VOLUME 2 ISSUE 1
USE OF ADR MECHANISM IN SOLVING IPR CONFLICTS
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Alok Verma
Research Scholar (Law) Vikram University, Ujjain
Email ID: alok17advocate@gmail.com
ABSTRACT
Since centuries, habitants of India have evolved with several forms of dispute resolution mechanisms and over period of time, they have customized, varied according to needs. Sometimes disputable transactions create multi•jurisdictional disputes between the nationalities of different countries having different social backgrounds and mindsets. Usually those business entities having familiarity with ADR are able to resolve such conflicts efficiently. As the determination of commercial or non commercial disputes before different national courts can result into high legal and other costs as well as conflicting awards therefore, the ADR has a potential to provide business entities belonging to distinct nationalities a single unified forum of arbitrariness thereby having a final enforceable award binding across multiple jurisdictions hence, increasingly, IP owners and users are approaching to many of known ADR procedures like arbitration and mediation to resolve their IPdisputes.
The intellectual property conflicts are not that conflicts which cannot be resolved through ADR. As intellectual property conflicts being a specialized in its nature and it require specialized services of ADR experts in resolving IP conflicts, mainly due to non availability of IP experts in India is the main obstacle in resolving IP conflicts through arbitration or through ADR. Thus, like any other emerging field of Law, IP conflict resolution also has plenty of debatable issues before it. In this research paper, it will be my endure to develop into the issue like whether ADR can be real alternative to solve IP disputes. Also whether, an alternative dispute resolution procedure can play effective role in resolving IP conflicts, if so, to what extent.
Keywords: Alternative Dispute Resolution, Intellectual Property rights, Multi Jurisdictional Disputes
INTRODUCTION
Disputes relating to intellectual property protection are gradually escalating in the Indian legal setting. Intellectual property protection is available for a limited period for the intellectual property creator who has to enforce it in an effective manner. Because of the excessive delays in the judicial system, there is a need to look for other solutions and mechanisms for sharing the burden of the judiciary. This is particularly relevant because the aggrieved person enjoys limited rights and the only remedy available is that which is prescribed under substantive legislations. Alternative dispute resolution measures are gaining prominence for enforcing the protection of intellectual property. This article
explores the use of alternative legal mechanisms for the protection of intellectual property rights in India.
ALTERNATIVE DISPUTE RESOLUTION MECHANISM
Alternate dispute resolution embodies within its garb different modes of resolving a dispute, other than that provided by the traditional model of litigation. Arbitration, mediation, settlement and conciliation are some of the models which are the alternatives to court based litigation. The Arbitration and Conciliation Act, 1996 has been the main statute in India dealing with the two cited alternate forms of dispute resolution. The Civil Procedure Code, 1908 also provides for the adoption of different models for the expeditious determination of disputes. The merits of the modes of alternate dispute resolution are not only limited to speedy remedy, but also, to the flexibility, cost effectiveness, confidentiality and business oriented results. The traditional court based litigation system is adversarial in nature which might lead to severing the relationship between the parties, whereas the alternative dispute resolution methodology provides a way for the amicable settlement of disputes. In fact, the Indian judiciary has effectively tried to bring mediation and settlement for intellectual property disputes in the traditional model of litigation, through the reading of section 89 of the Civil Procedure Code, 1908. Even where the alternative dispute resolution methods fail to be the effective choice for the determination of disputes related to intellectual property rights, they can be used for narrowing down the issues for contestability in a traditional model of litigation.
NEED OF ADR IN INTELLECTUAL PROPERTY DISPUTES
The intellectual efforts of the creators of intellectual property are valued on the basis of the sign of the rights affixed to ‗intellectual output‘. Intellectual property protection provides a pointer to the creator to exert his powers over third parties, who, without his permission, try to use the fruits of his labour. The rationale for the creation of rights gets defeated if they cannot be enforced. The owners of intellectual property have to be their own watchdogs and take recourse to the Courts for the infringement of their rights. Indian Courts have taken a giant dive towards the development of an intellectual property regime in India; however, the available resources could be put to better and proper use by the Courts in India if the alternate dispute resolution is deployed. Matters related to patent law and copyright law, which involve intersection with science and an understanding of technology, need special adjudicating officers, who can comprehend the interdisciplinary nature of the case at hand with sufficient ease. The limited nature of protection given to the owner of intellectual property rights, call for developing mechanisms to execute immediate and swiftjustice.
While evaluating the performance shown by the Indian judiciary in cases related to intellectual property rights, the Supreme Court of India has in the case of Shree Vardhman Rice & Gen Mills v. Amar Singh Chawalwalaheld that ―…Without going into the merits of the controversy, we are of the opinion that the matters relating to trademarks, copyrights and patents should be finally decided expeditiously by the Trial Court instead of merely granting or refusing to grant injunction. In the matters of trademarks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper…In our opinion, in matters relating to trademarks, copyright and patents, the proviso to Order XVII Rule 1(2) C.P.C. should be strictly complied with by all the Courts, and the hearing of the suit in such matters should proceed on a dayto
day basis and the final judgment should be given normally within four months from the date of the filing of the suit.‖Reiterating its stance in Bajaj Auto Ltd. v. TVS Motor Company Ltd., the Supreme Court of India heldthat―experiencehasshownthatinourcountry,suitsrelatingtothemattersofpatents,trademarksand copyrights are pending for many years and litigation is mainly fought between the parties over temporary injunction. This is a very unsatisfactory state of affairs, and hence, we had passed the above quoted order in the case of Shree Vardhman Rice & Gen Mills v. Amar Singh Chawalwala to serve the ends of justice. We direct that the directions in the aforesaidorder be carried out by all courts and tribunals in this country punctually and faithfully.‖ It is evident that due to unwarranted delay in the disposal of cases and the costly litigation which could prolong the protection accorded to the work, rather than promoting the progress of intellectually protected work, the aggrieved parties are opting for alternate dispute resolution mechanisms for the advancement of intellectual property rights in India. Moreover, the commercial nature of the transactions involved in majority of intellectual property based litigations, solicits such an approach. Arbitration and Mediation mechanisms have been outlined in recent multilateral agreements with the recognition that traditional litigation is no longer the most viable means of settling international intellectual property disputes. IMPORTANCE OF ADR MECHANISMS IN THE IPADMINISTRATION
Intellectual property disputes tend to be large and complex and often involve high stakes. Resolving these conflicts through traditional litigation processes can sometimes be detrimental to the business interests of both sides to the dispute. The major disadvantages of litigating these disputes can be the
(1) prolonged time to arrive at a resolution, (2) high cost, (3) inflexibility of the result, (4) lack of control over the outcome, (5) poor predictability of the result, (6) negative publicity and (7) harm to the business relationship. Former Chief Justice of the U.S. Supreme Court, Chief Justice Burger once said ―that the notion that ordinary people want black•robed Judges and well dressed lawyers and fine Courtrooms as settings to resolve their disputes is not correct. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible.‖The ADR mechanism conjures up various advantages when the same is applied in resolving various IP disputes. To sum•up, following are the various advantages:
- Quick and EfficientResolution.
- CostSavings.
- Creative, Business•DrivenResults.
- Control Over Process andResult.
- Better•InformedDecision•Making.
- Maintained, Improved, or New BusinessRelationships.
- Confidentiality.
PATENT LAW AND ALTERNATE DISPUTE RESOLUTION
Law related to patent channelizes the field of technology with law. As the patent disputes involve an understanding of technical knowledge related to the dispute in question, the biggest hurdle, which the Indian Courts face, is with respect to streamlining the trial of the dispute in a cost effective and prompt manner. Every
dispute in the domain of patent law in India has revolved around the nitty•gritty of interim injunctions and the appeals related to those injunctions. Infact many countries have endorsed the inclusion of arbitration as a model for the resolution of patent disputes. The Patent Act, 1970 particularly under section 103 of the Act makes use of arbitration as a procedure for resolution of dispute. Closer integration of alternate dispute resolution mechanisms in patent infringement suits could be the way forward for appropriate dispensation of justice.
TRADEMARKS AND ALTERNATE DISPUTE RESOLUTION
In India, trademark litigation covers an overwhelming landscape in the intellectual property related litigation. The trademark litigation is an inter partes adjudication. That being the case, the modesof alternative dispute resolution can certainly provide an appropriate recourse to the ailingjudiciary.
Moreover, it is germane to note that in cases of cyber squatting, arbitration plays an eminent role in the streamlined procedure outlined under the Uniform Domain Name Dispute Resolution Policy, 1999 and the Indian Domain Name Dispute Resolution Policy for the adjudication of disputes. This brings to fore the importance of arbitration and the use of other alternate dispute resolution measures for reconciliation of the interests of the trademark owner and the impugned party.
ADR IN COPYRIGHTS DISPUTES
A copyright dispute typically involves the issue of whether or not an infringing party has infringed a copyright. A key issue in such a dispute is usually the question of whether the infringer has unlawfully ―copied‖or derived his own work from a work protected by copyright. The dispute typically involves weighing the evidence of the infringing party‘s access to the original work and the degree of substantial similarity between the particular expressions of the original work and the infringing party‘swork.
SOLUTION
The solution lies in the introduction of alternative dispute resolution mechanisms, for the redressal of grievances related to infringement of protected rights of an intellectual property holder. Alternative dispute resolution mechanisms are less time consuming, efficient and provide flexibility to the right holder. It is important to note that in all the commercial transactions, the route of alternate dispute resolution has already shown its majority over the traditional modes of litigation. Nowadays, contracts related to transfer of intellectual propertymostlyincludethe ―arbitrationmediation‖clause. Thishighlights the weight of arbitration in commercial intellectual property transactions. In a landmark judgment in the case of Bawa Masala Co. vs. Bawa Masala Co. Pvt. Ltd. and Anr., where a number of legal disputes were resolved througha process of alternate dispute resolution, the Delhi High Court passed orders for adoption of a process known as early neutral evaluation, in an intellectual property based litigation suit. The Court in this case, under the umbrella of section 89 of the Civil Procedure Code, 1908 mooted for the inclusion of such procedures for amicable settlement of disputes.The Court further said that the early neutral evaluation procedure shares the ―same features as a mediation process…the difference is that in case of mediation the solutions normally emerge from thepartiesandthemediatormakesanendeavortofindthemostacceptablesolution‖whereas―incaseofearly neutralevaluation,theevaluatoractsasaneutralpersontoassessthestrengthsandweaknessesofeachofthe
parties.‖ The Court further made a distinction between early neutral evaluation and arbitration by stating that in early neutral evaluation ―there is no testimony or oath or examination and such neutral evaluation is not recorded.‖TheCourtalsoheldthatearlyneutralevaluationis―confidentialandcannotbeusedbyanyofthe parties against the other. There is no award or result filed.‖ This stands as a seminal case, where, Indian Courts have tried to bring alternative dispute resolution machinery for solving intellectual property infringement related matters. This case also highlights the inclination, which Indian Courts have started sharing, towards involvement of alternate dispute resolution measures in resolution of suchdisputes.
However, use of alternative modes of dispute resolution for determination of intellectual property related disputes, may face some problems. Firstly, since the protection of intellectual property is territorial in nature, the public policy consideration as set down by the Supreme Court of India in the case of O.N.G.C v. Saw Pipes, can pose a hurdle towards enforceability of arbitral awards, if made on the mandate of intellectual property related disputes. Secondly, the issue of validity of intellectual property points towards determination of right against everyone. This might pose another roadblock for the use of alternative dispute resolution machinery in intellectual property related disputes. However, the determination of infringement of intellectual property, as it determines the rights between two parties, can certainly be adjudicated by the use of alternative dispute resolution machinery.
CONCLUSION
Statutory rights, which are limited in nature, solicit a different approach for their effective enforcement. The jurisprudence related to the establishment of various quasi•judicial bodies under different intellectual property laws, points out that these bodies were formed to share the load and to render an expert testimony towards the determination of validity of intellectual property. The infringement of intellectual property rights, since it pertains to an inter parties dispute, can be very well adjudicated by using alternative dispute resolution measures.
REFERENCES
- (2009)10SCC257; See also Pachranga Syndicate Pvt. Ltd. v. Som Nath and Anr., 2010(42)PTC253(Del); See also Sri Rajeswari Fire Works v. Kaliswari Fire works and Ors., C.M.A. (MD) Nos. 1378 and 1388 of2010.
18.(2009)9SCC797
- Kevin R. Casey, Alternative Dispute Resolution and Patent Law, 3 Fed. Cir. B.J. 1(1993)
- Margaret F. Anderson, Intellectual Property Mediations: Special Techniques for a Special Field, 3 Tex. Intell. Prop. L.J. 23, 24(1994).
- Janerson,RepresentingYourClientsSuccessfullyinMeditation:GuidelinesforLitigators,
N.Y. Litigator, November 1995, at 15 (quoting Chief Justice Burger at the 1985 Chief Justice Earl Warren Conference on Advocacy: Dispute Resolution Devices in a Democratic Society (Roscoe Pound•American Trial Lawyers Foundation 1985)).
- Steven J. Burton, Combining Conciliation with Arbitration of International Commercial Disputes, 18 Hastings Int‘l & Comp. L. Rev. 63719941995
- Scott H. Blackmand & Rebecca M. McNeill, Alternative Dispute Resolution in Commercial Intellectual Property Disputes, 47 Am. U. Rev. 1709(1998
- AIR 2007 Delhi284 15. AIR 2003 SC2629
- A Smith et al., Arbitration of Patent Infringement and Validity Issues Worldwide, 19 Harv. J.L. & Tech. 2992005•2006
- http://www.inregistry.in/.IN Domain Name Dispute Resolution Policy(INDRP)
- http://www.inregistry.in/.IN Domain Name Dispute Resolution Policy(INDRP),
- Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 837 (Fed. Cir. 1992); see also Jessica Litman, Copyright As Myth, 53 U. Pitt. Rev. 235(1991)
- Atari Games, 975 F.2d at 83738; See, e.g., Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1169 (7th Cir. 1997); Repp and K & R Music, Inc. v. Webber, 132 F.3d 882, 891 (2d Cir. 1997); Grubb v. KMS Patriots, L.P., 88 F.3d 1, 6 (1st Cir. 1996)
- Atari Games, 975 F.2d at844.
- Adam Epstein, Alternative Dispute Resolution in Sport Management and the Sport Management Curriculum, 12 J. Legal Aspects Sport 153, 154 (2002)
MEN: NOT ALWAYS THE ACCUSED BUT SOMETIMES THE ABUSED TOO
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Bhavya Srivastava
BBA.LL.B (H)
6th Semester
Amity Law School, Noida (U.P) Email ID: bhavyasrivastava95@yahoo.com
ABSTRACT
The paramount purpose of this article is to create an equal environment for men as compared to women with respect to crimes and violence.This paper talks about victimization of men, about how men are not equally treated when it comes to them being assaulted or exploited. This abstract discusses instances of dowry harassment, sexual assault, domestic violence where men are falsely framed for offences that they have not even committed. This paper also highlights some of the laws which are favorable to women when compared to men. The paper emphasizes on the present scenario where men are vulnerable to various crimes. The stereotype mentality accepts women as victims and men as executors. The sub themes of the paper are “Men as victims of Violence”, “Forced Sexual Intercourse”, “Trafficking”, “Forced Marriage”, “Kidnapping and Abduction”, “False Dowry Cases”, “False Rape”, “Assault”, and “Other Charges”.
As a whole the article speaks from men‟s point of view who are always thought of as the accused and never the abused.The study has been done by taking into consideration the valuable text available in form of online content, digests, journals, articles and case laws.
Keywords: Sexual assault, Dowry harassment, Rape, laws.
INTRODUCTION
Over the years men have attained a position of dominance in the society due to Indian society being a patriarchal society. This situation has resulted in many instances where women have been put in situations where they feel that either they are inferior to men or in a position where they cannot raise their voices against the injustice. However with the changing scenario and growing activism in the recent years there has been great awareness among women and they have started knowing their rights and are ready to fight for them too. Apart from the awareness, legislations have been made which empower women and enable them to raise voice against any injustice that might occur to them. This was done because the legislation realized that laws should be made to prevent the injustice against women who continue to be dominated by the male gender. With the increasing cases of assault against women the definition of the same has been amended and widened. To believe it or not but consciously or subconsciously there exists a bias in favour of women claiming to be the accused. It is a a general notion and a common mind•set that the male is the accused and women is the abused. This situation may have been true a few years back however in the present• day many cases have been reported wherethewomenaretakingundueadvantageofthelawsthatfavorsthem.Thenewlawshavefailedto
capture the truth that even men can be the accused and not always the abused. However, very less is done to even acknowledge the issue of violence against men, let alone there being steps taken to protect victimized men. There are numerous laws which protect women, but the woes of men suffering from violence go unnoticed.
Focusing on this issue we have mainly discussed issues of domestic violence, sexual assault, false instances of dowry harassment againstmen[1]
INCIDENTS AND INSTANCES AGAINST MEN
Even though we are progressing as a society but somewhere it is still considered shameful and unmanly if a male reports of violence, especially sexual violence, against him. A case of Deeptanshu Shukla[2]who was an IIT Topper who fought the false dowry case against his wife Pragya Diwedi, who filled a false complaint against her husband. Investigation showed that she did not want to live with Deeptanshu‘s parents so just to get rid of them she filed a false complaint against him and his family. Deeptanshu took this as a challenge and decided to fight this case on his own, which resulted in hiswin.
There are so many cases just like the above one, and this is just a few of the cases to mention. Many of those cases are very difficult to prove since government has given a very powerful right in the hands of women, and many women misuse their rights and powers. Now, the question is that the government says that India is a gender neutral country but it is very hard to make India such a country government has to make laws which protects both the genders. If laws which protect women like anti dowry laws and section 498A[3]of Indian Penal Code, 1860. Government should also make such laws which should favour the men as well. Like laws should be made where men can file a complaint that he has been accused falsely. Moreover, dowry cases should be investigated properly. Violence‘s like domestic violence are issues that have been recognized all over the world as such form of violence that adversely affects the person physically, emotionally, psychologically and in many other ways. Almost all the countries of the world have identified this problem and found various ways to provide relief. India has also recognized it as an important problem and has framed various laws for protection of victims. However, like our society our law also presumes that it is women who need protection and the law largely works on protecting the victims who are women. Situation is made worse by the laws which favour women in crimes like these. Men complaining of such incidents are often laughed at because most people still believe only women can be victims of crimes like rape, harassment etc.[4]STATISTICS OFVIOLENCE
There have been various surveys and researches conducted which totally contradict this stereotype mentality. According to National Crime Research Bureau 2012 data [5], 175 men have been abducted and kidnapped for illicit intercourse since the year 2009 in India. The NCRB report also shows that nearly 995 men were abducted for the purpose of forceful marriage. Another similar NCRB Data also shows that approximately 115 men were abducted for the purpose ofprostitution.
The 2014 National Crime Victimization Survey[6]states 38 per cent of incidents of rape and other sexual violence were against men. Males are raped where victims are forced to penetrate someone either by physical force or coercion. There have been incidents where the victim was forcefully intoxicated to give sexual
pleasure .Usually these cases have been reported form the prison and war fields. In case of Syrian Civil War the male detainees experienced sexual abused like being forced to sit on a broken glass bottle, getting their genitals tied to a heavy bag of water, or being forced to watch the rape of another detainee by theofficial.[7]
A 2010 study by the Centres for Disease Control and Prevention[8]found that it were female perpetrators in instances of being made to penetrate(79.2%), sexual coercion(83.6%) and unwanted sexual contact(53.1%). Men are also harassedsexually at the work place as has been seen in the Bollywood Movie ―Aitraz‖. Sexual torture of male models and extras is also prevalent, In the last decade sexualized violence against men and boys including rape, sexual torture, and mutilation of the genitals, sexual humiliation, sexual enslavement, forced rape has been reported in 25 armed countries of the world. There have been incidents where the victim was forcefully intoxicated to give sexual pleasure. CASE: James Landrith[9]who was made to penetrate a female acquaintance in hotel room while incapacitated from drinking. In US School teachers were involved in raping their under aged students.
According to the provisional data of the National Crime Records Bureau (NCRB), a total number of 16,351, 4,204 and 531 cases have been registered under the Protection of Women Against Domestic Violence Act, 2005 in 2012•14. Out of 90,000 to one lac cases investigated every year, nearly 10,000 complaints of dowry harassment turn out to be false.The figure makes the Protection of Women Against Domestic Violence Act (498A) one of the most abused laws in the country[10]
Similar is the situation in cases of dowry harassment. One such case is the Nisha Sharma vs Munish Dalal[11]and his family. This is a landmark case in false dowry complaint. In this case the accused filed a false complaint against the victims‘ family asking for dowry and torturing her. After all the investigation conducted by the police it was found that the accused made a false complaint against the victim. The accused never wanted to marry her husband in the first place and just to break this marriage and get a sufficient proof for divorce she filed the false complaint. Later, on the victim Mr. Munish Dalal acquitted and he even counter sued the accused with adultery and bigamy. Apart from this famous case, the general rule is that most dowry harassment cases result in acquittal.[12]All this only shows that even though as a society we try to push the matter under the rugs saying most incidents are only one off but in reality it is a growing crime which needs to be seriously addressed. A Research from the 2012 ABS Personal Safety Survey and Australian Institute of Criminology shows that one out of every three victims of family violence and sexual assaults are men.[13]EFFECTS OF ATROCITIES ON SUCHVICTIMS
Our society however sees a man‘s ability through how he handles crisis. This attitude of society, where the men who are victims are shunned or even worse laughed at has forced the victim to hide the crime and suffer in silence. Their families don‘t want to acknowledge it publicly. They don‘t have a platform to speak out as they are afraid of the fact that people will doubt their sexual orientation. An adult male may also be reluctant and helpless to fight back or fearful of doing so. Male victims tend to feel more intense anger. The recorded frequently physical injuries are tension headache ulcers colitis nausea abrasions to the throat, black eyes and brokenbones[14].
Depression and hostility are profound on male victims immediately post rape. The recorded frequently physical injuries are tension headache ulcers colitis nausea abrasions to the throat, black eyes and broken bones, The study by Stermac and colleagues (2004) noted that 45% of male survivors who accessed hospital sexual assault centre had some type of physical injury(25%) soft tissue injury, 20% lacerations. Some victims suffer the transmission of sexually transmitted diseases as the result of rape.[15]Men who were sexually assaulted before age 18 have a greater risk of having mental health problem including symptoms of post traumatic stress disorder and depression, alcoholism and drug abuse, suicidal thoughts and suicide attempts problems in intimate relationship and under achievement at school and at work. They also develop fear of becoming homosexual or gay. Some may also develop sense of being and inadequate man. They may also lose confidence control and power to his manhood.
ABSENCE OF GENDER NEUTRAL LAWS
When one feels shattered, deceived and does not get support from society ,one would definitely turn to seek legal help and hope to get justice at least in the courts of law. However a look at few of the provisions at our existing Laws makes us realize that getting justice legally is also a tough, tedious and tiring battle for men who are victims.[16]In Indian Penal Code, for example, Section 377[17]which talks about Unnatural Offences i.e. whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. This law is not biased. However it is hardly interpreted in its true, complete and exhaustive sense. We need to have gender neutral laws.
The definition of rape under Section 375[18]of Indian Penal Code 1860 says that a man is said to commit―rape‖andlaysvariousgroundswhichare includedinthe definitionof rape.Atdoesnot include provisions for male as victims. The definition of rape in India is not gender neutral as compared to other definitions of various crimes where most of the time the words used are ―anyone‖, ―any person‖, someoneetc.Andnotdirectlyaccusingbyusingtheterm―amanbydefault‖asstatedinSection375of Indian Penal Code 1860.Then there are provisions like protection of women against sexual harassment at workplace which are also gender biased. In many countries violence against men is equally an offence as violence against woman. Men can move to courts, file for divorce, get restraint orders and fight for their rights to prevent the abuse from their partners. In India, however, the absence of proper legislation makes violence against men legal. If laws which protect women exists like anti dowry laws and Section 498A of Indian Penal Code, 1860. Government should also make laws gender neutral. Moreover, dowry cases and other similar cases should be investigated properly. Separate tribunals or authorities should be set up by government to investigate the authenticity of complaint filed by awoman.
