, carry and deliver a child for another couple, who will be called as the new born child’s parents after his or her birth. Surrogacy is basically a way out for couples, who either find it medically impossible to procreate or where there is a risk to mother’s health or in cases of same sex couples. 

Surrogacy contracts are also of two types: Commercial surrogacy and Altruistic surrogacy. It is distinguished depending on whether the surrogate mother receives payment for her pregnancy or not. Commercial surrogacy is legal in countries like Ukraine and California while it is illegal in England, also, many states of the United States and in Australia they only recognize altruistic surrogacy.

Germany, Norway and Italy do not even recognize surrogacy as a contract. Though India used to recognize commercial surrogacy and due to this it was one of the favorite destinations for fertility tourists, but after the passing of the Surrogacy (Regulation) bill, 2019, commercial surrogacy is completely banned in India as well, and India currently only recognizes altruistic surrogacy.

What are the disadvantages of commercial surrogacy?

There are certain major disadvantages in exercising commercial surrogacy. It is important to understand that the cons of commercial surrogacy are not just one but can be distinguished under several head:

  • Moral/Ethical Issues
  • Social Issues
  • Economical Issues
  • Emotional/Psychological Issues
  • Health Issues: Mother and Child
  • Legal Issues

There are also certain important reasons why a new law regarding this context was needed:

  • Commoditization of child
  • Degrades motherhood
  • Reproductive Labor: An unethical practice

How does the new law seek to control surrogacy?

The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple. Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.

The bill also lays down certain other guidelines regarding the aspect of surrogacy like its purposes, the eligibility criteria for intending couples, eligibility criteria for surrogate mothers, what are the appropriate authorities to take and decision or step in this regard, guidelines for registration of surrogacy clinics, constitution of national and state surrogacy boards, guidelines in reference to parentage and abortion of surrogate child, offences and penalties.

By putting down guidelines for almost all the aspects of surrogacy this new law seems to take a strong hold and control over the concept of surrogacy.

What are the challenges in its implementation?

There are certain criticisms that are there which can be considered as a reason for the difficulty in the implementation of this bill. These challenges or criticisms of the new bill are:

  • It prevents same sex couples and individuals from having surrogate children and is violative of Article 14 of the Indian Constitution
  • It violates the right to privacy of couples and surrogate mothers.
  • The eligibility condition under the Bill amounts to unreasonable restriction on the reproductive rights of a married Indian couple, violative of Article 21 of the constitution.
  • The Bill raises questions over the reproductive rights of a woman.
  • Infertility cannot be compulsory to undertake surrogacy. This violates the Freedom of choice available to citizens

In conclusion…

Surrogacy is one of the best means of having baby. It is one of the most promising treatments for infertility. It can actually solve out a lot of problems and difficulties that an infertile couple faces not only in physical terms but in mental and emotional terms as well.

And even though, surrogacy has faced its fair share of oppositions and criticisms time and again, it is necessary to note that this idea or concept of having a child is not new in today’s world but rather has existed since time immemorial.

Although it definitely requires a lot of review and reconstruction in terms of the legal provisions that are to govern it, so that the rights of all the parties involved in such a procedure is protected and this beneficial deed for humankind doesn’t turn out to be a way of exploitation in any case.

And even though India has come up with the new Surrogacy Regulation Bill, 2019, there is still a lack of internationally recognized laws creates difficulties for aspiring parents. In cases where intended parents go to surrogacy friendly countries, it can take a long time to bring a surrogate baby back to their home country.

This is due to different surrogacy laws in the home country and the country where the baby is born. Many experts argue that an international agreement similar to the Hague adoption convention could provide consistency across countries thereby making the process more streamlined.

This article is brought to you in collaboration with Aprajita Jha from National Law University and Judicial Academy, Assam.

Explained: National Register of Citizens in Assam

Reading time: 4-5 minutes.

The history of Assam can be called out as a tragic account of hard struggle of the indigenous people of Assam who have been trying their best to conserve and preserve their own identity and are still facing the fear of being reduced to only a minority in their own homeland due to the vast amount of influx from the people outside. This illegal immigration from Bangladesh have been a major problem in the state of Assam since 20th century.