CONCLUSION
The crimes against women in our country has been a sensitive issue and is still continuing and is very obvious to everyone. In spite of many attempts such gruesome crimes are prevalent in the nation. Keeping this in mind one cannot blame the society or the law for always seeing men as the accused. However one can also not blametheentiremankindbyformingastereotypenotionagainstmenbyalwaysseeingthemunderthe
suspicion of being accused. We emphasize that with the increasing cases of violence against men there is a need to throw light on victimization against men which gives rise to a huge necessity to make the laws gender neutral. It is bad enough to be a victim of a crime, but worse when the crime is not recognized by society or law.
To address this issue, the society first needs to accept the problem. The manhood of victim cannot be judged because of a crime that he has been subjected to. A change in the attitude of society in how we see men who are victims of crimes will help these people to come out in open and seek the needed help. There have been many organizations like the Save Indian Family Foundation which have approached various members of parliamentrequesting them to submit a private member bill to start making steps for working on enacting a law to protect men from violence.[19]It‘s long overdue. It is when law has provisions for punishing of victims based in crime irrespective of gender it will establish equality in the real sense.There should be more laws to protect innocent men from the malicious intentions of women who want to frame them in false charges by misusing the legal provisions. Such women stain the sanctity of law.There is a famous saying that: no innocent should be punished even if 100 convicted are set free.[20]To conclude I would like to say that ―We must not take the sides. Neutrality helps the victim never the oppressor‖.
REFRENCES
- Gillian C. Mezey, Michael B. King Male victims of sexual assault., Prinston Univ. Press, U.S, 1992.
- Hanna Rosin, When Men Are Raped, Oxford Univ. Press, U.S, 2005.
- Philip W Cook , Abused Men, Cook Publications,U.K,2009.
- Virag R DhuliaDomestic violence against men, Winston Publications, U.K,2010.
- Partridge, E. (2015). Statistics Reveal Hidden Violence. Sydney Morning Herald,Aus.,2013.
- http://www.universityexpress.co.in/delhiuniversity/2015/04/iit•topper•fights•and•wins•own•d owry• harassment•case/(last visited on March 292016)
- https://indiankanoon.org/doc/538436 (last visited on March 292016)
- http://zeenews.india.com/exclusive/sexual•crime•against•men•is•no•myth_6885.html.
- http://www.nbcnews.com/id/19536167/ns/business•careers/t/male•sexual•harassment•not•joke/#
.Vv9CiqR96M8
- http://zeenews.india.com/exclusive/sexual•crime•against•men•is•no•myth_6885.html
- http://www.bjs.gov/content/pub/pdf/cv14.pdf/(last visited on March 292016)
- https://www.quora.com/Is•it•truethat•only•women•are•raped•has•anybody•seen•the•stats•of•a• man•getting•raped
- http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010•pdf
MORAL POLICING: A SOCIAL ADROITNESS
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Divya Ann Samuel
BBA.LL.B (H)
6th Semester
Amity Law School, Noida (U.P) Email ID: divyaannsauel@gmail.com
ABSTRACT
The term „Dharma‟ has been used occasionally, yet, with great emphasis by Indian jurists in various judicial pronouncements. The nexus between „Dharma‟ and Indian jurisprudence is very old. It dates back to the ancient times when India was not invaded and the culture was in a crude form. There were neither rules nor law to govern the conduct of people. So, the imperative need to satisfy and govern the relations among humans was aided by „Dharma‟. This in turn slowly gave way to „moral policing‟. Directing the actions of others is often taken up as a inherent duty of some vigilante groups. The question posed before the present generation is whether there exists a need of such groups for directing their actions, especially when we have cultures being unified.This paper highlights these recent double standard opinions of Indians. The basic issue of individual interest vis•à•vis community interest has also been discussed. The entire paper addresses the issue of whether moral policing is a social adroitness or a mere evil.
Keywords: Dharma, Moral Policing, Status of Women.
INTRODUCTION
According to Manu, the fear of danda(punishment) made people follow „dharma‟.[1]The King had the duty to ensure that his subjects followed the path of „dharma´. The Kings therefore played the role of ‗moral police‘. This is how the concept of ‗moral policing‘ came into existence.However, with the march of time and progress of Indian society, the concept of law and therefore, of jurisprudence has changed radically[2]. India is developing. Development process involves exchange of cultural, social and religious values besides exchanging commodities. ―The relationship between culture and development should be clarified and deepened in constructive and practicalways.‖[3]
IMPORTANCE OF WOMEN IN SOCIETY
It is really very painful to make people understand the importance of women in the society. The very effort made to make people understand this topic is sufficient enough to say that the condition of women has undergone a drastic change, change which none of us was expecting. It is alarming that what happened to a society where once the married women has equivalent right to that of men is now fighting to safeguard their basic rights. It is also thoughtful that why a women finds more difficult to adjust in the society after divorce or death of husband. The grief or the pensive mood of a woman is the only reason or is there a social barrier which leads to such kind of problems. However, various guidelines given by so called spiritual leaders becamebindingonwomen.Ifthissocietyhastogrowandgrowinaconstructivewaythenithastothink
above all this. Restrictions have to be reasonable, even the restrictions put on the fundamental rights of the citizens, in Indian constitution is reasonable and apt and not just mere restrictions.
B.R Amedkar said ―I measure the progress of a community by the degree of progress of which women has achieved.‖[4]Thus it can be inferred that value of a society can be accessed by analysing what place women hold in the society. Among the several factors on which we substantiate the greatness of Indian culture, one is granting a respectable place to women in the society.
No society is complete without women. The fact cannot be denied that women in these days is giving a tough fight to men in almost every field whether it related to science, literature, sports, etc. If we have Leander Paes in tennis then we also have Sania Mirza in the very same field. If we can‘t ignore the contribution of SardarVallabhbhai Patel as a leader we can‘t close our eyes and abstain ourselves from seeing the achievements of the iron ladyof India ―Indira Gandhi‖.The point here is not that women is giving tough challenge to men but they are equally capable of performing any task and the society must acknowledge this fact.
Women do need to be given space for growth and equal opportunity. This should not come at the expense of exploitingallinnocentmen.‗Hellhathnofurylikeascornedwoman‘,rightlyquotedShakespeare.Applyingit to the present scenario, this would mean false allegations of sexual harassment by a woman who seeks revenge against her male counterpart. The posting of a video by an Indian actress, whereby she defies ‗moral policing‘ to certain extent cannot be fully supported. Eradicating ‗Moral Policing‘ completely will lead to people terming adultery[5]as ‗MyChoice‘.
We do not hold the opinion that only women are exploited. Men too, at times, are subject to ill• treatment. In Dastane vs. Dastane[6], though justice could not be fairly be done to Mr.Dastane, yet it must be mentioned that he was victimized by his wife.
THE ‘KISS OF LOVE’ MOVEMENT
‗Kiss of Love‘ movement has its roots in Kerala. A brain child of the commoners, including students and youngsters, it got a nationwide support. The apparent purpose of the movement seems to be an instrument to defy the moral policing of the orthodox people. It not only aims to endorse ‗kissing‘ but also urges the citizens to be compassionate to each other by defying hate and criticism.The followers of extreme right•winged thoughts attacked the restaurant ―Down Town‖ in Kozhikode, because they believed young people spending time there were being immoral[7].
This movement was an initiative of a group called ‗Free Thinkers‘. The Facebook page for the site says of the event that ‗young bloods join their hands together to prove to the society that kiss is the symbol of love‘.[8]The protest was announced after BharatiyaJanataYuvaMorcha volunteers vandalised a cafe in Kozhikode claiming that they were prompted to do so by the ―immoral activities‖ that took place in the cafe.[9]Media speculation indicates that this was a reference to footage of youngsters kissing in the cafe[10]
The supporters of this movement were attacked from two sides; on one side there were right wing ‗antikiss‘ campaigners, who went to the extent of vandalizing the area and causing grievous hurt[11]to the supporters.
A rather peaceful movement turned out to be a scrimmage between the two groups. On the other side was the State which had use force to maintain law and order.
Situations where speakers are silenced by the state because an unruly crowd creates pressure through its violencearewhatAmericanjuristHarryKalvenwastryingtodescribewhenhecoinedtheterm‗heckler‘s veto‘[12].Kalvenpointedoutthat―ifthepolicecansilencethespeaker,thelawineffectacknowledgesaveto powerinhecklerswhocan,bybeinghostileenough,getthelawtosilenceanyspeakerofwhomtheydonot approve‖.[13]The oneswho support―Indian Culture‖shouldtake a lookat Indian historybefore calling the act of kissing a result of westernization. It would be surprising to know that kissing in India is as old as Mahabharta. Its first signs were seen in theepic.
It is believed by the researchers that it was after the invasion of Alexander the Great in Punjab that kissing spread all around the globe.Further proof that India was the birthplace of the kiss, Mr. Bryant said, is the origin of the word itself. He points out that in ancient India, ―busa‖ or ―bosa‖ were used to refer to kissing and from these early words, the Latin term for kiss ‖basium‖ and the Old English words ―ba‖ and ―buss‖ are derived.[14]A question often which arises is that when India is land of origin for Kamasutra, then why does holding of hands becomes a big scandalizing news for everyone, ranging from commoners to celebrities? The answer to this is in the underlying fact that women are considered to be the property of their fathers‘ and husbands‘.
KISSING IN PUBLIC AND IPC
The important ingredients to constitute offence[15]of obscenity, the act include: ü The act must be done in a publicplace
ü The act must cause annoyance toothers.
The legal test of obscenity is satisfied only when the perverted interest in sexual matters or having a tendency to morally corrupt and debase person likely to come in contact with the impugned act.[16]A clear demarcation between a vulgar and an obscene act must be known. Though annoyance is an important of this offence, it being associated with mental condition,[17]has often to be inferred from the provenfacts.
At this point, it will be important to take into account the Court‘s opinion over the same.
In India, prior to 2014, the Hicklin‘s test was followed to define obscenity. Cockburn, C.J. in the Hicklin‘s case said ―We need not bowdlerize all literate and thus rob speech and expression of freedom. A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.‖[18]
In Director General of Doordarshan and Ors. V. AnandPatwardhan&Anr.,[19] Supreme Court has again referred to the Hicklin test and observed that the relevant questions are:
- Whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurientinterest.
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the Statelaw.
- Whether the work taken as a whole, lacks serious literary, artistic, political or scientificvalue.‖
In the case of Aveek Sarkar vs. State of West Bengal &Anr.[20], the test clearly discarded the Hicklin‘s test. It stated that the concept of obscenity keeps on changing with changing social values. It lay down that there should bea―communitytest‖to verifythe obscenityof anact.
It reiterated the fact that the community must adjudged from the point of view of an average man by applying comparative thinking standards.
The values of people staying in a metropolitan area and those staying in villages will vary drastically. In a relatively backward area, something against the community standard would become illegal. The actions of people in Metropolitan cities are a little more acceptable with regard to breaking of the usual trends of the community.
LEGAL PERSPECTIVE
The Constitutional bench of Supreme Court in 1965[21], held that what might seem obscene at one point of time, might not be the same in time to come. Following in this, in 1969[22], Supreme Court again reiterated theprinciplecallingthesocietalstandardsas―fastchanging‖.InthecaseofSKhusboovs.Kanniammal[23], hon‘ble Supreme Court observed that obscenity should be ascertained with respect to the modern community standards[24].Apparently on a weighing scale, if measured, ‗community‘ perceptibility of an act weighs more than an individual western outlook of things. However, the Supreme Court has considered ‗contemporary mores‘ to determine obscenity. It has clarified further that while measuring the standards it does not include ‗a sensitive group ofpersons‘[25].
―Stern‖,aGermanmagazine,publishedanudephotoofBorisBeckerandhisdarkskinnedfiancéeBarbara Feltus. The magazine had a worldwide publication. The purpose of the photograph was to condemn‗apartheid‘ and promote love by defying hatred. The Court held that the purpose that had to be conveyed is important. The purpose was to prove that love knows no race, caste, orreligion.
The Hon‘ble Supreme Court in the case of Ranjit Udeshi vs. State of Maharashtra[26], observed that the test of obscenity must square with the freedom of speech and expression guaranteed under the Constitution and the Court to reach a decision on a constitutional issue of a most far reaching character and it must beware that it must deviate from the guaranteed freedom[27].Kissing and hugging in public places, if is consensual, a case cannot be made out of it[28].On the eighteenth of September, 2008 a couple was booked under the charges 294/34 of the Indian Penal Code, 1860[29]. The couple went to the Dwarka Court Complex to get their marriage registered. Due to some reasons they had to wait outside the complex. They decided to stand under the Delhi Metro Pillar. They then decide to take pictures together and allegedly ‗kissing in public‘. It was then that their ordeal began. They were then spotted by a PCR van and arrested thereafter. The Delhi High Court in its order dated February 2, 2009 dismissed all the FIRs against the couple. It said that it is not an offence for the married couples to kiss or hug inpublic.
INDIVIDUAL INTEREST VERSUS COMMUNITY INTEREST
In the case of BashehsarNath vs. Income Tax Commissioner[30], the Supreme Court held,
“It is not open to citizen to waive any of his fundamental right…… These rights have been put in the Constitution not only for the benefit of the individual but as a matter of public policy for the benefit of the people.”
This proves that in India community as a whole is sought to be protected over the individual. This brings to light the lacuna of a democratic country, where the interest of an individual is weighed against the interest of his society. Many jurists talk about harmonizing the conflicting interests of individuals and community, as done by various other countries includingFrance.
Over the years, various reforms have been brought about by way of amendments in statutes and in interpreting the provisions of various statutes. For instance, introduction of Sec. 498A in the Indian Penal Code, by the Criminal Law (Amendment) Act, 1983[31]to combat menace of dowry deaths.
Also, in the case of M.F Husain vs. Raj Kumar Pandey & Etc.[32], the painting made by M.F Husain of a nude woman showing her agony was thought not to be obscene under Sec. 294 of IPC.With these modern interpretations a liberal approach to the bisexuals is also being evaluated by the Parliament. The Principle bench of Central Administrative Tribunal, New Delhi, in February, 2012 expressed a similar idea on the same lines. The Hon‘ble Chairman said that the sensitivity to the changing perspective and concepts of morality should be maintained in order to appreciate today‘s changingperspective.
ARTICLE 19 OF INDIAN CONSTITUTION
The right to freedom of speech and expression[33]can be said to violate this right of individuals.Exception to the freedom of speech lies in Art. 19 (2). The reasonable restriction so imposed, earlier included ‗national security‘, but the Supreme Court rejected this to be included as an exception. The Nehru government then later added ‗public order‘ as an exception while explaining
‗reasonable exceptions‘. This, however, resulted in Supreme Court to permit ‗prior restraint‘ of speech and expression for the purpose of law and order. In the case of Babulal Parate vs. State of Maharashtra[34] the court upheld anticipatory restriction of freedom of speech and expression in the interest of public order.
Silencing people under the shield of law is however made the Judiciary play an active role and protect people‘s right. Supreme Court never has directly used the term ‗heckler‘s veto‘ but has acknowledged at many instances. In the case of S. Rangrajan vs. P. Jagjivan Ram[35], it was held that freedom of expression cannot be supressed on account of threat of demonstration and processions or threats of violence…. the State cannot plead its inability to handle the hostile audienceproblem.
The phrase ‗heckler‘s veto‘ features in a 2006 Andhra Pradesh High Court judgment, Lakshmi Ganesh Films and Ors. vs Government Of A.P.[36], where the court examined a state government notification suspending the screening of the film The Da Vinci Code. Justice Raghuram‘s compelling judgment supports both the right tofreedomofexpressionandtherighttoreceiveinformation.[37]Itstatescategorically―dissentersofspeech and expression have no censorial right in respect of the intellectual, moral, religious, dogmatic or other choicesofallmankind‖,andannouncesthattheStategovernment‘scensorshiporder―mechanicallycertified
the heckler‘s veto of a few objectors‖.[38]It is hoped that the judiciary continues to protect speech as firmly, and the legal framework is made more resistant to compliance with the heckler‘s veto.[39]
CONCLUSION
Moral Police which blames women for being the victims cannot be justified by any law. Criticizing a woman for what she wears or loathing her body or considering them as commodities is not correct. This opinion of the vigilante groups has to be changed.Moral Policing has gone to such extent that there are often instances where siblings are subjected to abuse and assault when travelling alone. We are not of the opinion that public nuisance[40]should be encouraged and decriminalized. A thin line lies between public nuisance and ‗obscenity‘. The aim is to increase the tolerance towards the word ‗obscene‘, thereby discouraging the goons to come up to people having normal conversations with opposite sex.Moral Policing is no more a social skill. It now has become a shield to implement orthodox and meaningless ideologies on the new generation. It has now become a social incompetence to hinder the growth of citizens and in turn the country aswell.
REFERENCES
[1]Dr. N.V Paranjape,Studies in Jurisprudence And Legal Theory ,Central Law Agency 6th edition, Pg.2 [2]Ibid.
[3]Our Creative Diversity, Report of the World Commission on Culture and Development, July 1996, Paris,
Pg. 8
[4]B.R. Ambedkar Quotes available at www.brainyquote.com/quotes/quotes/b/brambedk390759.html, last visited on January 28, 2016
[5]Adultery is an offence under Section 497 of Indian Penal Code. Adultery cannot be justified by any means. [6]1975 AIR 1534
[7]Interview given by Rahul Pasupalan, 28,( A software engineer till six months ago he is now working on a film script) to NDTV, available atwww.ndtv.com/blog/why•i•started•the•kiss•of•love• movement•731276, last visited on January 28, 2016
[8]‗Kiss of Love‘ arrests and the heckler‘s veto available at www.thehindu.com/opinion/op•ed/kiss•of•love•arrests•and•the•hecklers•veto/article6575493.ece, lastvisited on January 28, 2016
[9]ibid
[10]‗Kiss of Love‘ arrests and the heckler‘s veto available at http://www.thehindu.com/opinion/op•ed/kiss•of•love•arrests•and•the•hecklers•veto/article6575493.ec (last seen on 14/05/2015)
- Section 320 of Indian Penal Code, 45 of 1860.
- Editorial, ―Kiss of Love arrests and the heckler‘s veto‖ , The Hindu on 08/09/2014. [13]ibid
- ibid
- Section294ofIndianPenalCode,45of1860states,
“Whoever to the annoyance of others,
- Does any obscene act in any public place,or
- Sings, recites or utters any obscene songs, ballads or words, in or near any publicplace,
Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or both.”
- State vs. Manmohan Kalra & Ors., FIR No. 391/2006, on 31May,2014. [17]The Pearson Guide to LLB Entrance Exam,Pg.43
[18]Available at https://indconlawphil.wordpress.om/2014/02/07/obscenity•the•supreme•court•discards•the•hicklin•test/, last visited on January 28,2016.
[19]2006 (8) SC 255
[20](2014) 4 SCC 257
[21]Ranjit D. Udeshi vs. State of Maharashtra, AIR 1965 SC 881 [22]ChandrakantKalyandasKakodar vs. State of Maharashtra, (1969) 2 SCC 687
[23](2010) 5 SCC 600
[24]See also Samresh Bose vs. AmalMitra, 1985 (4) SCC 289 [25]AveekSarkar vs. State of West Bengal, 2014 SCC 257 [26]AIR 1965 SC 881
- http://www.manupatrafast.in/pers/Personalized.aspx
- The Supreme Court of India responded to a petition filed by Richard Gere to quash the arrest warrant issued by Jaipur HighCourt.
[29]A and B vs. State Thr. N.C.T of Delhi and Anr., 2010 CriLJ 669; in this judgement the High Court ordered for a disciplinary action against the SI who arrested the couple.
[30]AIR 1959 SC 149
[31]Act 46 of 1983
[32]2008 Cr LJ 4107 (Del)
[33]Article 19 ofthe Constitution of Indiastates―Protection of certain right regarding freedom of speech,etc.
- All citizens shall have theright
- To freedom of speech andexpression;
- To assemble peaceably and withoutarms;
- To form associations orunions;
- To move freely throughout the territory ofIndia
- To reside and settle in any part of the territory ofIndia;
- Omitted
- To practise any profession, or to carry on any occupation, trade orbusiness.”
[34]AIR 1961 Sc884, 1961 SCR (3) 423
[35](1989)(2) SCC 574 [36]2006(4)ALD374,2006(4)ALT188
- Available at http://www.thehindu.com/opinion/op•ed/kiss•of•love•arrests•and•the•hecklers•veto/article6575493.ece(lastseen on14/07/2015)
- ibid [39]ibid
- Section 268 of Indian Penal Code,1860 specifies that public nuisance cannot be excused even on the ground of‗convenience‘.
DECLARATION OF JUDGES ASSETS
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Harshita Singh
Asstt. Prof. Amity University, Noida (U.P) Email ID: hsingh5@amity.edu
ABSTRACT
There are many problems which Indian Judiciary is facing at present. One of those problems is the issue of judicial accountability. Judiciary is considered as the important organ of the Government of which the people has utmost regard to. On the failure of the other two organs of the Government viz Legislature and Executive, it is the Judiciary which acted as the last savour for the people and saves the bud of democracy. It is in this context the issue of declaration of judges assets can beseen.
Judiciary in India is considered as the role model and trendsetter for the other two organs of the Government as well as the people. Hence it is high time for this organ of the Government, to clear itself of the controversies which have surrounded it. By declaring the assets to the public it will only further this cause and strength people‟s faith in constitutional setup. Hiding information will cast doubts on its integrity and honesty. As it is rightly said she should not only be pure but also appears to be pure.
Keywords: Judiciary, Legislature, Executive, democracy, judge‟s assets.
INTRODUCTION
The higher judiciary consisting of Supreme Court and High Courts are responsible for addressing the grievances of the people and upholding their fundamental rights. In the system of checks and balances incorporated in the Indian Constitution, the higher judiciary is empowered to exercise an effective control over the unconstitutional and unlawful activities of Legislature and Executive[1]. Especially in the midst of the rapid deterioration in the functioning of executive and legislature due to various reasons that includes corruption, criminalization of politics, drop in ideological and moral standards; that the role of judiciary and people‘s expectations from it increasedmanifold.
Among the three branches of the government viz. the legislature, executive and the judiciary, it is a truism that the judiciary commands the greatest popular respect and generates the greatest popular confidence. However, there have emerged some grey areas too. In recent times the judiciary has also come under the grips of corruption and malpractices. It is in this context the question of judicial accountability has emerged as a major concern. Adding further to the problems is the recent controversy relating to the public disclosure of the details of the assets and liabilities of the members of the judiciary. It picked fire with the latest judgments of Central Information Commission (CIC) and such is the impact that if not adequately addressed can cause irreparable damages to the image of thejudiciary[2].
PRESENT CRISIS
The present crisis facing the judiciary relates to the demand for greater transparency in the form of revelation of the details regarding the status of the declaration of the assets of the judges of theapex
court came with a Jan. 6, 2009 order of CIC. The full committee of CIC headed by Wajahat Habibullah ruled that Supreme Court and High Courts are ―public authorities‖that come under the purview of the Right to Information (RTI) Act and asked the apex court to disclose within 10 days if its judges have ever declared their assets. H.C Aggrawal, the petitioner, had applied to the apex court for a copy of a full court resolution passed on May 7, 1997, prescribing ―every judge to make a declaration of assetsin the form of real estate or investments held in their names or in the name of their spouses and any person dependent on them to the Chief Justice‖. He had also asked if judges had complied with Resolution and whether any High Court judge had ever declared his assets to his respective Chief Justice. The Supreme Court had parted with the copy of the resolution, but stonewalled the other queries. It was in this regard that the CIC order was issued. The CIC rejectedtheSupremeCourt‘scontentionthatthisinformationwasfilledbyjudgeswiththeCJI ina―voluntary andconfidentialmanner‖,andheldbythelaterinhis―personalcapacity‖owingtothe‗fiduciaryrelationship‖ among members of the Bench. The commission explained that it was the responsibility of the CJI and Chief JusticeofHighCourtstoembraceandenforcetransparencyintheirhighofficesinaccordancewith―unique status and position‖ the RTI Act gave them. The CIC also rejected the apex court‘s position the CJI and the Supreme Court registry is separate entities. However, the apex court expressed strong reservation regarding the order and the Supreme Court has filed an appeal before the Delhi High challenging it and contended that declaration of assets by the judges to the CJI is governed by an informal Resolution and wasn‘t mandatory under law. It also reiterated that the CJI was not a public authority under the RTI Act. The apex court argued that the information, which is not in public domain, can‘t be given to applicants under RTI Act. The apex court judges also expressed concerns over possible misuse of suchinformation.
However, the Supreme Court‘s stand has received severe criticisms from various corners. The then Lok Sabha speaker Somnath Chatterji has been very vocal in his critic of the apex court‘s lack of transparency; and noted jurist Fali S Nariman, causing a major embarrassment to the Supreme Court, has turned down the request of the Delhi High Court to act as amicus curie in the case stating that his support for the declaration of judges assets is wellknown.
Public Ethics Law in Argentina requires public officials to disclose assets and people can access it easily
All public officials in Argentina are required to file affidavits regards their assets with the appropriate authorities under the Public Ethics Law (No. 25. 188) enacted by their Parliament in 1999. Declarations on affidavit are required to be filed within 30 days of assuming office and thereafter every year until the official remains in service[3]. This procedure applies to all public functionaries, including members of the judiciary at all levels (Art. 5). Public functionaries are required to declare a detailed list of all things they own domestically and abroad (Art. 6). They must also declare things owned by their spouse or partner and minor children in a similar manner. This list must include all movable and immovable property, value of shares owned, other investments made, bank deposits etc. Details of all types of bank accounts and safe depost vaults and income tax returns filed with the authorities must be given in a sealed envelope. All affidavits are then filed with the National Commission for Public Ethics. A list of persons who have filed affidavits in this manner is required to bepublishedinArgentina‘sofficialgazette.Nonsubmissionofaffidavitsinatimelymannercanleadto
departmental action and penalties under the law. Any person may file an application seeking a copy of any affidavit filed in this manner, stating his/her name, contact details, details of the organisation if copies are being sought on its behalf; the purpose for which the information is being sought and the final use to which the affidavit will be put (Art. 10). The request or may not use the copies of affidavits for any criminal purpose, or for commercial purpose such as determining the credit rating of the official, or for seeking donations for political or charitable purposes. Misuse of the information is punishable by a fine of 500•10,000 pesos by the National Commission on Public Ethics (Art. 11) However the requestor may publish the information contained in the assets declaration through the media for educating people. Obviously the contents of the sealed envelope will not be made public except to the appropriate authorities in the context of false declaration or corruption cases.
JUDICIARY ACCEPTS THE PRINCIPLE OF ASSETS DISCLOSURE FOR JUDGES IN 2007
While coverage of all public officials in the government went undisputed, the judiciary resisted making such declarations for a long time. The Supreme Court had even issued a ruling in 2000 stating that the public ethics law did not cover the judiciary. However the Judicial Council (Consejo de la Magistratura in Spanish) through a series of actions culminating in 2007 passed a resolution stating that judges will be required to file assets declaration in the same manner as other public officials.. If Argentinian soya bean oil is good enough for consumption in India, perhaps their practice of assets declaration in the judiciary may not hurt if adapted here. Such declarations are essential for establishing and maintaining high standards of probity for public officials such asjudges.
IN FAVOUR OF
It is in public interest that the judges volunteer to declare their family‘s financial assets to the public even if they cannot be compelled to do so. Such declaration will boost the image of judiciary as a clean organization and help enhance the popular faith in judiciary. It is a fact that corruption is on increase in judiciary[4]. The lower courts and even a few High Courts judges have also been directly or indirectly found to indulge in corrupt practices. Any such effort by the higher judiciary to reveal the details regarding their assets in public will thus be a step in the right direction and may help nip the growing problem of corruption in the bud[5]. It is often argued that what real use is of such information held by the CJI in private, if it is not shared in public? It needs to be understood that such unnecessary secrecy breeds corruption and fosters suspicion in the minds of the public and leads to criticism[6].
From 1996 onwards, judges have exhorted in case after case that transparency is necessary in public interest. It has in a number of judgments established the right of the people to know the various details of the officials. It also needs to be noted that the judges are public servants within the meaning of the Prevention of Corruption Act, 1988. So what is that stops the judiciary in practicing something which it has for a long time preached?[7]Such public disclosure is already required of legislature and executive branches of the government. Election Commission requires all candidates in parliamentary and state level polls to place their assets on record for public scrutiny. In executive wing, similar demands are also made not just on ministers but on civil servants too[8]. Is there any reason why the judges too should not be asked to followsuit?
Declaration of one‘s assets is not really interference by other wings of the government. It is, if anything, a healthy precaution taken to ward off such intervention[9].
The Supreme Court should be the most accountable institution in a democracy because of its role as a watchdog and guardian of the constitution. Indeed, judges must be held to standards that are higher than other government officials[10]. The apex court needs to be the first to embrace the ethics of transparency and accountability and hence should voluntarily disclose assets of judges. There has been considerable controversy in recent times on corruption in judiciary. It would be in the judiciary‗s interest to quell such talk by disclosing assets ofjudges.[11]
AGAINST
The judges of higher judiciary argue that such information if placed in public domain may be subject to misuse by vested interests and may be used to unnecessarily pressurize and harass the judges. That until there is a law regarding it; there can be no legal duty on the judges to declare the details regarding their assets. It has also been argued that the apex court judges are much above the fray and dragging them unnecessarily into such controversies is not in the interest of upholding the image of judiciary as an upright and fair institution[12].
PRESENT SCENARIO
Though the apex court led by CJI has been adverse to such public declarations owing to the fear of misuse of such information, a number of judges in the apex court have however expressed their willingness to make such declarations to steer the higher judiciary clear of any criticism. The CJI has also been stating that any judge if he/she so wishes can make such declarations in his/her individual capacity. Recently the Supreme Court registrar has put before the Delhi Court, during the hearing the hearing of appeal against the CIC order which has been stayed by it, that the apex court judges are not opposed to making public, details of their assets. However, they will do so only as per the procedure laid down by law so as to avoid its misuse. The apex court wants that the law should prescribe the authority to which the declaration would be made; the form in which thedeclarationwouldhavetobemade;acleardefinitionofwhatconstitutes―assets‖andpropersafeguardsto prevent misuse of suchinformation.
The Delhi High Court on 2 Sept. 2009 said that the Chief Justice of India is a public authority under the RTI Act, which means that asset declaration is covered by the RTI Act under Section 81 (A). This comes after SC judges had decided to make their assets public. The only question was whether judges would entertain questions from the public under the RTI Act. A petition was filed by the apex court in the Delhi High Court challenging the Central Information Common Order which had questioned whether the judges revealed their assets to the Chief Justice of India. Political parties and legal experts had welcomed the move of the Supreme Court judges to make public the details of their assets. Union Law and Justice Minister M. Veerappa Moily said:―Iftheyhavecomeforwardtodiscloseit,itiswelcome.Itisforthejudgestodecidehowitshouldbe done because what is best in the interest of the judges, they are the best judge.‖ Welcoming the move, BJP spokespersonRaviShankarPrasadsaid:―Iamafraidthatthisdecisioncouldhavebeentakenearlierandthe unfortunatecontroversyoverthelastcoupleofmonthscouldhavebeenavoided.‖Congressspokesperson
Abhishek Singhvi said the judiciary has avoided ―further needless controversy, but it could have been avoided if the decision was taken earlier‖.
REALITY CHECK
Thus the higher judiciary which is already going through a rough patch has found itself once more getting involved in a fresh controversy. The order of CIC has found the apex court in a strange position, defending its stand before a High Court[13]. Further, the above analysis clearly points out to the fact that there are enough reasons for the Supreme Court judges to come before the public with the details regarding their assets and liabilities[14]. Any such move will not only prevent instances of corruption in judiciary but will also enhance public faith and confidence in the judiciary. The Parliament also needs to frame an appropriate law requiring the judges to declare the details regarding the assets and also contain adequate safeguards to prevent their misuse[15].
REFERENCES
- [1]R Krishna Iyer, The Majesty of Judiciary, Universal Law Pub.Co.,2007,pp•234•235.
- [2] Prashant Bhushan, The Lack of Judicial Accountability in India, Talk delivered in Princeton University, on Mar. 10, 2009 at the Dept. of South Asian Studies.
- profesorgentile.com.ar/leyes/25188.html.
- Param Kumarswamy, Judicial Accountability, Speech delivered in Chennai on Nov.2004.
- Prashant Bhushan, Securing Judicial Accountability: Towards an Independent Commission, Economic and Political Weekly, Oct. 27, 2007,p•17.
- Amartya Sen, The Idea of Justice, Penguin Books Ltd., 80 Starand, London, WC2R, ORL, England (2009), pp•345•346.
- Upendra Bakshi, Judicial Discourse: Dialectics of the Face and Mask, Journal of Indian Law Institute, Jan•Jun., Vol. 35 (1993),p•24.
- [8]Justice M. Rama Jois, Legal and Constitutional History of India, Universal Law Publishing Co. Pvt. Ltd., Delhi (2004),pp•124•126.
- Shimon Shetreet & Jules Deschenes, Judicial Independence: The Contemporary Debate, Martinus Nijihoff Publishers, 1985,pp•311•312.
- H Russel & David M O‘Brion, Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World., Vo. 11, 2001, pp•589•591.
- Gareth Griffith, Judicial Accountability, NSW Parliament Library, 1998,pp•498•499.
- Hakeem Yusuf, Transitional Justice,Judicial Accountability and the Rule of Law, Routledge Publications, 2010,p•192.
- Daniela Piana, Judicial Accountabilities in New Europe, Ashgate Publications, 2011,p•376.
- Matthew V Flinders, The Politics of Accountability in Modern State, Ashgate Publications, 2001, pp•222•223.
- Guy Canivet Mads & Tennesson Andenaes & Ducan Fairgrieve, Independence, Accountabilty and the Judiciary, British Institute of International and Comparative Law, 2006.
DECRIMINALIZATION OF LGBT
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Kislay Raj
BBA.LL.B (H)
6th Semester
Amity Law School, Noida (U.P) Email ID: kislayraj.95@gmail.com
ABSTRACT
The Times Square, New York, observed thousands of people do Yoga on the International Yoga Day on June 21, 2015. Yoga surely traces its roots back in India but has crossed the borders. This is the best example to show how culture travels across the world. Often we try to obstruct the wind that brings about the change. This iswhatwecallas„moralpolicing‟.MoralPolicinghasbeenpartandparcelofoursocietyforalongtime.But, recently there has been an outcry among the citizens to fight back this evil. It won‟t be wrong to call it a shield for the vigilante groups, who impose their perspectives and ideologies on others. They seem to believe themselves to be the guardians of the Indian Culture. The question which arises here is whether our country after 68 years of independence needs to morally direct the new generation. Lately, India has been very resistant to change which has pushed the question of legalising same sex marriage or even a mere recognition to them at theedge.
This paper deals with the detailed analysis of same sex marriages. Also, a special mention of the UNO‟s stand on the issue is made. The major hurdles India faces in decriminalization of the same sex marriage are alsodiscussed.
Key words: LGBT, Decriminalization, UNO, Section 377, Moral Policing, NAZ Foundation
INTRODUCTION
It is important to know the literal meaning of a Lesbian, Gay, Bisexual and Transgender. According to Merriam Webster dictionary a lesbian is a woman who is sexually attracted to other women (a female homosexual)[1]; a gay is a person who is attracted to same sex (especially man)[2]; a bisexual are those who are sexually attracted to both men and women and a transgender are those people who have a sexual identity that is not clearly male or female[3].
A question often comes up is, whether these people are like other people who have liking only for opposite sex. The image created by certain vigilante groups who wage a war against these people, under the garb of moral policing and god‘s natural law, is that they are not normal. It is therefore important to know about theirrights
STAND OF UNO ON LGBT
United Nations Organisations has made its stand crystal clear. It is well settled in human rights law that it is State who has the responsibility to protect the rights of LGBT people. Various human rights treaties had reiterated the same principle. The High Commissioner has stated,‖ The principle of universality admits no exception. Human rights truly are the birth•right of all human beings‖[4]. It has recommended five steps by which the rights of the LGBT people can be protected and enforced. These are as follows:
ü Protect: LGBT people has to be protected from any kind of transphobic and homophobic violence. Sexual orientation and gender identity should be included as protected characteristics in hate crimelaws.
ü Prevent: LGBT persons needs to be protected from any kind cruelty or inhuman treatment or physical or mental harassment. They should not be tortured their grievance should addressed. Law enforcing agency should be more vigilant and should be given propertraining.
ü Repeal: The laws by which homosexuality has been criminalized should be repealed. There should be decriminalization of homosexuality. Sexual orientation and gender identity should not be the basis on which any person should be arrested or detained.
ü Prohibit: Any kind of discrimination either on the basis of sexual of their gender identity or sexual preference must not be promoted or rather it should be prohibited. LGBT people should be given proper
education and health facilities and no discrimination should made in providing other basic facilities to them.
ü Safeguard: Basic rights of the LGBT persons like freedom of expression, peaceful assembly and association should be safeguarded. If there is any restriction is put to these rights, it must be in consonance with the international laws and must not be discriminatory.
CRIMINALIZATION OF HOMOSEXUALIY
Those laws which makes homosexuality an offence violates or infringes individual‘s right to be free from discrimination which is apparently mentioned in Art. 2 of Universal Declaration of Human Rights and core international human rights treaties. These laws which are not strictly enforceable but are still an obligation under international human rights law. Here are the articles from international human right laws on the basis of which it can be said that states are under obligation of decriminalization ofhomosexuality.
UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948[5]
Art.2 states that ―everyone isentitled to all the rightsand freedomsset forth in thisDeclaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion national or social origin, property, birth, or otherstatus‖.[6]
Art. 7 states that, ―all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination‖[7].
Art. 12 states that, ―no one shall be subjected to arbitrary interference with hisprivacy, family, home or correspondence, or to attacks upon his honour andreputation‖.[8]
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966[9]
Article2(1)statesthat,―eachstatepartytothepresentCovenantundertakestorespectandto ensuretoall individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status‖[10].
Further, Art. 9 states that ―everyone hasthe right to libertyand security of person.No one shall be subjected to arbitrary arrest or detention. No one should be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law‖[11].
Art. 17 states that,‖ no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation‖.[12] There are minimum of 76 countries in this blue planet where consensual relationship with the same sex is a criminal offence[13].HumanRightsCommitteeinthecaseToonenv/sAustralia[14]decidedthatitwas
―undisputed that adult consensual sexual activity in private is covered by the concept of ‗privacy‘ under Art. 17 of International covenant on Civil and Political Rights.[15]It didn‘t matter that Mr. Toonen, the author of the communication has never been prosecuted. The mere existence of the criminal law continuously and directly interferes with the author‘s privacy.‖[16] Thus the stand of UNO and Human Rights Committee is quite clear. They are in favour not treating anybody in inhuman way irrespective of sexual orientation and gender identity
INTERPRETATION OF SEC. 377 OF IPC
AccordingtoKennedyA.J.C.―Sec.377ofIPCpunishescertainpersonswhohavecarnalintercourseagainst the order of nature inter alia human beings…..[if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case coitus per se is impossible.‖[17]The court used the reference to the Corpus Juris Secundum relating to sexual perversity[18]and abnormal sexual satisfaction as a criterion to determine the extent of Sec. 377. It is evident that the tests for attracting penal provisions have changed from the non•procreative[19]to imitative to sexualperversity.
The Sexual Offences Act, 1967, decriminalized homosexuality and acts of sodomy between consenting adults[20] under English Law. This was pursuant to a report made by Wolfenden Committee. The Committee had advised the Parliament to repeal the laws punishing homosexual acts. It is averred that no aspect of one‘s life may be said to be more private or intimate than the sexual relations he has, and thus violative of Art. 21 of the Indian Constitution. Since these are private, consensual sexual relationships,
preferences are prominently within a person‘s personality and thus lie at the core of his ‗private space‘. It would be difficult to alienate such feelings.
There are two essentials[21]to attract Section 377[22]of IPC. They being:
- Carnal[23]intercourse
- Against the law of thenature.
It is evident that this section criminalizes the marriage of gays, lesbians and trans•genders. The view of the Hon‘ble High Court is expressed in the Naz Foundation vs. Government of NCT of Delhi[24]. It is a landmark judgement in which the High Court declared Section 377 as unconstitutional, to the extent that it criminalizes the consensual sexual relationship between adults in private being violative of Article 21[25], 14 and 15 of the Indian Constitution. The Supreme Court, however, overruled the judgement of Delhi High Court, holding that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling under this category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification[26]. What this section does is merely to define the particular offence and prescribe punishment for the same which can be awarded if the trial is conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty.[27]Therefore Section 377 IPC is not ultra vires Article 14 and 15 of the Constitution. It is also observed by the Supreme Court that the Court merely pronounced on the correctness of the view taken by the Delhi High Court on the Constitutionality of the section and found that the said section does not suffer from any infirmity constitutionally.[28]Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the Statute books or amend thesame.[29]
Naz Foundation is a Non•Governmental Organization which filed a Public Interest Litigation on the said grounds. Their plea was that Section 377 of IPC should apply only to non•consensual penile non•vaginal sex and non•vaginal sex involving minors.
The NGO works in the field of HIV/AIDS Intervention and Prevention. They come across a lot of people while doing this noble job. Homosexuals are largely vulnerable to HIV/AIDS. The discriminatory attitude exhibited by state agencies towards gay community compelled the NGO to stand•up for the cause. The discriminatory attitude by the public and public authorities to this small minority group has resulted their abuse, harassment and assault.
The deep rooted thought that marriage is conjugal bliss to procreate children is wrong. The notion that nature supports only things that can give a fruitful result over time is wrongly practised. It is because of these that any nonprocreative activity is termed as unnatural. It won‘t be wrong to say that by criminalising private, consensual samesex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards samesex relations and sexuality minorities; which consequently drive the activities of gay men, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts.[30]Consequently, a vulnerable section of the society is created which is victimized at all points of time. The vigilante groups, holding the flags of culture, treat these people as sick people.
We have Yoga gurus calling such people to do Yoga and be healed. We have politicians who call it a disease and call it a result of westernization. It is important to mention here that psychologists and psychiatrists, no longer consider it to be a disease. Such likings and inclinations towards a particular sex are a part of a person‘s identity.
The works of various social activists and celebrities in order to promote awareness about such minorities is commendable. The perspectives of people are changing. The post of various jurists condemning the gay rights, are highly criticized over the social media. This shows the sea change of ‗contemporary standards‘ in the Indian society.
LGBT is one group which has always been suppressed in the name of moral policing. People are not very keen to accept the members of LGBT community, though few recent judgements in India and U.S. have recognized their rights. In the case of National Legal Services Authority v/s UOI and Ors.
[31],it was held that transgender are third•gender and both state as well as central government were directed to give recognition to their gender identity such as male, female or as third•gender. U.S. apex court has also recognized same sex marriage and has made it legal. Thus in a progressive society we must act according to the situation and demand of the hour and no such policy should be continued which may hamper the growth of society, county andhumanity.
CONCLUSION
The intolerance of the Indians towards LGBT has led to movement of many couples to migrate to western countries. Parliament is afraid to take up issue related to same sex marriage in India because of the stubborn approachof‗moralpolice‘.PeopleareafraidtorevealtheirtrueidentitiesinIndia,fearingtheresponsetowards them. The intolerance of people in India is so high that the risk of communal riots is present at every juncture. In a country where marriage to a different caste opposite gender person is legally permissible but communally impermissible, it will be hard to get an acceptance amongst citizens for LGBT Marriages. These communally active groups hinder the growth of citizens by assuming the guise of moral police. We need to have a more modernistic and reasonable approach on this burning topic and the Hon‘ble Supreme Court as well as the legislature should take a firm stand on it. Change is the law of nature and adaptability is the key to survival in any kind of change. It is high time, we must realize the new needs of thesociety.
REFERENCES
[1]Available athttp://www.merriam•webster.com/dictionary/lesbian(last visited on 11/07/2015) [2]ibid
- ibid
- Addressed by United Nation High Commissioner for Human Rights Navi Pillay, 63rd session of the General Assembly, New York, 18/11/2008; See alsohttp://arc•international.net/wp• content/uploads/2011/09/Advancing•SOGI•issues•HRC10.pdf(last visited on 28th , January,2016)
- India voted in favour of this Universal Declaration of Human Rights, 1948 on 10/12/1948 [6]Article2ofUniversalRightsDeclaration,1948;Seealso:http://www.un.org/en/universal•
declaration•human•rights/(last visited on 28th January, 2016).
- Article 2 of Universal Rights Declaration, 1948; See also:http://www.un.org/en/universal• declaration•human•rights/(last visited on 28th January,2016).
- Article 12 of Universal Rights Declaration, 1948; See also:http://www.un.org/en/universal• declaration•human•rights/(last visited on 28th January,2016).
- India has ratified International covenant on Economic, Social and Cultural Rights, 1966 on 10/04/1979.
- Article 2 (1), International Covenant on Civil and Political Rights,1966., See also: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx(last visited on 28th Janauray,2016) [11]Article 9,ibid
- Article 17,ibid
- State•sponsored homophobia: a world survey of laws criminalizing same sex sexual acts between consenting adults, International Lesbian, Gay, Bisexual, Transgender and Intersex Association (IGLA), Brussels, May 2011,p.9.
- Toneen v/s Australia, Human Rights Committee Communication No. 448/1992, CCPR/C/50/D/488/1992, 04/04/1994 at para8.2.
- Adoptedandopenedforsignature,ratificationandaccessionbyGeneralAssemblyresolution2200A
(XXI) of 16 December, 1966 entry into force on 23/03/1976. India ratified it on 10/04/ 1979. [16]Born Free and Equal available
athttp://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf(last visited on 28th, January, 2016)
- Khanu vs. Emperor, AIR 1925 Sind286.
- In the case of Fazal Rab Choudhary vs. State of Bihar, 1983 CriLJ 632(SC), the Court observed that Section 377 included ‗sexualperversity‘.
- Earlier oral sex was not included under the purview of Section 377 but with due course of time, in Lohanna Vasantlal Devchand vs. State, AIR 1968 Guj 252, it was termed as unnaturaloffence.
- The age for consensual sex was made as 21 years.
- Cildline India Foundation vs. Allan John Waters, 2011 CrLJ 2305 (SC); (2011) 6SCC 2305 [22]Sec377.―Whoevervoluntarilyhascarnalintercourseagainsttheorderofnaturewithanyman, woman or animal, shall be punished with the imprisonment for life, or with imprisonment of either a description for a term which may extend to ten years, and shall also be liable tofine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
[23]According to Concise Oxford dictionary, carnal means ―of body or flesh; worldly‖ and ―sensual, sexual‖ [24]2010 CrLJ 49(Del)
- Right to life incorporates the implicit right of citizens to have a right toprivacy.
- Suresh Kumar Koushal and another vs. Naz Foundation and others, (2014) 1 SCC1 [27]ibid
[28]ibid [29]ibid
- As mentioned in the plea of NazFoundation.Ibid.