The National Register of citizens or as is commonly called the NRC is a list of such Indian citizens in Assam. Assam, today is the only state that has an NRC. The NRC was first prepared in 1951 following the census. At that time, it had recorded 80 lakh citizens in the state. Since then this debate of weeding out illegal immigrants from the state has been heated and has become a contentious issue.

A PIL was filed in the Supreme Court seeking the removal of “illegal voters” from the electoral rolls of Assam and the preparation of the NRC as required under the Citizenship Act, 1955 and its rules. A six-year agitation demanding identification and deportation of illegal immigrants was launched by the All Assam Students’ Union (AASU) in 1979. It culminated with the signing of the Assam Accord on August 15, 1985.

What is the legal sanctity of NRC under the Indian Constitution?

There is no provision particularly dealing with this idea of NRC. But it is important here to note that whether or not a person’s name is included in the NRC or not he cannot be deprived of some of the basic fundamental rights that have been bestowed by the Indian Constitution to every person.

Article 14 guarantees the right to equality to all persons in India. It states that “[t]he State shall not deny to any person equality before law and equal protections of laws within the territory of India.” Article 20 which relates to protection in respect of conviction for offences is another provision which is available to all persons.

Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 21A the right to education is another provision available to all, irrespective of whether they are a citizen or not. Article 22 is also available to ‘all persons’ as it protects against arrest and detention in certain cases. The right against exploitation Article 23 and 24 is also applicable to all persons. The right to freedom of religion does not discriminate between citizens and non-citizens either.

Article 32 which establishes the Supreme Court of India as a Court of First Instance regarding the enforcement of Fundamental Rights is also available to non-citizens. Thus, even though NRC per se doesn’t derive its sanctity from the Indian Constitution but it also cannot curtail certain rights of people who are residing in Assam even though if they aren’t citizens of India.

Is NRC in violation of principles of International Law?

The move of NRC however good or bad it maybe, is still considered to be violative of some basic principles of International Law. The central government’s move to establish the NRC and deport 4 million residents of Assam also leaves India vulnerable to the charge of ethnic cleansing. There are millions of stateless people in the world and India has now added even millions more to them.

Also, that these people have lived in Assam for decades and are entirely integrated into the local community makes the Indian case stand out on the international stage for its sheer inhumanity.

Article 15 of the Universal Declaration of Human Rights affirms that everyone has a right to a nationality. The UN convention on the Reduction of Statelessness, 1961, creates an international obligation to prevent statelessness and prohibits the withdrawal of nationality in situations where persons would be left stateless.

What are the implications of NRC for the people of Assam?

The work of updating and listing out of NRC in Assam has created a political storm in the state. Many people had to spend their life’s earning in legal fees, in the long process of submitting documents and challenging the various declarations of their non-citizenship with the courts.

From non-transparent “family tree verification” process, to the somewhat arbitrary rejection of the gram panchayat certificates (affecting mostly women), the process has been riddled with legal inconsistencies and errors. The family tree verification process has resulted in numerous instances of parents being on the draft list but children being left out.

The number of people affected by the rejection of panchayat residency certificates is more than 45 lakhs. The fate of lakhs of people relying on these documents remains uncertain as each person will now have to prove his or her lineage afresh.  Preparing the NRC within a deadline seemed more important than ensuring legal clarity over the claims of citizenship which should not have been the case.

What are the benefits of NRC?

There are certain limited yet important benefits of NRC. These benefits being:

  • It will lead to identification of illegal immigrants
  • Those identified illegal immigrants will be barred from voting in the Indian elections
  • With such an action the Indian government will making it stance clear for the world to know that it doesn’t support illegal immigration in any way.

 In conclusion…

Non-intervention in the migration situation in Assam is not an ideal policy stance, as it holds back not only the state but the entire region. The uncertainty of the situation hinders economic development and peace in the region which are central to achieving growth. The NRC exercise, in many ways is a necessary exercise as it creates an opportunity to reset the rules of migration.

 It not only provides an opportunity to tailor governance solutions which are more suited to the needs of an ethnically diverse state such as Assam, but also creates space for a better migration management system between Bangladesh and India given that deportation or statelessness seem unviable policy alternatives.