- Writ Petition (Civil) No. 604 of2013
RETROSPECTIVE OPERATION OF LAW
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Niharica Khanna
BBA.LL.B (H)
6th Semester
Amity Law School, Noida (U.P) Email ID: niharica.khanna13@gmail.com
ABSTRACT
Retrospective operation of law implies to the application of law to facts or actions which existed prior to the enactment of the said law. Such laws change or alter the legal consequences of acts which took place prior to its enactment. A retrospective law takes away or impairs an existing right by creating or imposing a new liability for an act committed before the enactment of a law. However retrospective operation of law does not apply to penal provisions. A retrospective legislation is contrary to the general principle of prospective operation of law which regulates future acts without changing the character of past transactions carried on upon the faith of the then existing law. Article 20 (1) of the Constitution of India provides protection against retrospective operation of law commonly known as ex post facto law which changes the legal consequences of actions committed before the enactment of the law. The question which is faced during the applicability of retrospectively is whether a statue or law should be given a retrospective effect which takes away or impairs an existing right or impose a new liability.
Key Words: Retrospective, ex•post facto law, criminal liability, application
INTRODUCTION
―Retrospective‖ generally means to take a look back at events that already have taken place.[1]The term is used in situations where the law (statutory, civil, or regulatory) is changed, altered or reinterpreted, affecting acts committed before the alteration. When such changes make a previously committed lawful act unlawful in a retroactive manner, and are known as an ex post facto law or retroactive law[2].
Retrospective operation of law therefore means application of law to facts or actions which exist even prior to the date the said law is promulgated. It takes into its ambit activities existing prior to the date of the new law and thus operates from a date earlier than the date they come intoeffect.[3]
APPLICATION OF RETROSPECTIVETY
In most legal systems, retrospective laws which punish the accused for acts, that were lawful when committed, are rare and not permissible. More commonly, changes retroactively worsen the legal consequences (or status) of actions that were committed, or relationships that existed, by bringing it into a more severe category than it was in when it was committed; by changing the punishment or recompense prescribed, as by adding new penalties, extending sentences, or increasing fines and damages payable; or it may alter the rules of evidence in order to make exoneration more difficult than it would have been. On the otherhand,retrospectivelawswhichdealwithamnestymaydecriminalizecertainactsandgrantpardonby
reducing punishments or change possible consequences for unlawful acts retroactively by repealing previous laws and making it no longer applicable to situations to which it previously was, even if such situations arose before the law was repealed.
A Law does not become retrospective, only because a part of the requisite for its action is drawn from a time antecedent to its passing. In some cases where a new offence is created or a penalty is increased,the legislature is not prevented from enacting an ex post facto law, but if any such law takes or impairs any vested right acquired under an existing law or creates a new obligation, imposes a new duty or attaches a new disability in respect to the transactions on considerations already past, such laws must in express terms state that it is to be applicable retrospectively and the necessary implication of such retrospectively shall be borne out from the language employed by theLegislature.
EX•POST FACTO LAW
The term Ex•Post Facto, retroactive and retrospective are synonyms in judicial use and such terms makes the law look backs on acts which have already taken place. It changes the legal consequences of past events as if the law had been different when the event took place and imposes retrospectively upon acts already done or increase penalties. In relation to criminal law, it may criminalize actions that were legal when committed or it may aggravate the crime by bringing it into a more severe category than it was before or it may increase the punishment of a crime by adding new penalties or extending the terms or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.
A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed.Ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most jurisdiction do not permit retrospective legislation to come into force, though some have suggested that judge•made law is retrospective as a new precedent applies to events that occurred prior to the judicial decision.The principle of prohibiting the continued application of these kinds of laws is also known as nullumcrimen, nullapoena sine praevialegepoenali, which means that there exists no crime and no punishment without a pre•existing penal law. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may beprohibited.[4]
CRIMINAL APPLICABILTY
Mostly applicability of Ex•post facto laws to criminal liability is frowned upon. A canon of interpretation of penal provisions does not permit penal provisions to have retrospective effect of law. A penal character in certain offences makes certain offences punishable as offences for the first time, usually no case is maintainable under such a circumstance as respect to acts done before the commencement of such an act. To punish a person for his act which was not an offence at the time of committing the act, a subsequent legislation which came into
operation after the commission of the act will per se be unconscionable besides amounting to negation of fair play and justice.
The Apex Court in Vijay vs. State of Maharashtra[5]held that penal statues which creates new offences are always prospective, but penal statues which create new disabilities, though ordinarily prospectively are interpreted to be retrospective in nature where there is a clear intendment that they are to be applied to past events.
VALIDITY OF RETROSPECTIVE LAW
The Constitution of India does not permit retrospective operation of an act or law, unless there is a necessary implication in law stating that the law is retrospective in nature. A law which is held retrospective but it is not specifically implied in the act would be held to be invalid or unconstitutional. Article 20 (1) of the Indian Constitution provides for protection against retrospective operation of law commonly known as ex post facto law which changes the legal consequences of actions committed before the enactment of the law. The Supreme Court has pronounced many judgment in respect of retrospective operation of laws. In Hitendra Vishnu Thakur vs. State of Maharashtra[6] , the Court laid down the ambit and scope of an amending Act and its retrospective operation The Court held that a statue which affects substantive right is presumed to be prospective in operation unless expressly made retrospective. A procedural law should not be allowed to operate retrospectively and a statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication.
A Constitutional Bench of the Hon‟ble Supreme Court in Income Tax Commissioner vs. Vatika Township Private Ltd.[7]held that a legislation cannot be presumed to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow‘s backward adjustment of it. The Constitutional Bench set out the general principles concerning retrospectively and concluded that of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The Court held that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lexprospicit non respicit[8] i.e. law looks forward not backward. A retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. The obvious basis of the principle against retrospectively is the principle of ‗fairness‘, which must be the basis of every legal rule. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. The Hon‘ble Court held that the rule against a retrospective construction is different. If alegislation
confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. The doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The presumption against retrospective operation is not applicable to declaratory statutes which remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended[9]CONCLUSION
It is now settled that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospectively and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. To sum up, it is now settled and confirmed by a Constitution Bench of the Hon‘ble Supreme Court, that unless the language of the statute expressly so provides it can only be construed to be prospective in its operation, the only exceptions being in case of declaratory or clarificatory amendments orstatutes.
REFERENCES
[1]http://legal•dictionary.thefreedictionary.com/retrospective [2]http://www.thefreedictionary.com/retroactive
[3]Constitution of India by M.P JAIN [4]http://www.legalserviceindia.com/article/l293•Ex•Post•Facto•Laws•and•Indian•Legal•Scenario.html [5]http://indiankanoon.org/doc/207765/•1965 SCR (3) 358
ü (1994)4 SCC602
ü (2014) SCC1
- http://legal•dicthefreedictionary.com/Lexprospicit
- Constitution of India – M. P Jain
EQUAL PROTECTION OF REFUGEE IN A NON– SIGNATORY STATE
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Dr. Priti Pandey
Asst. Prof.
Amity Law School, Noida E•mail:ppandey1@amity.edu
ABSTRACT
As the ever increasing gap between the theory and practice of human rights of refugees assumes the form of a crisis, it is significant to identify the reasons for the crisis and to propose some solutions. Since the situation is worst in states which are non•signatories to the Refugee Convention and thus without a concrete source of obligation, it becomes imperative to diagnose the situation of refugees in such states. Among such countries India is important because it hosts refugees from countries ranging from Asia to Africa. This paper aims at identifying the problems that prevent achieving equal protection for refugees in India. It also aims at identifying the sources of obligation for India to ensure equality for the refugees. Succinctly, the aims and objectives of the present paper are three fold, firstly,to provide a detailed analysis of the existing legal framework which aims at ensuring equal protection for refugees. Secondly,to categorise the legal principles, legal provisions and judicial decisions which aim to ensure equal protection for refugees in India and thirdly, to analyse the conditions of refugees in India and discriminatory practices towards them with an aim to identify the possible ways to negate discrimination, ifany.
In this way, this paper aims at establishing that the difficulties in providing equal protection to refugees are deeper than previously thought. It aims to emphasize that the normative quality of law, with justice as its ultimate objective, is an important tool to alleviate the conditions of refugees.
Key Words: Refugee Convention, Equal Protection for Refugees, Normative quality of Law
INTRODUCTION
‗All individuals, solely by virtue of being human, have moral rights which no society or state should deny‘[1]and these rights are rightly denoted as the human rights. They are not mere ethical yardsticks[2]to measure a government‘s function or degree of civilization; they embody the very idea of equality, justice, human dignity. Human rights, like natural rights, are alleged entitlements that empower and protect individuals because they are persons and not merely because they are citizens. They are non•negotiable[3]in nature[4] and equality is a part and parcel of the omnipresent doctrine of human rights. The question of rights of refugees is inextricably linked to the contemporary international human rights law as most of the rights claimed by the refugees are in themselves human rights protected and guaranteed under various international instruments on human rights. These human rights instruments are mainly in the form of General Assembly Resolutions and international treaties and include the Universal Declaration of Human Rights,[5]InternationalCovenantonCivilandPoliticalRights,[6]InternationalConventiononRacial
Discrimination, [7]Convention on the Elimination of Discrimination against Women,[8]Convention on the Rights of Child[9]and United Nations Convention against Torture.[10]
STATES OBLIGATION TOWARDS REFUGEE UNDER INTERNATIONAL LAWS
There existsan opinion to the effect that ―the general principles of law recognized by civilized nations‖, identified as an important source of international law[11], are nothing but the principles of natural law[12]and some think that they are derived from natural law.[13]Further, in the wake of the withering away of the concept of sovereignty[14]it is submitted that the obligation for equal treatment in International law attaches to acts of bodies other than the state itself.[15] Grotius recognized the possibility of international protection of human rights even against one‘s own state. He justified individual rights in international law on the basis of the law of nature. Apart from obligation of states under customary international law towards aliens regarding equal treatment of aliens there exists number of international and regional treaties, declarations and conventions providing certain rights to the aliens. Further, it is a well settled principle under international law that the ‗state in whose territory an alien resides must afford his person and property at least that level of protection which is sufficient to meet those minimum international standards prescribed by international law, and must grant him at least equality[16] before the law with its own nationals so far as far as safety of person and property is concerned. The UNESCO Convention against Discrimination in Education, adopted on 14 December 1960 and enteredintoforceon22May1962definesdiscriminationinArticle9asincluding,―anydistinction,exclusion, limitation or preference which, being based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality or treatment in education‖ and prohibits the same. In the Case concerning certain German interests in Polish Upper Silesia (Merits), it was held that aliens should be treated in a manner similar to the nationals.[17]The European Court of Human Rights has regarded discrimination as existing if there is a difference of treatment without any ‗objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized.‘[18].
STATES OBLIGATION TOWARDS REFUGEE UNDER INTERNATIONAL HUMAN RIGHTS LAW
International Human Rights law outlines the basic universal human rights which are available to all human beings irrespective of his nationality. As most of the rights which the refugee are in need of are basically human rights per se. There are ample provisions under different international human rights instruments providing protection to refugees by conferring upon them different rights. Right to equal treatment is also one among such rights and even if a state is not party to Refugee Convention, if it is signatory to any of the abovementioned instruments the responsibility and obligation of the receiving state stands clear and unambiguous.
UNDER UDHR, ICCPR, ICESCR
Art 1 and 2 of UDHR are provisions in general nature addressing the issue of discrimination.[19]Article 1 reads as, ―All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience andshouldacttowards oneanotherina spiritof brotherhood.‖Article 2providesthat,―Everyone is
entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non•self•governing or under any other limitation of sovereignty‖ Art 3 of UDHR speaks for right to life and liberty.[20]It provides that, ―Everyonehasthe right to life, libertyand securityof person!‖
Though, UDHR has been argued to have the status of soft law, being a declaration, the fact that it has been adopted by overwhelming majority of the nations and that there exist a uniform state practice coupled with the desired opinio juris provides much needed support to the view that it has acquired a status of customary international law and must be adhered to by all nations without fail. Art. 2(2) of ICCPR provides for institutionalizationofhumanrightsprotection. It providesthat,―Wherenotalreadyprovidedforbyexisting legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant‖ Art. 13 recognizesthe rightsof aliensin followingterms, ―An alien lawfullyin the territoryof a State Partyto the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competentauthority.‖
Thus, there exists a clear obligation under ICCPR to provide equal treatment to the refugees. India acceded to it in 9979 with interpretative declarations regarding common Art. 9, Art. 9 and Art. 93. But still the obligation under Article 26 is operative in Indian context.
UNDER ICESR
Art. 3 of International Convention on Economic Social and Cultural Rights is also pertinent here as it aims at ensuring equality. It provides that, ―The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Though, the obligations under ICESCR are also directly concerned with the rights of individuals to be treated equally and their enjoyment of cultural, social and educational rights. India acceded to the Covenant in 1919 with interpretative declarations regarding Art. 4, 8 and 1(c).
UNDER OTHER INTERNATIONAL COVENANTS
Among other relevant provisions are Art 2 and Art 3 of CAT Article 3 of CAT states that ―NoState Party shall expel, return (―refouler‖), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.‖Art.22 of CRC, providing for assistance to refugee child. It states that, ―States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present
Convention and in other international human rights or humanitarian instruments to which the said States are Parties. For this purpose, States Parties shall provide, as they consider appropriate, co• operation in any efforts by the United Nations and other competent intergovernmental organizations or non•governmental organizations co•operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.‖India is a signatory to CRC and it has not placed any reservation to Art. 22 of CRC. This provision makes imperative on part of India to provide protection to the refugee child and his familytoo.
REFUGEE RIGHTS UNDER CONSTITUTION OF INDIA
Indian Constitution is guided by the principle of constitutionalism which embodies in itself certain human rights to all the individuals, and also as the Indian Constitution was drafted almost at the same period when the United Nations was drafting the Universal Declaration of Human Rights so the drafters while drafting have taken into account its provisions also. They are called fundamental rights and are contained in part III of the Constitution. Some of these rights are available only to the citizens while some of them are available to both the citizens as well as non•citizens. Right to equality is one such fundamental right which is available to both the citizens as well as the non•citizens. The Constitution of India guarantees the Right to Equality through Art.14to
- Art.14 guarantees to every person the right to equality before the law or the equal protection of the laws in followingwords;―Article14–Equalitybeforelaw:TheStateshallnotdenytoanypersonequalitybeforethe law or the equal protection of the laws within the territory of India‖ Bhagwati, J. propounded a new approach to Art.14inthefollowingwords:―Equalityisadynamicconceptwithmany aspectsanddimensionsanditcannot be ‗cribbed, cabined and confined‘ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.[21]In the case of Maneka Gandhi v. Union of India27 quoting himself from Royappacase,Bhagwati, J.very clearlyreadthe principle ofreasonablenessinArt.14.Hesaid:―Art. 14strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non•arbitrariness, pervades Article 14 like a brooding omnipresence‖.Apart from Article 14, the Fundamental rights as enshrined under Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the fact whether they are citizens of India or aliens. Art. 51 (c),[22]Art. 51 A (h),[23]Art. 253[24]and Entry 13,[25] 14,260 17261& 16262 of List I read with Art. 246 imposes obligation on the Union of India and the individuals to take concrete steps in order to fulfill its international obligations and to behave with humanism. These obligations are by no means secondary and a change in approach is required to recognize their worth in bringing equality for therefugees.
REFUGEE RIGHTS AND INDIAN JUDICIARY
As for the question of respecting Refugee Law, an analysis of Supreme Court‘s stand on the matter brings to light India‘s interesting position[26]. In the case of Ktaer Abbas Habib AlQutaifi v. Union of India[27]the court held that, the International Conventions and treaties are not as such enforceable by the Government, nor they give cause of action to any party, but there is an obligation on the Government to respect them. It held that the power of the Government to expel a foreigner is absolute. It was recognized that Article 29 of the Constitution of India guarantees right of life on Indian Soil to a non•citizen, as well, but not right to reside and settle in India. It was observed that the international covenants and treaties which effectuate the fundamental rights guaranteed in our constitution can be relied upon by the Courts as facets of those fundamental rights and can be enforced as such. It recognized that the work of the UNHCR being humanitarian the Government of India is under obligation to ensure that Refugees receive international protection until their problem is solved. It was emphatically observed that the principle of ‗nonrefoulment‘ is encompassed in Article 29 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security. It was also observed that, in view of directives under Article 59(c) and Article 253, international law and treaty obligations are to be respected and that the Courts may apply those principles in domestic law provided such principles are not inconsistent with domestic law. The right of refugees to adequate protection and fair treatment was upheld in the case of NHRC v. State of Arunachal Pradesh.[28]In this case, due to deteriorated relations between citizens of Arunachal Pradesh and the Chakmas the latter complained that they were being subjected to repressive measures with a view to forcibly expelling them from the State of ArunachalPradesh.
CONCLUSION
Equality has an embryonic characteristic as it has been developing all over the world, ad infinitum. It serves as the bedrock of justice and is the cornerstone of a just, peaceful and ordered society. The concept of equality has its roots deep in the natural law concept which aims at justice and rationality. As inequality among individuals is an inescapable phenomenon, reasonable classifications are required so that equality is ensured in deed. However, its trajectories have been different and so has been its fate. Equality is well recognized as a part and parcel of ancient Indian culture, though the same has been diluted and virtually lost with the passage of time. The ebb and flow of the movement of equality is unparallel. The study demonstrates the need as well as the reasons for maintenance of equality in the society as it is an essential human right and has transcendental characteristics. Its significance further increases in the context of refugees who flee their country under the fear of persecution and threat of death. There existed a tradition of affording protection and equal treatment to refugees on humanitarian grounds. This obligation had its source in morality, conscience and religion. But, now in the wake of increasing international diplomacy, pursuit of national interests and stress upon sovereignty the obligation for equal treatment is largely watered down inoperation.
In International law, the obligations regarding equal treatment of refugees is well settled and now we need to advance the theories of cosmopolitan theory of justice and cosmopolitan federalism in order to minimize the adverse effects of sovereignty upon human rights aspiration. The doctrine of state sovereignty which has sofar
shielded naturalization, citizenship and denationalization decisions from scrutiny by international and national courts must be challenged in order to establish the omnipresent regime of equality in international law. Narrow sense of identity and a distinct bond of alienage coupled with an all•powerful state eyeing at national interests have led a fatal blow to the legitimate concerns of the refugees. Unfortunately, this is so despite the fact that there exists a clear obligation to provide equal treatment to refugees under International treaty law, customary principles as well as the decisions of national and international courts. Thus, even if a state is non•signatory to the Refugee Convention, there exists an obligation for equal treatment to refugees. Such obligation is to be traced through the general principles of international law, various treaties among nations, principles of customary international law, various human rights treaties and declarations in the forms of soft laws, national legislations and decisions of national and international courts.
The problems pertaining to equal treatment of refugees will have multifarious repercussions as it has already led to a sense of impunity among government authorities in most part of the country. India has the laws and the legal mechanism but the same is under used and sometimes misused. The legal system in India provides for most of the key characteristics of human rights protection and equal treatment but the same has failed here due to the gap in their implementation and due to the reason that it has failed to connect the society with the law. For example, the Constitution of India in itself aims at ensuring all the basic human rights through various provisions ranging from Part III and part IV of the Constitution. Engagement with the law must be one strategy as law is an important component of social organization. In fact, the exploration of legal and social change has a necessary connection in the growing humanitarian concern with the refugees. India stands in need of a movement from within the masses and the role of education in the process is going to be the most vital one. International law stipulates that refugees should enjoy a broad spectrum of rights derived by virtue of their humanity and their particularvulnerability.
As India is not a party to any International Refugee Law instrument, itsobligations under international law are limited to the human rights instruments it has ratified and to the relevant principles of customary international law. These include the principle of non•refoulement and the provision of a minimum standard of treatment that allows refugees to live a life of dignity. India‘s international legal commitments thus encourage the development of an effective domestic legal framework that protects the rights of refugees in accordance with the standards of protection outlined under International Human Rights Law.Developing a strong and streamlined national refugee determination process would demonstrate that India is a modern state capable of dealing with pressing national refugee issues in a consistent and just manner. Creating domestic refugee legislation and a national refugee protection body would also enable the Government of India to assert its sovereignty, by addressing refugee issues through effective national legal mechanisms rather than symbolic international ones.
REFERENCES
[1]David Sidorsky, Contemporary Reinterpretations Of The Concept Of Human Rights, Essays on Human Rights, David Sidorsky (ed.), reproduced in International Human Rights in Context, (New York: Oxford Univ. Press) 27
[2]Carlos Santiago Nino, The Ethics Of Human Rights (New York: Oxford University Press, 1991)
[3]It prohibits an exchange of rights for benefits which cannot be expressed in terms of rights. See John Rawls, A Theory Of Justice Rev. Ed. (Cambridge, MA: Harvard Univ. Press, 1971/ 1999).
[4]For details see Jurgen Habermas, Between Facts And Norms, Transl. W. Rehg (Cambridge, MA: MIT
Press, 1996). See also David Held, Democracy And The Global Order: From The Modern State To Cosmopolitan Global Governance, (Stanford Univ. Press, 1995). See also J. Rawls, Political Liberalism (Cambridge, MA: Harvard Univ. Press, 1996)
[5]Hereinafter referred as UDHR. On December 10, 1948 the General Assembly of the United Nations
adopted and proclaimed the Universal Declaration of Human Rights
[6]Hereinafter referred as ICCPR. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966.
[7]Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965
[8]The Convention was adopted in 1979 by the UN General Assembly,
[9]Hereinafter referred as CRC
[10]Hereinafter referred as CAT
[11]See Art 38(1) of Statue of International Court of Justice.
[12]Such authors include Spiropoulos, Salvioli and Cavagleiri. For details see Bin Cheng, General Principles Of Law As Applied By International Courts And Tribunals, (London: Stevens & Sons Limited, 1953) 3
[13]LeFur,―LaCoutumeetlesprinciplesgenerauxdudroitcommesourcesdudroitinternationalpublic.‖,3
Recueil Geny, 1936, 362 at 368 cited by Bin Cheng, General Principles Of Law As Applied By International Courts And Tribunals, (London: Stevens & Sons Limited, 1953) 4
[14]―Therightofastatetoadoptthecoursewhichitconsidersbestsuitedtotheexigenciesofitssecurityandto
the maintenance of its integrity, is so essential a right that, in case of doubt, treaty stipulations can not be interpreted as limiting it. ‖ The Wimbledon case (1923), PCIJ,
[15]Hersch Lauterpacht, International Law And Human Rights, (New York: Garland Publishing Inc., 1973) 340.
―The obligation of the members of the United Nations probably include the duty to promote and to ensure the respect of human rights and fundamental freedoms not only in relation to legislative and administrative action by the authorities of the state conceived as an international person, but also, in certain cases, in relation to the local autonomous subdivisions of the State and even private bodies and individuals.‖ See at 155
[16]See Articles 14 and 26 of the ICCPR, 1966.
[17]David Harris, Cases and Materials on International Law,(New Delhi, Sweet and Maxwell 2011) 500 24David Harris, Cases and Materials on International Law,(New Delhi, Sweet and Maxwell 2011) 507 [19]http://www.un.org/en/documents/udhr/
[20]Id.
[21]E.P. Royappa v. State of T.N. (1974) 4 SCC 555
[22]Art 51 (c): ―The State shall endeavour to— ‗foster respect for international law and treaty obligations in the dealings of organized peoples with one another‘
[23]Art 51 A (h): ―to develop the scientific temper, humanism and the spirit of inquiry and reform‖
[24]Art 253: ―Notwithstandinganythingin the foregoingprovisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or otherbody.‖
[25]Art51(c):―TheStateshallendeavourto—‗fosterrespectforinternationallawandtreatyobligationsinthe
dealings of organized peoples with one another‘ [26]http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html[27]Dr. Malvika Karlkekar v. Union of India, Cr. WP 583 of 1992 (SC) [28]NHRC v. State of Arunachal Pradesh (1996) 1 SCC 742
EQUAL PROTECTION OF REFUGEE IN A NON– SIGNATORY STATE
[Vol 2/ Issue 1/ May 2016] [ISSN 2394•9295] Dr. Priti Pandey
Asst. Prof.
Amity Law School, Noida E•mail:ppandey1@amity.edu
ABSTRACT
As the ever increasing gap between the theory and practice of human rights of refugees assumes the form of a crisis, it is significant to identify the reasons for the crisis and to propose some solutions. Since the situation is worst in states which are non signatories to the Refugee Convention and thus without a concrete source of obligation, it becomes imperative to diagnose the situation of refugees in such states. Among such countries India is important because it hosts refugees from countries ranging from Asia to Africa. This paper aims at identifying the problems that prevent achieving equal protection for refugees in India. It also aims at identifying the sources of obligation for India to ensure equality for the refugees. Succinctly, the aims and objectives of the present paper are three fold, firstly,to provide a detailed analysis of the existing legal framework which aims at ensuring equal protection for refugees. Secondly,to categorise the legal principles, legal provisions and judicial decisions which aim to ensure equal protection for refugees in India and thirdly, to analyse the conditions of refugees in India and discriminatory practices towards them with an aim to identify the possible ways to negate discrimination, ifany.
In this way, this paper aims at establishing that the difficulties in providing equal protection to refugees are deeper than previously thought. It aims to emphasize that the normative quality of law, with justice as its ultimate objective, is an important tool to alleviate the conditions of refugees.
Key Words: Refugee Convention, Equal Protection for Refugees, Normative quality of Law
INTRODUCTION
‗All individuals, solely by virtue of being human, have moral rights which no society or state should deny‘[1]and these rights are rightly denoted as the human rights. They are not mere ethical yardsticks[2]to measure a government‘s function or degree of civilization; they embody the very idea of equality, justice, human dignity. Human rights, like natural rights, are alleged entitlements that empower and protect individuals because they are persons and not merely because they are citizens. They are non•negotiable[3]in nature[4] and equality is a part and parcel of the omnipresent doctrine of human rights. The question of rights of refugees is inextricably linked to the contemporary international human rights law as most of the rights claimed by the refugees are in themselves human rights protected and guaranteed under various international instruments on human rights. These human rights instruments are mainly in the form of General Assembly Resolutions and international treaties and include the Universal Declaration of Human Rights,[5]InternationalCovenantonCivilandPoliticalRights,[6]InternationalConventiononRacial
Discrimination, [7]Convention on the Elimination of Discrimination against Women,[8]Convention on the Rights of Child[9]and United Nations Convention against Torture.[10]
STATES OBLIGATION TOWARDS REFUGEE UNDER INTERNATIONAL LAWS
There exists an opinion to the effect that ―the general principles of lawrecognized by civilized nations‖, identified as an important source of international law[11], are nothing but the principles of natural law[12]and some think that they are derived from natural law.[13]Further, in the wake of the withering away of the concept of sovereignty[14]it is submitted that the obligation for equal treatment in International law attaches to acts of bodies other than the state itself.[15] Grotius recognized the possibility of international protection of human rights even against one‘s own state. He justified individual rights in international law on the basis of the law of nature. Apart from obligation of states under customary international law towards aliens regarding equal treatment of aliens there exists number of international and regional treaties, declarations and conventions providing certain rights to the aliens. Further, it is a well settled principle under international law that the ‗state in whose territory an alien resides must afford his person and property at least that level of protection which is sufficient to meet those minimum international standards prescribed by international law, and must grant him at least equality[16] before the law with its own nationals so far as far as safety of person and property is concerned. The UNESCO Convention against Discrimination in Education, adopted on 14 December 1960 and enteredintoforceon22May1962definesdiscriminationinArticle9asincluding,―anydistinction,exclusion, limitation or preference which, being based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality or treatment in education‖ and prohibits the same. In the Case concerning certain German interests in Polish Upper Silesia (Merits), it was held that aliens should be treated in a manner similar to the nationals.[17]The European Court of Human Rights has regarded discrimination as existing if there is a difference of treatment without any ‗objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized.‘[18].
STATES OBLIGATION TOWARDS REFUGEE UNDER INTERNATIONAL HUMAN RIGHTS LAW
International Human Rights law outlines the basic universal human rights which are available to all human beings irrespective of his nationality. As most of the rights which the refugee are in need of are basically human rights per se. There are ample provisions under different international human rights instruments providing protection to refugees by conferring upon them different rights. Right to equal treatment is also one among such rights and even if a state is not party to Refugee Convention, if it is signatory to any of the abovementioned instruments the responsibility and obligation of the receiving state stands clear and unambiguous.
UNDER UDHR, ICCPR, ICESCR
Art 1 and 2 of UDHR are provisions in general nature addressing the issue of discrimination.[19]Article 1 reads as, ―All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience andshouldacttowards oneanotherina spiritof brotherhood.‖Article 2providesthat,―Everyone is
entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non•self•governing or under any other limitation of sovereignty‖ Art 3 of UDHR speaks for right to life and liberty.[20]It provides that, ―Everyonehasthe right to life, libertyand securityof person!‖
Though, UDHR has been argued to have the status of soft law, being a declaration, the fact that it has been adopted by overwhelming majority of the nations and that there exist a uniform state practice coupled with the desired opinio juris provides much needed support to the view that it has acquired a status of customary international law and must be adhered to by all nations without fail. Art. 2(2) of ICCPR provides for institutionalization ofhumanrightsprotection. It providesthat,―Wherenotalreadyprovidedforbyexisting legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant‖ Art. 13 recognizes the rights of aliens in followingterms, ―An alien lawfullyin the territoryof a State Partyto the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competentauthority.‖
Thus, there exists a clear obligation under ICCPR to provide equal treatment to the refugees. India acceded to it in 9979 with interpretative declarations regarding common Art. 9, Art. 9 and Art. 93. But still the obligation under Article 26 is operative in Indian context.
UNDER ICESR
Art. 3 of International Convention on Economic Social and Cultural Rights is also pertinent here as it aims at ensuring equality. It provides that, ―The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Though, the obligations under ICESCR are also directly concerned with the rights of individuals to be treated equally and their enjoyment of cultural, social and educational rights. India acceded to the Covenant in 1919 with interpretative declarations regarding Art. 4, 8 and 1(c).
UNDER OTHER INTERNATIONAL COVENANTS
Among other relevant provisions are Art 2 and Art 3 of CAT Article 3 of CAT states that ―No State Party shall expel, return (refouler), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Art.22 of CRC, providing for assistance to refugee child. It states that, ―States Parties shall take appropriate measures to ensure that a child who isseeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present
Convention and in other international human rights or humanitarian instruments to which the said States are Parties. For this purpose, States Parties shall provide, as they consider appropriate, co• operation in any efforts by the United Nations and other competent intergovernmental organizations or non•governmental organizations co•operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.‖India is a signatory to CRC and it has not placed any reservation to Art. 22 of CRC. This provision makes imperative on part of India to provide protection to the refugee child and his familytoo.
REFUGEE RIGHTS UNDER CONSTITUTION OF INDIA
Indian Constitution is guided by the principle of constitutionalism which embodies in itself certain human rights to all the individuals, and also as the Indian Constitution was drafted almost at the same period when the United Nations was drafting the Universal Declaration of Human Rights so the drafters while drafting have taken into account its provisions also. They are called fundamental rights and are contained in part III of the Constitution. Some of these rights are available only to the citizens while some of them are available to both the citizens as well as non•citizens. Right to equality is one such fundamental right which is available to both the citizens as well as the non•citizens. The Constitution of India guarantees the Right to Equality through Art.14to
- 14 guarantees to every person the right to equality before the law or the equal protection of the laws in followingwords;―Article14–Equalitybeforelaw:TheStateshallnotdenytoanypersonequalitybeforethe law or the equal protection of the laws within the territory of India‖ Bhagwati, J. propounded a new approach to Art.14inthefollowingwords:―Equalityisadynamicconceptwithmany aspectsanddimensionsanditcannot be ‗cribbed, cabined and confined‘ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.[21]In the case of Maneka Gandhi v. Union of India27 quoting himself from Royappacase,Bhagwati, J.very clearlyreadthe principle ofreasonablenessinArt.14.Hesaid:―Art. 14strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non•arbitrariness, pervades Article 14 like a brooding omnipresence‖.Apart from Article 14, the Fundamental rights as enshrined under Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the fact whether they are citizens of India or aliens. Art. 51 (c),[22]Art. 51 A (h),[23]Art. 253[24]and Entry 13,[25] 14,26 17[27]& 16[28] of List I read with Art. 246 imposes obligation on the Union of India and the individuals to take concrete steps in order to fulfill its international obligations and to behave with humanism. These obligations are by no means secondary and a change in approach is required to recognize their worth in bringing equality for therefugees.
REFUGEE RIGHTS AND INDIAN JUDICIARY
As for the question of respecting Refugee Law, an analysis of Supreme Court‘s stand on the matter brings to light India‘s interesting position[26]. In the case of Ktaer Abbas Habib AlQutaifi v. Union of India[27]the court held that, the International Conventions and treaties are not as such enforceable by the Government, nor they give cause of action to any party, but there is an obligation on the Government to respect them. It held that the power of the Government to expel a foreigner is absolute. It was recognized that Article 29 of the Constitution of India guarantees right of life on Indian Soil to a non•citizen, as well, but not right to reside and settle in India. It was observed that the international covenants and treaties which effectuate the fundamental rights guaranteed in our constitution can be relied upon by the Courts as facets of those fundamental rights and can be enforced as such. It recognized that the work of the UNHCR being humanitarian the Government of India is under obligation to ensure that Refugees receive international protection until their problem is solved. It was emphatically observed that the principle of ‗nonrefoulment‘ is encompassed in Article 29 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security. It was also observed that, in view of directives under Article 59(c) and Article 253, international law and treaty obligations are to be respected and that the Courts may apply those principles in domestic law provided such principles are not inconsistent with domestic law. The right of refugees to adequate protection and fair treatment was upheld in the case of NHRC v. State of Arunachal Pradesh.[28]In this case, due to deteriorated relations between citizens of Arunachal Pradesh and the Chakmas the latter complained that they were being subjected to repressive measures with a view to forcibly expelling them from the State of ArunachalPradesh.
CONCLUSION
Equality has an embryonic characteristic as it has been developing all over the world, ad infinitum. It serves as the bedrock of justice and is the cornerstone of a just, peaceful and ordered society. The concept of equality has its roots deep in the natural law concept which aims at justice and rationality. As inequality among individuals is an inescapable phenomenon, reasonable classifications are required so that equality is ensured in deed. However, its trajectories have been different and so has been its fate. Equality is well recognized as a part and parcel of ancient Indian culture, though the same has been diluted and virtually lost with the passage of time. The ebb and flow of the movement of equality is unparallel. The study demonstrates the need as well as the reasons for maintenance of equality in the society as it is an essential human right and has transcendental characteristics. Its significance further increases in the context of refugees who flee their country under the fear of persecution and threat of death. There existed a tradition of affording protection and equal treatment to refugees on humanitarian grounds. This obligation had its source in morality, conscience and religion. But, now in the wake of increasing international diplomacy, pursuit of national interests and stress upon sovereignty the obligation for equal treatment is largely watered down inoperation.
In International law, the obligations regarding equal treatment of refugees is well settled and now we need to advance the theories of cosmopolitan theory of justice and cosmopolitan federalism in order to minimize the adverse effects of sovereignty upon human rights aspiration. The doctrine of state sovereignty which has sofar
shielded naturalization, citizenship and denationalization decisions from scrutiny by international and national courts must be challenged in order to establish the omnipresent regime of equality in international law. Narrow sense of identity and a distinct bond of alienage coupled with an all•powerful state eyeing at national interests have led a fatal blow to the legitimate concerns of the refugees. Unfortunately, this is so despite the fact that there exists a clear obligation to provide equal treatment to refugees under International treaty law, customary principles as well as the decisions of national and international courts. Thus, even if a state is non•signatory to the Refugee Convention, there exists an obligation for equal treatment to refugees. Such obligation is to be traced through the general principles of international law, various treaties among nations, principles of customary international law, various human rights treaties and declarations in the forms of soft laws, national legislations and decisions of national and international courts.
The problems pertaining to equal treatment of refugees will have multifarious repercussions as it has already led to a sense of impunity among government authorities in most part of the country. India has the laws and the legal mechanism but the same is under used and sometimes misused. The legal system in India provides for most of the key characteristics of human rights protection and equal treatment but the same has failed here due to the gap in their implementation and due to the reason that it has failed to connect the society with the law. For example, the Constitution of India in itself aims at ensuring all the basic human rights through various provisions ranging from Part III and part IV of the Constitution. Engagement with the law must be one strategy as law is an important component of social organization. In fact, the exploration of legal and social change has a necessary connection in the growing humanitarian concern with the refugees. India stands in need of a movement from within the masses and the role of education in the process is going to be the most vital one. International law stipulates that refugees should enjoy a broad spectrum of rights derived by virtue of their humanity and their particularvulnerability.
As India is not a party to any International Refugee Law instrument, itsobligations under international law are limited to the human rights instruments it has ratified and to the relevant principles of customary international law. These include the principle of non•refoulement and the provision of a minimum standard of treatment that allows refugees to live a life of dignity. India‘s international legal commitments thus encourage the development of an effective domestic legal framework that protects the rights of refugees in accordance with the standards of protection outlined under International Human Rights Law.Developing a strong and streamlined national refugee determination process would demonstrate that India is a modern state capable of dealing with pressing national refugee issues in a consistent and just manner. Creating domestic refugee legislation and a national refugee protection body would also enable the Government of India to assert its sovereignty, by addressing refugee issues through effective national legal mechanisms rather than symbolic international ones.
REFERENCES
- David Sidorsky, Contemporary Reinterpretations Of The Concept Of Human Rights, Essays on Human Rights, David Sidorsky (ed.), reproduced in International Human Rights in Context, (New York: Oxford Univ. Press)27
- Carlos Santiago Nino, The Ethics Of Human Rights (New York: Oxford University Press,1991)
- It prohibits an exchange of rights for benefits which cannot be expressed in terms of rights. See John Rawls, A Theory Of Justice Rev. Ed. (Cambridge, MA: Harvard Univ. Press, 1971/1999).
- For details see Jurgen Habermas, Between Facts And Norms, Transl. W. Rehg (Cambridge, MA: MIT Press, 1996). See also David Held, Democracy And The Global Order: From The Modern State To Cosmopolitan Global Governance, (Stanford Univ. Press, 1995). See also J. Rawls, Political Liberalism (Cambridge, MA: Harvard Univ. Press,1996)
- Hereinafter referred as UDHR. On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of HumanRights
- Hereinafter referred as ICCPR. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December1966.
- Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December1965
- The Convention was adopted in 1979 by the UN GeneralAssembly,
- Hereinafter referred asCRC
- Hereinafter referred asCAT
- See Art 38(1) of Statue of International Court ofJustice.
- Such authors include Spiropoulos, Salvioli and Cavagleiri. For details see Bin Cheng, General Principles Of Law As Applied By International Courts And Tribunals, (London: Stevens & Sons Limited, 1953)3
- LeFur,―LaCoutumeetlesprinciplesgenerauxdudroitcommesourcesdudroitinternationalpubl‖, 3 Recueil Geny, 1936, 362 at 368 cited by Bin Cheng, General Principles Of Law As Applied By International Courts And Tribunals, (London: Stevens & Sons Limited, 1953)4
- ―Therightofastatetoadoptthecoursewhichitconsidersbestsuitedtotheexigenciesofitssecurity and to the maintenance of its integrity, is so essential a right that, in case of doubt, treaty stipulations can not be interpreted as limiting it. ‖ The Wimbledon case (1923),PCIJ,
- Hersch Lauterpacht, International Law And Human Rights, (New York: Garland PublishingInc., 1973)
- ―The obligation of the members of the United Nations probably include the duty to promote and to ensure the respect of human rights and fundamental freedoms not only in relation to legislative and administrative action by the authorities of the state conceived as an international person, but also, in certain cases, in relation to the local autonomous subdivisions of the State and even private bodies and individuals.‖ See at 155
- See Articles 14 and 26 of the ICCPR, 1966.
- David Harris, Cases and Materials on International Law,(New Delhi, Sweet and Maxwell 2011)500
- David Harris, Cases and Materials on International Law,(New Delhi, Sweet and Maxwell 2011)507
- http://www.un.org/en/documents/udhr/
- i
- P. Royappa v. State of T.N. (1974) 4 SCC555
- Art51(c):―TheState shallendeavour to—‗foster respectforinternationallawandtreatyobligationsin the dealings of organized peoples with oneanother‘
- Art51A(h):―todevelopthescientifictemper,humanismandthespiritofinquiryandreform‖
- Art253:―NotwithstandinganythingintheforegoingprovisionsofthisChapter,Parliamenthaspower to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.‖
- Art51(c):―TheState shallendeavour to—‗foster respectforinternationallawandtreatyobligationsin the dealings of organized peoples with one another‘
- http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html
- Malvika Karlkekar v. Union of India, Cr. WP 583 of 1992(SC)
- NHRC v. State of Arunachal Pradesh (1996) 1 SCC742
VOLUME 2 ISSUE 2
V
LAW AS THE VOICE OF JUDGES
Vol 2/ Issue 2/ Dec 2016 ISSN 2394•9295
Divya Ann Samuel
B.B.A LL.B(H) 8th Semester
Amity Law School, Noida (U.P) Email Id: divyaannsamuel@gmail.com
ABSTRACT
Thedefinitionoftheterm„law‟hasbeenlefttothejuristsforovercenturies.Eachjuristhastriedtointerpret the term „law‟ in the best possible manner to some extent representing the cultural view of their times. The HindujurisprudenceandtheIslamicjurisprudencehasalsodefinedlawindifferenttermscallingit
„Dharma‟ and „Hukum‟, respectively.
If the term „law‟ has to be discussed, Austin has to be discussed at length. Austin has contributed a lot to the field of jurisprudence. The reason why jurisprudence is important here is because jurisprudence is
„knowledge of law‟. It is through this knowledge can it be found if law is the voice of judges. To establish the same, Austin‟s imperative theory of law has been discussed in this paper. The criticism of Austin‟s theory has also been addressed. Having discussed Austin‟s theory, the paper discusses the nature, purpose and function of law.
The paper then discusses law as a means to bring about social change and the role of judges in doing so. Legal fictions and legal presumptions are also discussed in light of powers vested on judges. The paper shall also discuss some Indian case laws. The aim of the paper is to ascertain if „law is the voice of judges‟.
Key Words: Law, Jurisprudence, Social Change, Judges
INTRODUCTION
There has been a lot of debate as to what law is, so much so that there were different schools of jurisprudence that argued different origins of law. This has led to many different definitions of law.
Often, many question as to whether judges‘ make law. To rephrase it, whether law is the voice of judges? The purpose of this paper is to analyse and answer this question. For the same, the author has tried to discuss most acceptable definition of Austin. The definition is critically analysed and then the author moves to discuss the nature and function of law for getting the knowledge of essence of law.
Dealing with the contemporary aspect, towards the end, law is analysed as an instrument of social change and lastly, the author tries to answer the question of whether ‗law is the voice ofjudges‘.
AUSTIN’S THEORY
Austinhasdefinedlawas―arulelaidfortheguidanceofintelligentbeingsbyanintelligentbeing having power over them‖.[1]Thus, he lays emphasis on four essentials: command, sanction, duty and sovereignty. He divides law as one created by God and the other created by man for man. He has also recognised other formsoflawwhichcannotbesaidtobecommand ‘ofthesovereign,butcancomeunderthepurviewoflaw:
- Declaratory or Explanatory laws: No new law is declared but the explanation to the existing law exists. This is where the role of interpretation of a statutory provision comes into play. Passing of a declaratory statute becomes desirable when certain expressions in common law or statutes are being misunderstood.[2]
- Laws of repeal: The laws that are repealed by new laws hold no value as the old command is repealed with the newone.
- Laws of imperfect obligation: Such laws do not create or fix sanction and so cannot be termed as pure type of law, according toAustin.
The ideology which resounds in the Austinian definition is that of his army background which involved lot of discipline and following the command of the superior.
According to Sir John Austin, sovereignty lies with the political superior of the country or a State. ‗Law‘ has to be followed by all and so it has to be backed by sanction. According to him, no one can be forced to follow the law without the fear of sanction.
Austin‘s theory of analytical positivism has been criticised on following grounds:
- Customsoverlooked
- Permissive Character of lawoverlooked
- No place for Judge•madelaw
- Austin‘s theory treats International law as a meremorality
- Commandover•emphasised
- Inter•relationship between law and morality completelyoverlooked
- Sanction alone is not the means to induceobedience
- Indivisibility of sovereigntycriticised
Having discussed Austin‘s theory the next phase is to discuss the nature, function and purpose of law.
NATURE, PURPOSE AND FUNCTION OF LAW
Nature of law
Law may be described as a normative science, that is, a science which lays down norms and standards for human behaviour in a specified situation or situation enforceable through the sanction of the state.[3]By Austin‘s definition of law it is quite clear that law can be created only by the Political superior and no person should be above him because then he loses the power to command. The question of who makes the law is quite uncertain. Theoretically, Judges do not make law, they only interpret or declare it, but the truth is that even during the period when analytical positivism held its sway, the common law judges through their judicial minds developed the common law to suit the needs of the socialchange.[4]
Since legislature enacts law on diverse subject for achieving the ends of social justice, complexity of laws may lead to ambiguity, therefore, legislature itself gives discretion to ambiguity, therefore, legislature itself gives discretion to the courts to give meaning to the law and develop it by evolving new doctrines, principles, standards and norms.[5]It is pertinent to mention here that certain terms such as ‗public order‘, ‗reasonable
restriction‘, etc. are used by the Courts to interpret in a manner so as to remove any sort of vagueness and subsequently add meaning to law.
Function and purpose
The main purpose of law is to ensure justice to the aggrieve party. It is a channel through which a satisfying judgement is delivered to the party which suffered loss, or by arbitrating conflicting claims, or ensure social security at times. From this purpose it can be drawn that the function of law shall be to regulate the society.
The justice that has to be ensured is of two types: distributive and corrective. Roscoe Pound attributed four major functions to law, namely:
Maintenance of law and order in a society
Maintain status quo in the society
To ensure maximum possible freedom to people
To satisfy the needs of people, wherever possible and required.
This discussion portrays a clear picture of the object of law. The question now arises as to who must ensure that this object should be achieved. The answer is that all three organs, viz. executive, judiciary and the legislature, must together endeavour to reach this object. The legislature enacts the law and judiciary aims to secure justice. Law must, also, cater to the needs of the changing society. In the recent past, the judiciary has played an active role in bringing this change.
LAW AS AN INSTRUMENT OF SOCIAL CHANGE
The law should serve the social purpose of regulating relations among men and for that it is imperative that the Judges administering law must be endowed with legislator‘s wisdom, historian‘s insight for searching truth, prophet‘s vision and capacity to respond to needs of the time. In other words, Judiciary being the guardian of the fundamental rights and also the giver of justice, should be bestowed with the insight to deliver the bestsuited judgements. Law ensures people justice by ―expanding their rights and freedoms and dismantling of the inequitable socialorder‖.[6]
The needs of the people change with time and so, the law too must ―march in tune with the changing norms of the society.[7]‗Law cannot standstill. It must change with the changing social concepts and values. It the bar that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress, or if the society is vigorous enough, it will cast away the law, which stands in its growth. The law must, therefore, constantly be on the move adopting itself, to the fast changing society and not lagging behind.‘[8]
Following the above argument it can be concluded that the object of law is to ensure security in society, stamping out criminal proclivity and regulating relations. An egalitarian social order would be the utopian situation law seeks to create in light of the political and social rights enshrined under the Constitution.