 Further, the solutions Indian policy makers devise for the issue of immigration can serve as a beacon for the region and can provide the necessary impetus to India’s developmental aspirations in the region. But on the other hand, it is also important to note that the process of NRC is conducted in a fair manner and not arbitrarily or carelessly because India’s approach to citizenship under this scenario would be scrutinized by the whole world.

This article is brought to you in collaboration with Aprajita Jha from National Law University and Judicial Academy, Assam.

The Unnao Story: A Legal Viewpoint

Reading time: 7-8 minutes.

Strongly criticizing the handling of the Unnao rape case and expressing displeasure on the road accident which took place last Sunday (28/07/2019) that left the 19-year old victim and her lawyer critically injured and her two aunts dead, the Supreme Court on Thursday (01/08/2019) transferred the cases related to the matter from Uttar Pradesh to Delhi. The order also provided for a compensation of Rs. 25 lakhs from the Uttar Pradesh Government and CRPF security cover for her, her family and her lawyer.

The Supreme Court via its order appointed Dharmesh Sharma, District Judge, Tiz Hazari Courts, Delhi to conduct the trial in the four cases related to Unnao rape. The bench led by the Chief Justice of India, Ranjan Gogoi transferred the cases from the CBI Court, Lucknow to Delhi by initiating suo moto proceedings based on the letter sent by the family of the victim seeking protection from intimation by accused. The mother of the victim had also approached the Apex Court last April seeking transfer of trial outside Uttar Pradesh giving the same reason, i.e., intimation by accused.

First case was for the rape allegedly committed by BJP MLA Kuldeep Singh Sengar. Second case was for the offence of gang rape allegedly committed by the legislator’s supporters and friends a week after the crime committed by him. Third case has been registered against the father of the victim under the Arms Act. Her father died while in the custody and the fourth case has been registered with respect to this by her mother. All of these cases have to be dealt within 45 days, the Supreme Court directed.

Keeping in mind that the recent road accident occurred in Uttar Pradesh and that it would be difficult to prepare a report if the case is transferred to Delhi, the Supreme Court has allowed CBI to conduct investigation with respect to the truck collision and submit the report of the same within 14 days.

What is the background of this case?

The Unnao rape case involves the gangrape of a 17-year-old girl allegedly by the BJP MLA Kuldeep Singh Sengar, his brother Atul Singh and their accomplices on 4 June 2017. A case was registered under Section 363 (punishment for kidnapping) and Section 366 (kidnapping, abducting or inducing woman to compel her marriage, etc) of the Indian Penal Code, 1860. However, the victim was allegedly not allowed to name the BJP MLA as the police refused to mention him by name.

Two chargesheets have been filed in the case so far. First one names the BJP MLA, Kuldeep Singh Sengar as the accused in the allege rape case of the 17 year old. The second one names him, his brother, three policemen and five other people for allegedly framing the Unnao survivor’s father.

The trial in the Unnao rape case did not move an inch even when there was invocation of POCSO and the main accused in the case was a legislator. The Protection of Children from Sexual Offences Act states that all the cases should ideally be dealt with within a year from the date of taking the cognizance. Also, the Supreme Court in an order in December 2017 said that all cases against MPs and MLAs must be decided within one year and it also laid down the establishment of special courts for the said purpose.

What exactly is POCSO?

POCSO or The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was established to protect the children against offences like sexual abuse, sexual harassment and pornography. It was formed to provide a child-friendly system for trial underneath which the perpetrators could be punished.

The Act defines a child as any person below eighteen years of age. It also makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. Protection of Children from Sexual Offences Act, 2012 received the President’s assent on June 19, 2012. It was notified in the Gazette of India on June 20, in the same year.

The Act defines different forms of sexual abuse which includes penetrative and non-penetrative assault. It also involves sexual harassment, pornography, etc. Under certain specific circumstances POCSO states a sexual assault is to be considered “aggravated if the abused child is mentally ill or when the abuse is committed by a member of the armed forces or security forces or a public servant or a person in a position of trust or authority of the child, like a family member, police officer, teacher, or doctor or a person-management or staff of a hospital — whether Government or private.”