To meet the changes of time, law has to be dynamic and not complacent. In order to ensure the same (i.e. to articulate the felt necessities of time), Courts have come up with various rules of interpretation of law. Some of the rules of interpretation that has come forth are:
- Literal Rule of Interpretation (Strict Rule or Grammatical Rule): This rule of interpretation is used to take the most popular or natural meaning of the terms to be interpreted. This rule is based on the legal maxim verbs legis non est recelendum (i.e. from the words of law, there should be no departure). It is interesting to note that any other rule of interpretation shall be resorted to only when by this rule either justice is not served or there is no intelligible result or ambiguous situations are created. By this rule, however, the judiciary has restricted their power by relying completely on legislature‘s intent.
In the case where the interpretation of whether beetle leaves come under the term ‗vegetable‘ was to be done, it was held that beetle leaves would not come under the ambit of vegetables, owing to the popular meaning of the term vegetable.[9]
In another case where it was found that a shopkeeper was selling obscene books, despite government‘s ban, and he claimed to have not known about the ban, it was held that mens rea was immaterial to be held liable under section 292 of the Indian Penal Code, 1860.[10]Taxing and penal statutes need to follow literal rule of interpretation.
- i) Mischief Rule (Heydon‘s Rule): It looks for the gap in the law that had existed prior to the act of the legislature, i.e. the mischief. Mischief is the evil that had existed. There are four considerations which the Court has to take into consideration before coming to conclusion for mischief rule:
What was the law before making of the Act
What was the mischief and the defect for which the common law did not provide relief What is the remedy that exists presently
What was the reason behind the present remedy
The two short comings of this rule is that the judiciary takes over the power to make law and supersedes the legislature‘s power to do so. The socioeconomic legislative enactments, however, in the post independence era, made Chandrachud, J. comment that the constitutional precedents cannot be used as weapons of defeating the hopes and aspirations of the citizens. The aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If these representatives fail to perform their duty, the nation shall face death and destruction.[11]
In the case of Bengal Immunity Company vs. State of Bihar,[12]it was held that to cure the mischief of multiple taxation and to preserve the free flow of inter state trade and commerce in the Union of India, which was regarded as one economic unit, without any provincial barrier, the Constitution makers had enacted Article 286.
- Golden Rule: The Court must, ordinarily, find out the intention of the legislature of the legislature from the words used in statute from giving them their natural meaning, but if it leads to absurdity, injustice or hardship,theCourtmustmodifythemeaningtosuchanextentandnotfurtheraswouldpreventsucha
consequence. In the case where there existed a right to appeal within six months, a question arose as to six months from the date of knowledge or six months from the date of order. It was held that it shall be from the date of knowledge.[13]In another case, where the interpretation of the term ‗stop‘ was to be done so as to mean momentary or for longer duration at the time of accident, it was held that it means a reasonable period stoppage.[14]
- Harmonious Construction: When two or more provisions of the same statute or legislation are conflicting then the interpretation would be such that the two provisions are not repugnant to each other. Venkatarama Ayyar, J. said that in case of conflicting provisions, maximum efforts must be taken to give effect to both theprovisions.[15]
These rules of interpretation make it evident that the judiciary has played a pivotal role in ensuring that the needs of the changing trends of society are met.
CONCLUSION
Having discussed the Austinian definition of law, the nature and purpose of law and law as an instrument of social change, it can be concluded that judiciary has played vital role in interpreting law. In India, judiciary is deemed to be the guardian of the Constitution. Any law that is unconstitutional, can be struck down by the judiciary.
The approach of judiciary cannot be said to be that of judicial overreach as the Courts do not out rightly strike down the law passed by the legislature. This is evident from various rules of interpretation which have come into play over years. These interpretation rules cannot be said to have given power to the Courts to make new laws but rather the interpretation is given by the Courts to suit the needs of the public.
The law is laid down by the legislature and the judiciary gives the meaning to the provisions and infuse life in law. The interpretation largely affects the way people conceive law in their minds. Judiciary acts as the face between the law laid down by the legislature and the common man seeking justice. It can be concluded in this light that law is the voice of judges, though they do not make law.
REFERENCES
- Studies in Jurisprudence and Legal Theory, Dr. N.V. Paranjape, pg.22 (Central Law Agency, 6thedition)
- The Interpretation of Statute, Prof. T. Bhattacharya, pg 6 (Central Law Agency, 9thedition)
- Studies in Jurisprudence and Legal Theory, Dr. N.V. Paranjape, pg.143 (Central Law Agency, 6thedition)
- Ibid, pg.144
- See: Vishakha vs. State of Rajasthan, AIR 1997SC.
- State of Karnataka vs. Appa Balu, 1995 Supp. (4) SCC469
- Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly, AIR 1986 SC1571
- National Textiles Workers‘ Union vs. P. Ramakrishnan, 1983 (1) SCC228
- Ramavatar Budhiaprasad Vs. Asstt. Sales Tax Officer, AIR 1961 SC 1325
- Ranjit Udeshi vs. State of Maharashtra, AIR 1965 SC 881
- Keshvananda Bharti vs. State of Kerala and Others, AIR 1973 SC1461
- Bengal Immunity Company vs. State of Bihar, AIR 1955 SC661
- State of Punjab vs. Qaiser Jehan Begum, AIR 1963 SC1604
- Lee vs. Knapp, (1967) 2 QB442
- Bengal Immunity Company vs. State of Bihar, AIR 1955 SC661
CHILD SEXUAL ABUSE: A CRITICAL ANALYSIS
Vol 2/ Issue 2/ Dec 2016 ISSN 2394•9295
SailjaKhosla HardikJain
Asst.Proffessor B.Com. LL.B. (H) 6thSemester
Amity LawSchool, Noida Amity Law School, Noida EmailId:skhosla@amity.edu EmailId:hrdkjain95@gmail.com
ABSTRACT
Children are most innocent when in their childhood but there exist some demons into the society that could be near and dear ones that ruin their innocence by sexually exploiting them, in such a situation it is very important for society, parents, media and educational institution to take initiative to teach children their rights and make awareness amongst them. In spite of having various pieces of legislation which protect the rights of the children, still the rate of crime against the children are increasing at a constant rate every year. Exploiting a child sexually is a most dreadful act one can do, which results in a child leading a depressed life in future. This article provides about what are the effects on the health of a child abused sexually & mentally and what role society, parents, and educational institution should play to save the victim of the offence and how to deal with a child who is already a prey of this heinouscrime.
Key Words: sexual abuse, child, convention, domestic legislation, modesty
INTRODUCTION
When a child or a young person is pressurized, forced or tricked into taking part in any kind of sexual activity with an adult or young person, then that child issaid to be a victim or prey of an offence called ―Child Sexual Abuse‖. Child sexual Abuse involves activity like fondling, touching, kissing of genitals and other areas of the body, Penetration with a penis, digit or object, exposing genitals or sexual material to a child, talking to a child inappropsriately, graphically and explicitly about sex, asking a child to touch their own genitals or another person, non•forced sex with an underage child[1]
Every day morning articles into the newspaper related to the sexual abuse of the child attract towards a question that despite having a great piece of legislation in India providing the rights to the child, why the human rights of a child are still at risk? Why is the childhood being robbed off from their innocence? “Children are the greatest gift to humanity, the sexual abuse to the children is the most heinous crime, it is an appalling violation of their trust, an ugly breach of our commitment to protect the innocent”[2] observed by Justice Palansamy Sathasivam in the case of Childline India Foundation & Anr. Vs. Allan John Waters & Ors.[3]
When the census was conducted in 2001 in India it was found that about 440 million individuals in India were below 18 years of age and constitute 42% of total population. A total of 33,098 cases of sexual abuse in children were reported in the nation during the year 2011 with an increase of 24% when compared to cases reportedin2010whichshowedthefigureof26,694.[4]Tocontainthisevilloomingwithinthefamilyand
outside the home the act The Protection of Children from Sexual Offences Bill, 2011 was introduced into the parliament after the struggle and the debates, the bill finally achieved the assent of both the houses and of the president of India on 19th June 2012 and was notified in official Gazette on 20th June 2012 which gave both male and female children their rights and protection from the sexual offences that were committed against them before the enactment of the act. The objective of the act is to protect children from offences of sexual assault, sexual harassment and pornography. The act provides for the establishment of Special courts for trial of such offences and matters connected to it or any such kind of incident considering the importance and necessity for the adequate development of the child that his or her Right to Privacy and Right to Dignity are safe. Furthermore, the act suggests that if any person having slightest of apprehension that an offence is likely to be committed, the person is then under the mandatory obligation to report the matter and also it is mandatory for the police to file FIR in all such cases of child sexual abuse. The act also provides the provision for recording of the statement of the child at the place of his or her choice.
INTERNATIONAL CONVENTION
It seemed to be very difficult to effectively protect the rights of the child, due to absence of any legally binding text, understanding the seriousness of the issue in 1978, Poland proposed an idea of Convention on the Rights of The Children that would be binding on all the nations, the bill was then produced and it took ten unanimous years to achieve the consent of the bill by the international community. Finally, the bill achieved the consent and was adopted in 1989, the objective of the convention was to protect the rights of the children in the world & the text present in the convention is legally binding onto the countries that will protect the rights of the children.[5]
PROVISIONS OF THE CONVENTION
The UNICEF convention provides with the articles that suit to the issue, they are as follows: [6]
Article 4: It is the responsibility of the Government to take all available measures to make sure that children‘s rights are respected, protected and fulfilled. Governments of the respected countries are under obligation to monitor that the minimum standards set by the convention are being met into the countries they are governing, they must provide with an environment where the children‘s can grow and can reach their potential.
Article 6: Children have a Right to Live. The government should ensure that children survive and develop healthier.
Article 19: Children have the right to be protected from being hurt and mistreated, physically or mentally. The government should ensure that children are properly cared and protect them from violence, abuse, and neglect by their parents, or any person who looks after them. In order to make children learn for discipline, parents must not use the punishment that is violent in nature, such type of violence or punishment in order to teach discipline is unacceptable. In most of the countries, laws are already defined explaining the punishments that are considered as abusive or excessive. The government should review these laws in light of theconvention.
Article 34: Government should protect children from all forms of Sexual exploitation & Abuse. This provision in the convention is augmented by the optional protocol on the sale of Children, child prostitution& Child pornography.
Article 39: Children who have been neglected, abused or exploited should receive special help to physically and psychologically recover and reintegrate into society. Particular attention should be paid to restoring the health, self•respect and dignity of the child.
DOMESTIC LEGISLATION
There are millions of children who get victimized by trafficking and sexual exploitation every year and the numbers are increasing constantly every year. There are number of national legislations and International convention which provides the number of provisions for the protection of children from sexual abuse.
Before the enactment of Protection of Child from Sexual Offences Act, 2012, Goa Children‘s Act, 2003 was the only specific piece of child abuse legislation. Child Sexual Abuse was prosecuted under Section 375, 354 and 377 of Indian Penal Code, 1860 however the IPC was not effectively protecting the children from sexual abuse due to some loopholes prevailing in the current legislation stated below:
Section 375 of Indian Penal Code,1860 doesn‘t protect minor or major male victims from sexual acts of penetration other than ―traditional‖ penovaginal
Section354ofIndianPenalCode,1860lacksastatutorydefinitionof―modesty‖.Itcarriesaweak penaltyand is a compoundable offence.Further, it does notprotect the―modesty‖of amaleminor.
Section 377 of Indian Penal Code, 1860 the term ―unnatural offences‖ is not defined. It only applies to victims penetrated by their wrongdoer‘s sex act and is not designed to criminalize sexual abuse of children.[7]
Considering the previous legislations Prevention of Child from Sexual Offences Act, 2012 was enacted which provided for various provisions which were stringent:
Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to life imprisonment along with fine.(Section 4)
Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend to life imprisonment along with fine.(Section 6)
Sexual Assault (Section 7) – Not less than Three tears which may extend to life imprisonment along with fine.(Section 8)
Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to life imprisonment along with fine.(Section 10)
Sexual Harassment of the child (Section 11) – Three years and fine (Section 12)
Use of Child for pornographic purpose (Section 13) – Five years and fine and in the event of subsequent conviction seven years and fine [Section 14 (1)] [8]
India is a country with world‘s second largest child population, and our constitution protects and provides them with their rights & guarantees justice to them. Part III Fundamental rights which are one of the basic structures of the constitution as discussed in Maneka Gandhi case[9]gives the rights to children as well. Article 21 of Constitution states ―Protection of life & Personal Liberty” which has a very vast meaning and provides many rights to the citizens, some of them which concern the issue of this article are ―Right to Privacy” &―Right to Live Life with Dignity” it was held in ―Auto Shanker case”[10]that Right to Privacy is expressed as right to be let alone which is guaranteed by Article 21 of the Constitution while Right to Live Life with Dignity was explained in ―Maneka Gandhi case” which stated that right to ‗live‘ is not only limited to protection of any faculty or limb but also includes ‗right to live a life with dignity‘ and all that goes along with it.[11]
Every child has their own rights to keep privacy and right to live a dignified life in the society no one can infringe these rights. Whenever any sexual abuse takes place with a child the rights of the victim comes at a risk and gets infringed by the wrongdoer and the violation of Article 21 of constitution takes place.
Constitution of India not only provides with the Fundamental rights but also describes the duties and aims to be taken up by the state in the governance of the country. Article 45 provides that it is the duty of the state to make such provision for early childhood care and education to children below the age of six years.[12]PHYSICAL & PSYCHOLOGICAL EFFECTS
Sexual abuse of a child leaves a very severe effect on the health of a child and can ruin the childhood. The impact of the sexual abuse on a child can be long lasting or in some cases can be lifelong. Children who are sexually abused experience both short term and long term effect on their health. In Long term, victims can exhibit emotional difficulties, medical health problems, problems related to consumption of alcohol or drugs in excess, disturbing thoughts, not being able to cope up with the social life, etc.
In Short term victims can exhibit regressive behavior like bed wetting, thumb sucking, sleep disturbances, eating problem i.e. not taking proper diets, being scared of the people and unwillingness to participate in school or social activities.
There might also be some physical signs that are the warning signs and are easy to spot like difficulty in walking or sitting of the victim, bleeding or swelling in genital areas, pain or itching in genital areas, frequent urinary or yeast infection.
If suspicion arises about the abuse of the child sexually one must talk to the child and must make a comfortable environment for the child so that he/she comfortably gets into the conversation, while having conversation one must keep these points in mind:
The tone must be polite and must not be very serious because this will scare them and they will not be able, to tell the truth comfortably.
Must listen to the child carefully and with deep patience. Must not blame the child or should avoid judgments.[13]
CRITICISM
According to the report of National Crime Records Bureau of 2014 89,423 cases of child sexual abuse were reported in which charge sheet was filed for only 87.6% cases.[14]The published statistics shows that in spite of having proper legislation there have been some issues with the enforcement of law. Though the legislation did their best in making the provisions of the act but still faced some criticisms and challenges like:
The most important challenge is to find the intention of the wrongdoer at the time of committing the offence, a criminal liabilityarises only when there is ―Actus Reus” e. wrongful act done along with
―MensRea”i.e.WrongfulIntention[15].Insomecasesitisverydifficulttofindthewrongfulintention of the wrongdoer, in some cases, it is difficult to connect a link between intention and commission of the act. In such type of situation the actions of the wrongdoer defines the distinction between the act of the wrongdoer and the intention, the prosecution establishes if there is any evilness in the act of the person, eye witnesses present there at the time of the act done by the wrongdoer can help in judging the intention of the person. For Eg: If job doing parents on the basis of trust leaves a child with maids for the care and if that maid had the wrongful intention to harm or abuse thechild.
A child who has been a victim of any of the offences of the act must probably have had a harsh experience of his life which is likely to damage the mental health of the child and in such circumstances, it is not only the child that suffers trauma but also the family of the victim need psychological treatment. Sadly, the government does not provide any of such psychological service to the victim and the family.
Prevention of Child from Sexual Offences Act, 2012 demands the necessity of training for the police and other legal authorities, handling child sexual abuse, such programs are almost non• existent. A child, who is traumatized giving a statement in front of a police wearing the uniform will make a child into a more of a condition which is full of fear which will result in an incomplete statement by the[16]
The Act does not provide for the provision of the establishment of any type of Non• Governmental Organizations or any Training centre‘s that could guide the police officers doing the investigation and recording the statements of a child or victim.
ROLE OF CIVIL SOCIETIES
Media in today‘s era is a very good platform to reach to the public and make them aware of the happenings around the world likewise, taking the support of the media in constructive manner children and the parents can be made aware and can be educated about the child sexualabuse.
Parents are the path showers of the children they must be frank with the children and must educate them about good touch and bad touch, make children learn the address and contact details, make sure that children know how to dial an emergency contact, teach child about buddy system i.e. walking in pairs or groups, they must know what is right and what is wrong and how to tackle any of such situations on their own when parents are not available at the time of theincident.[17]
It is also the duty of parents to monitor for adults who try to invade the privacy of a child, insists on a ‗special time‘ alone from other adults or children, spend a lot of time with that child instead of with adults. Moreover, In today‘s era where parents are busy with their jobs and businesses educational institutions must take the initiatives to educate the children on how to protect themselves from the evils of the society and to protect themselves from the sexual abuses or any kind of abuse.[18]
CONCLUSION
Sexually abusing a child is the most horrendous of the evil resulting into leaving the child scarred for their whole life. Despite several measures taken up by the government for tracking, missing and trafficked, rehabilitating/restoring lost children like introduction of online complaint box called POCSO e•box launched by Minister for Women and Child Development which is an online complaint management system for reporting of sexual offences against children and against the offenders under POCSO Act, 2012[19], khoya paya scheme where the Ministry of Women & Child development with the help of Department of Electronics and Information Technology has introduced a web portal where it will be an ease to report and search for the missing child also the government has framed path•breaking Special Operating Procedures (SOP‘s) that are to be implemented by railways for kidnapped, abandoned, trafficked children by the help of the Railways department. There will be child Helpline centers & NGO/ Child helpline group at 20 major stations for the rehabilitation & rescue of children. The government has also issued some Foster Care Guidelines which permits the individual families as foster parents thereby providing a better standard of care and protection.[20]Despite various legislations and provisions framed by the legislature in order to protect the rights of the child, despite various active roles played by the civil society associations there is rarely any day left where we don‘t notice a particular section of the newspaper not highlighting the issue related to child abuse or child sexual abuse. According to the report published in 2014 by National Crime Records Bureau stated that 89,243 cases were registered during the year[21]which itself shows that how much the offences against the children still prevail in spite of having various legislation and provisions, which states that there is a big loophole which still exist in the legislation. Nonetheless the government actions are appreciated but it is a long journey ahead, and these legislations are the various stations in that journey towards the recognition of the rights if the child, also it is not only about the government it is also about the society including parents in the role of protecting the child, creating awareness & rehabilitating into the functional setupagain.
REFERENCES
[1]Information Technology Act 2000, India, available at: http://www.thehindu.com/news/national/child• sexual•abuse•what•is•good•touch•and•bad•touch/article7780200.ece (Last visited 30 August 2016) [2]Information Technology Act 2000, India,availableat: https://indiankanoon.org/doc/1052165
[3]Childline India Foundation & Anr. Vs. Allan John Waters & Ors. [(2011) 6 SCC 261] [4]Information Technology Act 2000, India, available at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4311357 (last Visited on 10th August2016)
- Information Technology Act 2000, India, available at: http://www.humanium.org/en/convention (Last Visited 20 August2016)
- Information Technology Act 2000, India, available at
http://www.unicef.org/crc/files/Rights_overview.pdf (Last Visited on 20 August 2016)
- Information Technology Act 2000, India, available at
https://en.wikipedia.org/wiki/Child_sexual_abuse_laws_in_India (Last visited on 10th August2016
[8] Protection of Children from Sexual Offences Act, 2012 (Act 32 of2012)
[9] Maneka Gandhi vs Union of India (1978 AIR 597) [1978 SCC (1)248]
[10] R. Rajagopal vs State of Tamil Nadu (1995 AIR 264);[ 1994 SCC(6)632]
[11] Dr. J. N. Pandey, Constitutional Law Of India 255 & 258(Central Law Agency, Allahabad, 52nd Edition, 2015)
[12] Dr. J. N. Pandey, Constitutional Law Of India 449(Central Law Agency, Allahabad, 52nd Edition, 2015) [13] Information Technology Act 2000, India, available at: https://www.rainn.org/articles/if•you• suspect•child•being•harmed (Lst visited on 11th August2016)
[14]Information Technology Act 2000, India, available at: http://ncrb.nic.in (Last visited on 11th August 2016)
[15] PSA Pillai, CRIMINAL LAW, 23( LEXIS NEXIS, Gurgaon, Haryana 12th Edition,2015)
[16] Information Technology Act 2000, India, available at : http://www.mapsofindia.com/my• india/government/the•protection•of•children•from•sexual•offences•act•2012•pocso (Last visited on 11th August2016)
- Information Technology Act 2000, India, available at: http://www.thehindu.com/news/national/child•sexual•abuse•what•is•good•touch•and•bad• touch/article7780200.ece (Last visited 30 August2016)
- Information Technology Act 2000, India, available at: http://www.thehindu.com/news/national/child•sexual•abuse•what•is•good•touch•and•bad• touch/article7780200.ece (Last visited 30 August2016)
- Information Technology Act 2000, India, available at: http://www.livelaw.in/pocso•ebutton• children•file•complaints•sexual•abuse•launched (Last Visited on 30 August2016)
- Information Technology Act 2000, India, available at:
http://pib.nic.in/newsite/PrintRelease.aspx?relid=133957 (Last visited 11th August 2016)
- Information Technology Act 2000, India, available at: http://ncrb.nic.in (Last visited on 11th August2016)
HONOUR AND SHAME: THE QUALITIES OF MEN AND WOMEN IN HONOURBASED SOCIETIES
Vol 2/ Issue 2/Dec2016 ISSN2394•9295 HarshitaSingh
Research Scholar
Mewar University, Chittorgarh (Rajasthan) Email ID: harshita_singh_2007@yahoo.com
ABSTRACT
There is a complex set of traditional, social, and cultural factors that explain the practice of honour killings. In many developing countries sex outside of marriage is illegal and socially unacceptable. As a result, women are expected to actively guard their sexuality before marriage. Specifically, the developing society perpetuate the belief that any deviances from marital sexual relations are shameful and thereby brings dishonour to the family of a woman that engages in such activity. Therefore, a woman‟s sexuality directly correlates to the honour of her family and the level of honour society associates with the family. Moreover, the practice of honour killings is exacerbated by the strong emphasis placed on close familial relationships throughout the Middle East and South Asian Countries.
In addition to affecting the honour of her family, a woman‟s sexuality is also an important symbol of her own worth. Traditionally, a woman is expected to preserve her chastity and thus, her intact hymen indicates fulfilment of her pledge to abstain from sex prior to marriage. The loss of a female family member‟s virginity adversely affects her social standing and also negatively impacts the marriage prospects of her female relatives. Males view a female who has allegedly engaged in sex outside of marriage as less feminine and of little worth as a potential wife because she has not maintained her traditional femininevirtues.
Keywords: Honour Killings, Feminine Virtues, Marital Sexual Relations.
INTRODUCTION
Honour killing is often mistakenly believed to be an Islamic practice or a practice condoned by Islam since it often occurs in Muslim•majority societies. Actually, honour killing is forbidden in Islam and there is no mention of this practice in the Qur‘an or in the Hadiths. There is also little evidence of the practice in Muslim•majority countries such as Indonesia or Malaysia. Honour killing occurs in strongly patriarchal societies often referred to as honour•based and which are found primarily in the Middle East, the Balkans, the southern Mediterranean, and South Asia. In traditional patriarchal societies inheritance is patrilineal, and the family or kin group is the basic social, economic and political unit. The persistence and continuity of that structure depends upon the ability of the women of the family to bear legitimate children, hence the emphasis on control by the family of women‘s sexual and reproductive powers. In such societies the rights and status of the individual are subordinate to those of the family group. In strongly patriarchal societies women are often legally minors throughout their lives, merely changing from being the property of their father‘s family to being
the property of their husband‘s family, without acquiring any political or economic voice, and with no possibility of independent action as an individual.
The concept of disreputation of the male honour has extended, when he lost his control over a female relative. Sometimes women desire to choose a life partner and contracting a marriage with a person of her own choice in a society where the majority of decisions for marriages are taken by parents. Their acts are believed to be acts of disobedience. These practices are assumed to pollute the honour of man to whom that female belongs and who waits for a bride price at her marriage. Women and girls who marry men with their own choice sometimes take help and protection from state laws, and do against the traditional norms and brought shame for their guardians leading them to commit violence for the restoration of their honour. In a traditional notion, the arranged marriages are perceived as balancing of the society, so when females use their own decisions. It causes an imbalance in the society. Sometimes girls and women are killed, when they are trapped between many men‘s decisions for their marriages. Different male relatives have different choices for their arranged marriages. She obeys one relative male. Consequently, she is attempted murder by other male relative. Nagina Bibi, a 17 years old girl was engaged with her cousin by her father‘s choice, but her brother wanted her to marry his wife‘s brother. Once, her brother saw her with the cousin and he burnt her alive. She was admitted to the hospital and her family told the doctors that it is only due to stove bursting at home, but when she came into conscious, she disclosed all the facts. Societies where honour killings occur are characterized by the existence ofcodesofhonourwhichspecifywhatisandisnot―honour‖.Honourrelatestotheoutsideworld‘sviewofa person and can be both won and lost. The community has the obligation to respect a person as long as the code is followed and is seen to be followed.The fact that the practice of honour killing is embedded in and expresses the most deep•rooted values of patriarchal societies, values which are shared by women and men, implies that strategies to address this must be complex comprehensive, and long•term, addressing not only the incidents themselves but also the rootcauses.
Patriarchy crosses faiths and cultures. In strongly patriarchal societies, women and the reproductive power that they embody is a commodity. They are the property of the family to be guarded and exchanged according to strict rules. If those rules are breached, or are perceived to have been breached the men of that family are obliged to eliminate the woman who has brought shame to the family in order to restore family honour. Honour which inheres in the male members of the family can be seen as a parallel concept to shame which is experienced by women. Lost honour becomes a reality when it is made public, and can be restored by a collective response, typified by the collusion of family members in the death of a woman who is perceived by themselves and by the outside world to have brought shame on the family.
In most countries where honour killings are tolerated, these acts do fall under laws dealing with murder but at the same time rules of defence relating to provocation and extenuating circumstances can be found in their penal codes. Such provisions usually originate from old colonial penal codes Spanish, French or Ottoman where honour killings are accorded similar treatment as are ―crimes of passion‖, in that sentencing is based not on the act itself but on the feelings of the perpetrator. If defence of family honour is regarded as an extenuating circumstance, killing in the name of honour may incur a sentence of a few months only.
Honour killing can be seen as one of a range of violent and nonviolent manifestations of woman‘s commodification in patriarchal, honour•based societies. A variant on honour killing is honour suicide whereby members of the family force the perceived transgressor to take her life. Amongst other violent manifestations of patriarchal power over women are Female Genital Mutilation (FGM) sometimes known as female circumcision; the practice of suttee or widowburning, and acidattacks or other forms of defacing and despoiling the perceived offender. Forced virginity testing and female foeticide also fall into this category of violent acts against women which are characteristic of strongly patriarchal societies. Amongst the non•violent manifestations, though they may indeed lead to violence, are the practices of payment of dowry and bride•price on the exchange of a female commodity between her natal family and her family of marriage. Sometimes in such societies widows may be inherited by the dead husband‘s brother, although more often a widow in a patriarchal society is a non•person, as is a barren woman. Statistical data from many societies shows that strong preference for sons in patriarchal societies may lead to the neglect or malnutrition of female babies and infants leading to higher infant mortality amongst under five girls.
The incidence of honour killings is presumed to increase in situations of economic crisis or conflict, or where traditional patriarchal values are under threat as for example when minority communities where honour killings are tolerated come into contact with mainstream societies which do not share the same views of appropriate gender roles. A woman in an immigrant community who is threatened by honour killing by her family is usually discriminated against not only on the basis of gender but may also encounter further ethnic, racial and gender prejudice if she seeks help from the police. This is known as a situation of ―intersectionality‖or multiple discrimination where several cross •cutting dimensions such as gender, class, ethnicity and age combine to undermine the status and power of individuals. Such situations are often not properly understood by the police and other authorities in the mainstreamsociety.
REFERENCES
Hamdar, A., Testimonies on Honor Crimes, XVII, AL•RAIDA, p. 22•23, 2000.
Jehl, D., Arab Honor‘s Prince: .4 Woman‘s Blood [Special Rep.], N.Y. TIMES, p.9, June 20, 1999, available at 1999 WL 30524917.
Hammmond, S.H., Essay, CIVIL SOCIETY, p.17•19, 1998.
Shaaban, B., Both Right and Left Handed, p.77, 1988.
Abu•Odeh, L., Crimes of Honour and the Construction of Gender in Arab Societies, in Feminism & Islam: Legal and Literary Prespectives, Mai Yamani ed., p. 149, 1996.
Kurkiala, M., Interpreting Honour Killings: The Story of Fadime Shindal (1975•2002) Swedish Press, Anthropology Today, Vol 19, No. 1, p. 6•7, February 2003.
Bhasin, K. and Menon, R, BORDERS AND BOUNDARIES, Kali, New Delhi p.58.
Sen, P., Crimes of honour; value and meaning. Honour: Crimes, Paradigms, and Violence Against Women, p. 42•63, 2005.
Ali, R., The Dark Side of Honour: Women Victims in Pakistan, Arqam, Lahore, p.98, 2001. Zahid, H., Three teenagers buried alive in ‗honour killings, Times Online, London, p.12, 2008. Dogan, R., Is Honor Killing a Muslim Phenomenon? Textual Interpretations and Cultural Representations Journal of Muslim Minority Affairs, p. 423•440, 2011.
Chesler, P., Are Honor Killings Simply Domestic Violence? , Middle East Quarterly, pp 61•69, spring2009.
Odeh, L.A, Comparatively Speaking: The Honor of the East and the passion of the West, 1997 UTAH
- REV 1, p.107
Hassan, Y., Stove Burning, Acid Throwing, and Honor Killings, (Askin, K.D. and Koenig, D.M. eds., 2000) in WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW 2, p. 587•596, 2000.
Brownlie, I., Guys and Goodwin, J., Basic Documents on Human Rights, Oxford University Press, London, p.123•24, 2006.
SEDITION LAW
Vol 2/ Issue 2/ Dec 2016 ISSN 2394•9295 Niharica Khanna
B.B.A LL.B(H) 8th Semester
AmityAmity Law School, Noida (U.P) Email Id: : niharica.khanna13@gmail.com
ABSTRACT
Sedition is defined as the illegal acts done of inciting people against the government in power. Sedition is any act or speech which incites anybody to form of anti•national views against a government or is probable to disrupt the public peace or harmony of the state. punishment for seditious offences is harsh with minimum seven years of imprisonment which may extend to life imprisonment. It is a cognisable, non•bailable and non•compoundable offence triable by a Court Of Sessions. Section 124A of the Indian Penal codes is that the prosecution must prove to the hilt that the intention of the accused is to bring into hatred or contempt or excite any form of anti•national views towards the Government of India or Government of the State in India. Sedition is a permissible restriction under Article 19 (2) of the Indian Constitution which states that an reasonable restriction may be imposed by the government.
Key words:sedition, speech, disruption
INTRODUCTION
The first impression of Sedition law came through during the period of colonial India, through Clause 113 in the Draft of the Indian Penal Code, which was proposed by Thomas Babington Macaulay in 1837. It laid down that seditious proceedings of all kinds were to be subject to official scrutiny within the ambit of Section 124A of the Indian Penal Code. The first application of seditious law was in the Queen Empress Vs Jogendra Chundra Bose , wherein the accused Editor of ― Bangobasi‖a newspaper was charged with Sedition in the year 1891,forhiscriticismofthe―AgeofConsent‖Billinhisarticlestatingthatthe―AgeofConsentBill―was catastrophic to religion and was being forcefully imposed on Indians. The Privy Council later widened the interpretation pronouncing that any speech or writing which evinced disloyalty or ill feeling towards the government would fall under the domain of Sedition and persons guilty of such Seditious acts could be prosecuted and punished for committing the offence of Sedition. The main object of the colonial government was towards enactment of Sedition law to quell Indian freedom struggle and retain imperial power .During the freedom struggle, Sedition law targeted renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie Besant and many others to curb and control the movement of freedom by the Britishgovernment.
Under the Indian Penal Code, punishment for seditious offences is harsh with minimum seven years of imprisonment which may extend to life imprisonment. It is a cognisable, non•bailable and non• compoundable offence triable by a Court Of Sessions. The highly subjective nature of the offence makes it necessary that
courts determine on a case•to•case basis if any threat is caused to the stability of the State or its democratic order.
SEDITION LAW
Sedition law is not defined anywhere under the Indian Laws including the Constitution of India. However it has been the subject matter before Courts from time to time. In Brij Bhushan Vs State of Delhi , which is considered to be a landmark judgement for implementation and understanding and a turning point in the historyofSeditionlawinIndiaitwasheldthat―TheframersoftheConstitutionmusthavethereforefound themselvesface toface withthe dilemma astowhether the word―sedition‖shouldbe introducedunder Article 19(2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder. In these circumstances, it is not surprisingthat theydecided not to use the word―sedition‖ in clause (2)butusedthe moregeneral words which cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the state usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore, it is difficult to hold that public disorder or disturbances of public tranquillity are not matters which undermine the security of the State.‖ Sedition is a permissible restriction under Article 19 (2) of the Indian Constitution which states that an reasonable restriction may be imposed by the government or the deemed authority against freedom of speech and expression under the interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Sedition law is an punishable criminal offence under Section 124A of Indian PenalCode.
A person is entitled to form opinions and criticize about the ways and various polices of the Government of India, but this act is subdued under reasonable restriction that it shall not incite or inflame any person to express any anti national views or any form of violence against the government. If a person intentionally does incite a person or any form of violence against the government of India, it is considered as an act of Sedition. In the case Ramesh Thapar vs. State of Madras , the Hon‘ble Apex Court held that the act of criticising the government, exciting disaffection or bad feelings towards it is not regarded as a justifying ground for restricting the freedom of expression and of the press unless it is to undermine or overthrow the security of the state. Therefore the constitution requires a line to be drawn in the field of public order or tranquillity marking off maybe, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of theState.
- SECTION124A
Section 124A of the Indian Penal Code1860, lays down the concept of Sedition Law in India. One of the ingredients of Section 124A of the Indian Penal codes is that the prosecution must prove to the hilt that the
intention of the accused is to bring into hatred or contempt or excite any form of anti• national views towards the Government of India or Government of the State in India. The essence of the Law of Sedition is the intention with which the language is used by the accused, and what is rendered punishable under Section 124A of the Indian Penal Code is the intentional attempt, successful or otherwise, the arouse feelings against the government to bring the act under the ambit of Section 124A.Law of Sedition in India is substance based and the prosecution must necessarily prove that the intention of the accused was malafide and too induce anti•national views in the mind of the people of the country.
In Maneka Gandhi vs. Union of India , the Supreme Court held that the freedom of speech and expression which is our fundamental right is not confined to geographical limitations, it carries with it the right of every citizen to gather information and to exchange thought with others, not only in India but abroad also.
The essence of Sedition Law in India under Section 124A of the Indian Penal Code is the language in which the speech is presented and the intention has to be judged primarily from the language itself to understand whether the speech or an act invokes anti national views in the mind of the public or not.
While forming an opinion as to the character of the speech or act charged with Sedition, the speech or an act must be looked at and taken as a whole, freely and fairly without giving undue weight to isolated passages and without pausing upon an objectionable sentence here or a strong word there and in judging of the intention of the speaker, each passage should be considered in connection with the others and with the general drift of the whole. The provision of Section 124A of The Indian Penal Code is very wide as well as strict; they cover everything that amounts to defamation of the Government or inciting anti•national views however excluding any criticism of the government which is in bona fide intention of any act or measures of the government. If the government of the state comes into the court and asks for a decision from a judge or magistrate whether particular conduct is or not within the terms of section 124A, the court must express a perfectly fair opinion as between the parties apart from its own ideas of political expediency. Unfortunately the terms of section 124A are wide and even generally regarded justifiable speeches would come within itsterms.
The gist of the offence under section 124A merely lies in the intention of the writer to bring hatred and contempt against the government. It should not be gathered from an isolated work or sentence in a stray of passages without a fair reading of the whole article or speech as a whole and only thereafter a judgment must be pronouncedwhetherthisactorspeechamountstoseditionundersection124AoftheIndiaPenalCodeornot
.Any speech which suggests even generally that the government established by law is thoroughly dishonest and unfair and steps should be taken either by violence or by threat of violence to abolish it directly comes within the provisions of section 124A of the Indian Penal Code.
In the law of sedition in India,it is considered irrelevant whether any outbreak of rebellion is caused by the publication of seditious material or speech or any act which is seditious in any manner. If the accused intended to cause any disturbance or incite the public with his anti•national views or an act which arouses anti•national feelings it will be an act of sedition.
In the famous case of Arundhati Roy and Others the accused were charged under Section 124A, 153A, 153B, 504 and 505. A FIR was lodged under a directive orders from the High court of J&K. It was alleged that
Arundhati Roy and others had made anti•national speeches at a conference and Arundhati Roy had shared the dais with Maoist sympathisers. Although Arundhati Roy was found held guilty for contempt of court
―scandalising its authority with mala fide intentions‖ the Court however held that the prosecution had failed to Sedition against Arundhati Roy.
DIFFERENCE BETWEEN TREASON AND SEDITION LAW
Treason and Sedition law are generally considered to be similar in nature and are applied to cases individually or against organisations who have acted in defiance of establishment. The main difference between treason and Sedition law is that treason is a more grievous offence than sedition. Treason refers to the act of brazen defiance against one‘s own government in a bid to bring harm or to overthrow the government. If you owe alliance to your government but do something to overthrow the government or betray your state by harming its interests and by helping an enemy state, you are liable to be charged with treason whereas sedition prohibits the citizens from acting in a particular manner, through anti•national speeches or any act which incites people to have any anti national views. Therefore the basic and main difference between treason and sedition can be stated as the cause of action of theact.
CONVICTION UNDER SEDITION LAW
In order to convict a person under the law of sedition, it must be proved that the accused attempted or successfully brought hatred or contempt to excite disaffection towards the government of India or state or that such disaffection was towards the government established by law in the country. An accused person may be legally tried and convicted in one trial under sections 124A and 153•A, of the Indian Penal Code.
In the case KedarNath Singh vs. State of Bihar , the accused Mr KedarNath Singh was charged with sedition under section 124A and 505•(b) of the Indian Penal Code, and was convicted and sentenced to undergo rigorousimprisonmentforoneyearonthegroundsofantinationalcontentsinhisspeechwhichwere―Today the dogs of the C.I.D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. To•day these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well‖. In appeal by the convicted persons, the Court upheld the conviction and the sentence while dismissing the appeal. Section 124A of the Indian Penal Code which makes sedition an offence was held to be constitutionallyvalid.
Section 124A of the Indian Penal code however has taken care to indicate clearly that strong words under lawful means used to express disapprobation of the measures of the Government with the view to their improvement or alteration would not come within the ambit of the section. Similarly comments however, strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of the those acts or measure by lawful means that is to say, without exciting those
feelings of enmity and disloyalty which imply excitation to public disorder or the use of violence. In Maneka Gandhi versus Union of India , it was held that the freedom of speech and expression is not confined to geographical limitations, it carries with it the right of the citizens to gather information and to exchange thought with others not only in India but abroad also . Criticising and drawing general opinion against policies, administration and government decisions within a reasonable limit, which does not incite anti national views in the mind of the public, is permissible under the law onit.
RECENT CASES UNDER SEDITION LAW
In a recent event at Jawaharlal Nehru University, Delhi anti national slogans were raised inside the campus in a protest against the execution of 2001 Parliament attack convict Afzal Guru and Kashmiri separatist leader Maqbool Bhatt, and for ―the struggle of Kashmiri people for their democratic right to selfdetermination‖. The students organising the event had pasted posters inviting people to gather for a protest march against the
―judicialkillingofAfzalGuruandMaqboolBhatt.JNUstudentunionPresidentKanhaiyaKumarandUmar Khalid were arrested on charges of sedition for organising an anti•national protest. The case is pending decision and is likely to clear the mist about Sedition Law and its application in the presenttimes.
Amnesty International India in Bengaluru organised an panel discussion on the topic ― DENIED Failures in Accountability for human rights by security forces in Jammu& Kashmir ― the event involved discussions with families from Kashmir, who were featured in a 2015 report on the same and who had travelled to Bengaluru to narrate their personal stories of grief and loss. Among those who spoke at the event were the family of Shahzad Ahmad Khan, one of the men killed in the Macchil extrajudicial execution, where five Army personnel were convicted and sentenced to life imprisonment. Further , an F.I. R was registered under the Indian Penal Code sections– 142 (being member of an unlawful assembly), 143 (whoever is a member of an unlawful assembly), 147 (rioting), 124A (sedition), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), was filed by the Akhil Bharatiya Vidyarthi Parishad (ABVP), a student organization affiliated with the Rashtriya Swayamsevak Sangh (RSS), which is linked to the Bharatiya Janata Party , which stated that Amnesty International India raised anti national slogans towards the end of the event . This matter is also pending decision and will throw light on the Sedition laws which many allege are outdated and somehow hit the principles of freedom of Speech in the Constitution ofIndia.
CONCULSION
Sedition law is a very crucial part of the Indian legal system, it is enumerated under section 124A of the Indian Penal Code which states that whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government estab¬lished by law shall be punished. An accused may be convicted under sedition law only after the scrutiny of the cause of action takes place and it is held that such material or speech expressed anti national views against the government of India. An convict of sedition law shall be punished with imprisonment from 7 years upto life imprisonment. The essence of sedition law in India as under section 124A of the Indian Penal Code is the language in which the speech is presented, the intention has to be
judged primarily from the language itself and it is considered irrelevant whether any outbreak of rebellion was caused by the publication of seditious material or speech or whether the seditious act was intended to cause disturbance or incite the public with anti•national views. It is of grave importance that while applying Seditious Law the line drawn by the rights of freedom of speech in the Constitution of India needs to be completely protected. Another aspect in respect of Laws of sedition having become irrelevant and outdated in the present time and need to be reworked and rewritten. Many Governments of the World have in fact removed Sedition as a crime from their Law codes. The Government needs thus urgently to see whether a law introduced by the British to curb our Freedom struggle is relevant in today‘s India. Surely the Court will pronounce to clear this cloud.
REFERENCES
- Article 19 (2) of The Constitution of India,1950 (1893) ILR 20 Cal 537
- AIR 1950 SC 129
- Article 19 (2) of The Constitution of India ,1950[5] AIR 1950SC124
- Section 124A of the Indian Penal Code1860 AIR 1978 SC597
- Dr Ram Manohar Lohiya National law journal – ‗SEDITION LAW ‗ also see http://www.rmlnlu.ac.in/webj/sedition.pdf (last visited on15th January, 2017)
- AIR 2002 SC 1375
- AIR 1962 SC 955
- AIR 1978 SC 597
BEEF BAN: AN ANALYSIS
Vol 2/ Issue 2/ Dec 2016 ISSN 2394•9295 YaminiRathore EktaJain
B.ComLL.B(H) B.Com LL.B(H)
5thSemester 5thSemester
Amity LawSchool,Noida Amity Law School, Noida EmailId: yamini9431@gmail.com Email Id:ektajain3125@gmail.com
ABSTRACT
The concept of Hinduism is based on the omnipresence of the Divine ,and the soul is present in all creatures including cattle‟s, which confers that killing an animal would be a sin, thus by that natural life cycle of an animal is been obstructed. A cow is considered to be the abode of all the Gods, it is considered the pious animal among all the animals. In spite of being so religious, still India is among the top exporters as well as consumer of beef. Just for the sake of earning capital, beef is being exported in large amount from our country which mutilates the religious sentiments of a particular committee. In this paper, we try to focus on the reverence of cow from ancient period and how the process of cow slaughtering initiated in India. Here, we also try to view recommendations of various committees along with the legislations passed by the state for banning beef in India so as to protect and preserve the cow and its progeny which in turn enhances the cattle wealth in ournation.
Key Words: Cow Slaughter, Constitution, Judicial Trend
INTRODUCTION
―Dhenunam asmi kamadhuk‖[1]these lines were said by the Lord Krishna in bhagwad gita which means that among cows I am the wish fulfilling the cow.
Worshiping a cow is a myth not only in India but also in Nepal and Burma, cow has been considered as a sacred animal in our country since Vedic period. Merely the gesture of showing respect to cow makes the false representation that Hindus worship a cow. India is among the top 10 world largest producer of the Cow Milk. To the hindus cow is as a symbol of Earth it feeds and give all, which represents the generosity of cow as of our beloved mother earth which shows the life and supporting the life of the humans. It takes nothing more than just water, grass and grain and gives vast variety of products which are made from itsmilk.
HISTORICAL RELEVANCE
The significance of cow came in existence in the Vedic period by the arrival of lord Krishna, the Vedic period was a more a pastoral rather than agricultural. The life of the people at that time was bounded or we can say that was shackled with cow. In bhagwad gita it is very well said in Sanskrit
Aayudhaanaamahamvairam dhenoonaamasmi Kaamadhuk |
Prajanashchaasmi Kandarpaha Sarpaanaamasmi Vaasukihi ||[2]
In this verse Lord Krishna sys that among all cows he exhibit as a Kamadhuk (kamadhenu) which means the wishful filling cows widely and popularly known as Saurabhi Cows. Saurabhi cows are who and how are they so elevated and prominent that they represent a significant portion of the energy of Lord Krishna has been revealed in the information depicted in the Anusasana Parva of the Mahabharat by Krishna Dwaipayana Vyasa.
The saurabhi cows descended from the spiritual world, and in India sacred cows are the descendant of the saurabhi cows. All cows in the world are somehow the factual descendant of the sacred cows of India they are pious as well as should be respected, cared and lovingly cared. No one should cause any harm in any way to cows and should not even think of eating a flesh of cow as it is the most sinful action in all thecreation.
To abrogate the consumption of cow meat has also been scriptured in the RIG VEDA (10.87.16•19) The fiend who smears himself with flesh of cattle, with flesh of horses and of human bodies,
Who steals the milch cow‘s milk away, O Agni tear of the heads of such with fiery fury.
The cows gives milk each year, O Man• Regarder let not the Yatudhama ever taste it. If one would him with the biesting, Agni pierce with thy flame his vitals as he meets thee.
Let the fiends drink the poison of the cattle, may Aditi cast off th evildoers.
May the God Savitar give them up the ruin, and be their share of plants and herbs denied them. Agni, from days of old thou slayest demons shall Raksasas in fight o‘ercome thee.
Burn up the foolish ones, the flesh – devourers let none of them escape thine heavenle arrow.[3]
The lines which are plucked out from the RIG VEDA construe that cow slaughter and meat eating as blasphemous while rest of it depicts the stealing of cattle and milk by the demons and evil spirits.