How is POCSO different from Section 375 and 376 (provisions related to rape) of the Indian Penal Code, 1860:

1. Burden of Proof on the Accused: Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, unless the contrary is proved.

2. POCSO Act is gender-neutral law, wherein the law takes cognizance of sexual crimes committed against both girls and boys under the age of 18 years. IPC presumed that only females are the victim of sexual crimes.

3. POCSO Act ensures punishment for all perpetrators irrespective of age and gender. Unlike IPC which only punishes a male for an offence of rape, POCSO Act is gender neutral in nature.

4. Calibration of Offences: POCSO Act addresses a wide range of sexual offences which include anything from complete and partial penetration; non-penetrative sexual assault; stalking of a child; showing children pornography; using the child for pornography; exhibitionism etc. The law protects children from both physical and or non-physical contact forms of abuse unlike the Indian Penal Code.

5. Severer Punishment when Protectors are Perpetrators: POCSO Act provides for more severe punishment, when the sexual offence is committed by a person in a position of trust or authority such as police officer or a member of security forces or public servant, etc. (Sections 5 and 9).

What is the role of Supreme Court in this case?

A suo motu cognizance is a Latin term which means an action taken by a government agency, court or other central authority on their own apprehension. A court takes a suo motu cognizance of a legal matter when it receives information about violation of rights or breach of duty through media or through a third party’s notification by letter, telegram, or other means of communication.

It is seen that the Supreme Court sou moto initiated proceeding based on the letter written by the survivor’s family. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.

The Supreme Court also took suo motu cognizance and asked the Central Government to work with companies like Google, Yahoo, Facebook and WhatsApp to suggest list of keywords to block explicit videos that depict rape, gang rape and child pornography. An NGO named Prajwala wrote a letter to the Chief Justice of India in 2015 and sent a pen drive containing two videos. The letter asked the court to take appropriate measures against the culprits who were committing gang rape in a video. The Supreme Court converted the letter into a PIL.

The Indian courts have taken suo motu cognizance in the following instances:

1. Contempt of court:  Contempt of court means disobedience towards the court and ignorance to rules and regulations, code of conduct and ethics followed in a court. The court generally initiates a case for suo motu contempt against an officer who prevents delivery of justice or challenges the dignity of court.

2. Reopen old cases:  If some new and substantial evidence is discovered after a case is closed, the courts have the power to take suo motu action and reopen the case to try it again.

3. Order probe for a new case:  If any court is of the opinion that some injustice is being done to an aggrieved person or a section of people, the court can order probe at any level by any government authority, police department, the CBI, etc. The court may also take such action after receiving a letter from the affected section of people or on the basis of any news, documentary or media source.

Though the rights conferred by the constitution other than fundamental rights are also valid rights protected by the judiciary, in case of fundamental rights violations, the Supreme Court of India can be approached directly for ultimate justice per Article 32 of the Indian Constitution.

All people, irrespective of race, religion, caste or sex, have been given the right to petition directly the Supreme Court or the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so.

Poverty-stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as “public interest litigation”. In some cases, The Supreme Court has acted suo moto on their own on the basis of newspaper reports.

In conclusion…

It is evident from the recent events that the BJP MLA Kuldeep Singh Sengar (now expelled from the party) is one influential person, specially in his home town and the Supreme Court is well aware of this fact. After the transfer of the cases from Uttar Pradesh to Delhi, the SC also ordered the transfer of Mahesh Singh, the uncle of the rape victim and a key witness of the case to Tihar Jail from Raebareli Jail.

The crime, the audacity of the crime and the plight of the victim’s family has inspired people to explore the issue in question and the media channels, after the recent road accident have become hyperactive in portraying the BJP MLA as a criminal.

Now that the Supreme Court headed by the Chief Justice of India himself has interfered in the matter, it is expected that in the end justice will prevail and all the offenders related to this heinous act will be punished. The Supreme Court is also expected to lay down stricter and stringent laws on protectors becoming perpetrators.

-This article is brought to you in collaboration with Shivaang Maheshwari from Gujarat National Law University, Gandhinagar.