In that era, cow use to be the backbone of the family, life of the hindus were revolving around the cowfom its dairy products to tilling the field. The cow was considered as a caretaker which led to the identification of maternal figure. Hence, the name GAUMATA was given.
In Vedic span cow slaughter wasn‘t a prominent topic, but after 1000A.D. with the invasion of various Islamic rulers of Arab and Turkish origin it became influential as well as controversial for Hindus. In Islamic tradition, they beheaded goats and sheep‘s as a sacrifice. These rulers were not in a habit of eating beef but after arriving in India, they started sacrificing cows in India, on the occasion of Bakri•Id.
Later with the arrival of Ranjit Singh, founder of Sikh Empire from 1801• 1839, he banned cow slaughter throughout his domain.
Babur, who invaded India and established the Mughal Empire banned cow slaughter in his empire and later many Mughals like Akbar, Jahangir, Ahmed Shah imposed restrictive banned on cow
slaughter, but Aurangzeb whose idea was to convert India into Muslim country legalized cow slaughter, in fact he converted one of the Jain temple namely CHINTAMANI PARSHVANATH into a mosque and ordered that cow to be slaughtered in hat sanctum, and later his father restored that building to Hindus.
The last Mughal emperor Bahadur Shah Zafar banned cow slaughter in his reign.
The dawn of British raj in India, changed the scenario of India, britishers had a tradition of eating beef and it was a prominent food for them. the Indians Rebellion of 1857 which was against the British East India Company in which the cow‘s veneration played a prominent role. Some renowned leaders of our country whose aim was to liberate India such as Mahatma Gandhi, Bal Gangadhar Tilak, Lal Lajpat Rai, Rajendra Prasad started to build enthusiasm among people to participate in the Swadeshi Movement and assured that once the goal is achieved, the first step of Swadeshi Government will be to ban the cowslaughter.
In 1940, the Indian National Congress set up an special committee and gave view that cow slaughter should be strictly prohibited in the country but other committees were against the view of prohibiting cow slaughter, as the leather of cow after slaughter should be sold and exported to obtain foreign exchange. In 1944, shortage of cattle made an anxiety to the government and the result of which was banning cow slaughter by the British government in India. Some historical survey between 1717• 1977 reveals that out of 167 communal riots between Hindus and Muslims 22 cases were of cow slaughter.[4]
POST• INDEPENDENCE PERIOD
Central government in 1950, directed the state government not to prohibit cow slaughter strictly as the good prices in export market will no longer be available, as well as total ban will be pernicious to export trade.Later, in July1995the government ofIndia statedbefore the Supreme Court ofIndia,―It is obvious that the central government as a whole is encouraging scientific and sustainable development of livestock resources and their efficient utilisation which inter alia include production of quality meat for export as well as for domestic market. This is being done with a view of increasing the national wealth as well as better returns to the farmers. The government has started releasing grants and loans for setting up of modern slaughter house.‖[5]
JUDICIAL TREND
Legislations
In India, numbers of states have legislations in place to ban slaughter of cows. But now, in some states, only cow slaughter is banned or prohibited which implies slaughter of buffaloes, bulls, bullocks and other cattle can be made forconsumption.
In other states like Punjab, Rajasthan, Himachal Pradesh all forms of cattle slaughter is banned. Although there is no nationwide ban on consumption or sale of beef, allowing for importing or sale and for restaurants to serve meat except inMaharashtra.
Goa, Daman & Diu etc. ban slaughter of young cows but allow slaughter for old and sick cows. While Assam, West Bengal requires a ‗FIT for SLAUGHTER‘ certificate for each cow before it is slaughtered, depending upon the age, gender, economic viability which is given when cattle turns economically useless.
There are some states which allow the slaughter of cows even without the need of certificate like Manipur, Meghalaya, Sikkim, Kerala, Arunachal Pradesh, Mizoram, Nagaland and Tripura as the beef consumption is highest there. Kerala holds the distinction of being the only south Indian state having no laws on cattle slaughter.
Constitutional support for ban on cow slaughter
Laws governing cattle slaughter vary from state to state.
―Preservation, Prevention and improvement of stock and prevention of animal diseases, veterinary trainingandpracticeisENTRY15ofSTATELISTofVIIScheduleoftheConstitution(article246)
- state legislature has exclusive powers for prevention, protection of slaughter of cattle.‖[6] Prohibition of cow slaughter is also imbibed in DIRECTIVE PRINCIPLES OF STATE POLICYcontainedinarticle48oftheConstitutione.―thestateshallendeavourtoorganizeagricultureand animalhusbandryonmodernandscientificlinesandshall,inparticular,takestepsforpreservingand improvingthebreeds,andprohibitingtheslaughterofcowsandothermilchanddraughtcattle.‖[7]Article51A(g)statesthat―itshallbethedutyofevery citizenofIndiatoprotectandimprovethe natural environment including forests, lakes, rivers and wild life, and to have compassion for livingcreatures.‖[8]
Complete ban on slaughter of cows is in consonance with ARTICLE 48, ARTICLE 246(ENTRY 15, STATE LIST) and ARTICLE 51A.
This gives power to state to enact legislations banning cow slaughter which will help improving the fundamental compassion towards livingcreatures.
Equilibrium of Right to Trade with Protection of Cows:
ARTICLE 19(1) (g) of the Indian Constitution states about the fundamental right to trade which is not an absolute right. This right of trade works in consonance with the reasonable restrictions imposed on right to trade in article 19(2) which implies that the state cannot make any law which restricts the exercise of the right conferred in the interest of the sovereignty and integrity of India, friendly relations with foreign states, public order, security of state, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
These restrictions on fundamental right to carry on trade or business are imposed to protect the interest of general public and are held constitutionally valid in the eyes of law.
As in regard with the cow slaughter, total ban restriction actually tilts more towards being unreasonable. Complete ban is unfair to the butcher communities and put farmers in burden who have to maintain cattle which is no longer of use to them. If a cattle is held to be economically viable and is fit for agricultural purpose, then the legislation imposing a ban on slaughter of the same is considered as reasonable and necessary and is in constitutional consonance with article 19(1).
Laws banning cow slaughter –its validity and constitutionality:
With the inclusion of ARTICLE 246(ENTRY 15 STATE LIST) and ARTICLE 48, several states enacted legislations that prohibits either consumption of beef or the sale of cows (possession) or both.
Madhya Pradesh enacted Madhya Pradesh Agricultural Cattle Preservation Act 1959 that prohibited transport, sale, purchase and disposal of cattle and their progeny (bovines also). These laws however have gone through judicial scrutiny.
Supreme Court decision in Mohd. Hanif Quareshi[9]case in 1958 provided the benchmark for the laws regulating cow slaughter and act as a precedent as was followed for nearly 50 years, wherein a petition was filed by three thousand Muslim Butchers. The petitioners argued that the prohibition on the slaughter of cattle imposed through the CP & BERAR ANIMAL PRESERVATION ACT 1949 as well as the UTTAR PARDESH PREVENTION OF COW SLAUGHTER ACT 1955, curtailed their fundamental freedom of occupation under Article 19(1) (g) as well as denied them of their religious customs of killing goats and sheep‘s during Bakrid, infringing Article 25 and that the total ban was not in the interest of generalpublic.
Supreme Court by 5 judges bench held that:
Total ban on cow slaughter by state is allowed to restrict fundamental freedom by imposing reasonable restrictions in order to uphold Directive Principles of State Policy laid down in Article 48.
Court while considering petitioners contention on right to practice any profession or to carry on any occupation relied on the usefulness of bovine cattle in agrarian economy which includes in milk production, use of bulls for draught power and manure for agriculture and thereby concluded that a total ban on she buffaloes and working bullocks or breeding bulls as long as they are capable of being used as milch or draught cattle was also reasonable and valid and rejected the arguments on right toequality.
Rejected the argument that impugned Act violated Muslims right to profess their religion under article 25 because it found that the sacrifice of cows as a religious duty was not obligatory.
There have been several other challenges to Acts regulating cow slaughter on the grounds of right to religion and right to profess any occupation as stated in Hashumatullah v. State of MadhyaPradesh[10], Abdul Hakim & others v. State of Bihar[11], Mohd. Faruk v. State of MadhyaPradesh[12]wherein Supreme Court held that the total ban on cattle slaughter was not permissible if, under economic conditions, keeping useless bull or bullock be a burden on society and therefore not in public interest.
In State of West Bengal v. Ashutosh Lahiri[13], three judge bench of Supreme Court rendered an important decision. It was contented that state of West Bengal had wrongly invoked section 12 of West Bengal Animal Slaughter Control Act 1950, when it exempted the slaughter of healthy cows on Bakrid occasion on the ground that it was required for the religious purposes of Muslim communities. Power to grant such an exemption was challenged where Supreme Court uphold the Calcutta High Court‘s decision that the slaughter of cows by Muslims on Bakrid was not a religious requirement and therefore the exemption was outside section 12‘s scope.
While the precedent laid down in HANIF QUERESHI case was reversed in the case of MirzapurMoti Kureshi Kassab[14]in 2005 where 7 judge bench accepted Gujarat Government‘s assertion that new technological and veterinary care developments had extended the economic life of cows. The petitioners here challenged the amendments in section 5 of the Bombay Animal Preservation Act, applicable to state of Gujarat as well, which changed the ban on slaughter of bulls and bullocks under the age of 16 to completion as they become economically unbeneficial over 16 years of age. Court held that preservation and protection of agricultural animals is necessary because of the growing adoption of non•conventional energy sources like biogas, dung for fuel, manure which can even be generated once they become old and therefore can‘t be said as useless. As the protection conferred by the impugned enactment on cow progeny is needed in the nation‘s economy interest as blanket ban on slaughter of bulls and bullocks of all ages in addition to slaughter of cows, was valid and consistent with Article 19(1) (g) and Article14.
Subsequently, in the judgement delivered in Hinsa Virodhak[15]case of 2008, Supreme Court held that the shutting down of slaughter houses for a limited period of time during Jain festival was reasonable and held that the absolute ban in MIRZAPUR case was unconstitutional as the large number of people are non•vegetarian and cannot be forced to become vegetarian for a long period and what one eats is one‘s personal affair and is a part of right to privacy articulated in Article 21. The state cannot prevent a citizen from possessing and consuming a particular type of food which is not obnoxious.
Constitutionality of legislation regulating slaughter of cows and beef consumption in India articulated in the Maharashtra Animal Preservation Act 1978.
The Amendment Act was passed in 1995 by Maharashtra legislature which received President‘s assent 20 years later. Section 5 of the act sought to extend the bans on slaughter of cows and calves to bulls and bullocks and section 5A and section 5B prohibits the transport, export as well as sale, purchase, disposal of cows, bulls and bullocks for slaughter purposes. Section 5C prohibits the possession of the flesh of cows, bulls or bullocks slaughtered in contravention of the Act. Section 5D prohibits possession of beef, whether or not obtained through lawful slaughter from another state and further the Amendment Act also stipulated the penalty on the accused if any such act is being done in contravention of such provisions.
Maharashtra Beef Ban Law had been amended basically to include section 5D. The Bombay High Court while dealing with contentions before it, determined the constitutionality of the extension of the ban on cow and calf slaughter to bulls and bullocks as was bound by the precedent set in MIRZAPURcase.
Court has not struck the provision imbibed in Section 5A of Beef Ban Law, restricting people from transporting bovine animals outside the state with the knowledge that it will be slaughtered. Court reasoned that if anyone transports a cow, bull or bullock to a place outside Maharashtra for slaughter; the State of Maharashtra cannot term the act of slaughter as an offence as it is outside their legislative competence to do so. Court upheld the provisions validity stating there was a direct and proximate nexus between the section and the object of preserving the cattle inside the state.
Section 5C which deals with the possession of the flesh of the cow, bulls or bullocks slaughtered in contravention of the Act, was upheld as the prohibiting had the direct nexus to the objective of the Act as possession per se is no offence and includes conscious possession as an offence.
Court has struck down the provision of the law dealing with procurement from outside Maharashtra (section 5D), as it is unconstitutional and infringes the right to privacy included in the right to life and personal liberty (Article 21), as it includes the right to eat food of one‘s own choice. If a person procures beef from a place where it is legal to consume and possess beef, law cannot prohibit him from eating it. The court here relied on the judgement of Supreme Court in HINSA VIRODHAK which addressed that ―the state cannot prevent a citizen from possessing and consuming a food which is not obnoxious‖ and if state does so, it amounts to infringement of Article 21.
The judgement clearly allows import of beef from outside but the consumers and the sellers of beef have to obtain a proof of invoice to show that the meat is procured from outside, and the onus lies on the police to prove the guilt of someone found in beef possession and to examine the same. Importers
and exporters have to be monitored then carefully and also the starting of the procurement process is to be traced.
“Therefore, preventing citizens from eating beef obtained from a state where there is no prohibition on slaughter was not in consonance with the objective of protecting the cow progeny, from slaughter within the state, and it restricts the scope of state intervention beyond agricultural interest.‖
REALITY CHECK
In 1947, the Ministry of Agriculture appointed The Cattle Preservation and development Committee, which raised the most prominent issue banning cattle slaughter, recommending preservation of cattle wealth and hence promoting its development. An Expert Committee under the Chairmanship of Sardar Bahadur Datar Singh was constituted by Government Resolution dated 19th November 1947G. The introductory part of the Resolution reads asfollows:
―It has been brought to the notice of the Government of India that large numbers of cattle are annually slaughtered in this country for meat, that this slaughter is often indiscriminate, that it includes animals of all ages and qualities and that the slaughter results in short supplies of milk and work bullocks and in the depletion of the country‘s cattle wealth. There has been considerable agitation in the press, on the platform and on the floor of the Legislature in regard to this matter, and Government has been urged to take immediate steps to prohibit slaughter by legislation. As this is a complicated socio•religious subject the Government of India have after careful consideration decided to appoint an Export Committee of officials and non•officials to consider the question in all its aspects and to recommend a comprehensive plan of action which can be put into immediate effect for preserving the cattle wealth of the country and for promoting its development.
In considering, this particular, attention should be given to:
- The cause and the extent of periodical variation in the population of each class of cattle and the effect of such variation on the supply of milk and bullockpower.
- Detailed examination of the available statistics of slaughter, proportion of useful animals therein and an estimate of the material loss causedthereby.
- Population trend of old and unproductive cattle and the problem of their maintenance and economic utilization in view both of shortage of cattle feed and of prevailing sentiments againstslaughter.
- How agencies like Gaushalas and Cattle Protection Societies and Salvage Centres can be utilized for preserving cattle wealth and for promoting itsdevelopment.
- Review of existing regulations regarding restrictions on cattle slaughter and of the administrative arrangements for the enforcement of theregulations[16]
Also, the slaughter of cattle is not desirable in India under any circumstances whatsoever, and that its prohibition shall be enforced by law. The Committee suggested that, the first stage, which should be given effect to immediately, should cover the total prohibition of slaughter of all useful cattle other than a) animals over 14 years of age and unfit for work and breeding and b) animals of any age permanently unable to work or breed owing to age, injury or deformity. The committee also suggested that unlicensed and unauthorized slaughter of cattle should be immediately prohibited and made a cognizable offence under law. In the second stage, the Committee envisaged that slaughter of cattle should be prohibited totally. The Committee also made suggestions for arrangements for maintenance and care of serviceable and unproductive cattle and for development of feed and fodder etc.[17]CONCLUSION
Life of a human being revolves around the four basic fundamental principles• DHARMA i.e.(religion), ARTHA(aim), KAMA(preaching) and MOKSHA(liberation). Cow slaughter, being the leading factor behind incessant communal riots in India, resulting in the deaths of many, leads to the violation of the four basic fundamental principles of a human life as stated above.
In spite of various legislations articulated in Article 48, Article 51A (g) and Article 246(entry 15, state list) of the Indian Constitution banning cattle slaughter, India is still the largest exporter and consumer of beef. Slaughtering of cows is not considered merely a religious rather a legal offence which should be penalized. Stringent laws for the protection and prevention of cattle wealth have to be executed by the Central Government and not merely by the State Governments , as it is vital to respect the sentiments in a pluralistic democracy.
REFERENCES
- Sanskrit shlok by lord Krishna given in srimad bhagwad gita : in chapter 10 verse28
- Sankrit shlok by lord Krishna given in srimad bhagwad gita : in chapter 10 verse28
- Lines stated in RIG VEDA (10.87 16•19)
- Report on National Commission on cattle, chapter II(Cow Protection in Pre Independence India)
- ab Report of National Commission on Cattle• Chapter I (13 Constituent Assembly Debate On CowProtection)
- CONSTITUTION OF INDIA, 1950
- CONSTITUTION OF INDIA,1950
- CONSTITUTION OF INDIA, 1950
- Hanif Quareshi & Other vs The State Of Bihar( AIR 1959 SCR629) 10. 1996(4)SCC391
- AIR 1961 SC 448
- 1970 AIR 93, 1970 SCR(1) 156
- 1995 AIR 464, 1995 SCC(1) 189
- State Of Gujarat vs Mirzapur Moti Kureshi Kassab; (2005)8 SCC534
- Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat & Ors. AIR 2008 SC1892
- 2 CHAPTER II EXECUTIVE SUMMARY(http://dahd•archive.nic.in/dahd/reports/report•of•the• national•commission•on•cattle/chapter•ii•executive•summary.aspx)
- 4 CHAPTER II EXECUTIVE SUMMARY(http://dahd•archive.nic.in/dahd/reports/report•of•the• national•commission•on•cattle/chapter•ii•executive•summary.aspx)
BLASPHEMY LAWS AND RELIGIOUS SENSITIVITIES: WHETHERALTERATION DESIRED OR NOT?
Vol 2/ Issue 2/ Dec 2016 ISSN 2394•9295
ShauryaSharma BhartiKhera
B.ComLL.B(H) B.Com LL.B(H)
6thSemester 6thSemester
Amity LawSchool, Noida Amity Law School, Noida EmailId:ssharma9618@gmail.com EmailId:bharti.khera@live.com
ABSTRACT
Religion as defined and accepted universally, can be said as the beliefs of the people, behaviour of people, ethics followed by the people, and as the faith of the people in the supernatural powers or the supernatural being(s). But no two person existing can be expected to be alike in matters of belief, behaviour, or ethics. Every person existing have right to believe what he/she finds to be appropriate, and if his/her beliefs are different from any other person or a community of person then that cannot be considered as a crime. Blasphemy law though might have aimed to provide relief to the people but in the present scenario they have created a lot of mischief around the globe. These laws are being mishandled by some of the people in the society which has created a havoc.
The present blasphemy laws though only punish those who show insult or a feeling of disgrace towards once religion but at the same time these laws do not provide the ambit of the words „insult‟ and „disgrace‟. Due to the non-disclosure of the ambit, these laws are vague, subjective and also inconsistent laws. At the same time, they also violates some of the very basic fundamental rights of the people. The article does not aim for defunct of the blasphemy laws but for alteration in the laws so that these laws may be universally accepted and also on the same hand, these may benefit the society at large instead of creating amayhem.
Key words: Blasphemy, India, Constitution
BLASPHEMY
An essential attribution of national freedom is the right of the people to give to themselves a Constitution of their choice- a Constitution most suited to their genius, ethos and aspiration i. One such freedom provided by the Constitution of any country is Freedom of Expression and Freedom to Religion. Blasphemy laws are not the way out for tackling the cases of freedom of expression and religious sensitivities because of multiple reasons. There have been magnitudes of cases which prove that blasphemy laws are subjective, inconsistent and absurd, and are therefore not the way for tackling the aforesaid cases.
Blasphemy is an act of insulting or showing a feeling of disgrace for gods of any religion, to a holy or religious person, sacred or religious things, towards something considered to be sacred or religious. While Blasphemy laws are a way of limiting freedom of expression, opinion and speech relating to blasphemy, some people and religions consider blasphemy as a religious crime. Blasphemy laws are also known as hate speech laws in some countries. Blasphemy laws provide remedy to those people or group of people who feel insulted by the act or words of a person against their religion. These laws work as a procedure to forbid or ban the religious insult, defamation of religion, contempt of religion or religious feelings. Many countries do not have any law existing against blasphemy or hate speech while in some countries firmly established blasphemy laws are no longer executed. The last person to be guilty for the act of blasphemy in Great Britain was in 1697ii while in the United States of America in1952iii.Insomeofthejurisdictions,blasphemylawsaresaidtobea―Deadletter‖i.e.theyareno longer enforceable by law but are there in the law. For example in Hong Kong, Japan, and Taiwan blasphemy laws are said to be a dead letter. Every country has their own separate blasphemy laws or hate speech laws and accordingly have their own punishment for the offenders of blasphemy. Some countries have very rigorous punishments for the act of blasphemy; for example: a Pakistani child was arrested in Islamabad by Pakistani police and can face death penalty for the act of blasphemy, who supposedly disrespected the pages of Quran by burning themiv. Another example would be when a person advocated secular reforms between religious and state authorities in Saudi Arabia and for this he was prosecuted for ‗insulting Islam‘ and sentenced to 10 years of jail, 10 years of travel ban, and 1,000 lashesv. While some countries have lax punishments for blasphemy; for instance: Supreme court of India found a person guilty of insulting religious beliefs of Roman Catholics, therefore he was sentenced to pay a fine of Rs. 200/- and in default of payment of fine, to undergo simple imprisonment for one monthvi. Blasphemy laws or hate speech laws helps in protecting religious beliefs and practices from the criticism or questions of the people about one‘s own religion. For example, a person wasprosecutedforpublishingofareportataconferenceonthetopic―isGodDead?‖whichquoted some statements like ―Wemust write Godoff entirely‖and that―[God] is beginningto stink‖vii.
From a research made in 2012 it was found that 44 countries including countries in Middle East and North Africa, America, Asia, Europe and Sub-Saharan Africa have blasphemy. According to a research, it was found that three-in-ten countries in the world had a high or very high level of government restrictions in 2012, while these countries included around 64% of the world‘s population. Pakistan‘s blasphemy laws had their origin in the country‘s colonial time, when British colonial rulers for the first time introduced penalties for insulting religious beliefs. These laws remained in effect till Pakistan‘s independence in 1947 and have increased in extremity since its independence. In America, blasphemy laws existed in eleven out of thirty five countries including Bahamas, where the
publication or even sale of blasphemous material is punishable for up to two years of imprisonment. There does not exist any federal blasphemy laws in America but several states still had anti-blasphemy laws on the books as of 2012. In sub-Saharan Africa only three of forty eight countries have blasphemy laws. They are least common in the sub-Saharan Africa as of 2012. Anti-slavery activists in Mauritania were charged and imprisoned for blasphemy after publicly burning religious texts to denounce what the activist viewed as support for slavery in Islamic commentary andjurisprudence.
Freedom of expression is a fundamental right that shall be practised by every individual. Freedom of expression is protected by article 19 of UDHR (Universal Declaration of Human Right) and ICCPR (International Covenant on Civil and Political Rights). UDHR and ICCPR are some of the milestone documents in the history of human rights. These documents are drafted by representatives of different legal and cultural backgrounds from all nations of world while they contain common standards of achievement for all the people and all nations. ―According to the Universal Declaration of Human Right, freedom of expression is the right of every individual to hold opinion without interference and to seek, receive and impart information and ideas through any media and regardless offrontiers‖.
Freedom of religion is another right guaranteed by article 18 of UDHR (Universal Declaration of Human Right) and ICCPR (International Covenant on Civil and Political Rights). According to the Universal Declaration of Human Right, ―Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practise, worship, and observance‖.
These fundamental rights are protected by International Human rights instruments. A blasphemy law in practise prohibits the freedom of expression when it comes to the offering of criticism, asking of questions, making an expression of mockery or contempt or ridicule or sarcasm, in any way relating to anyreligion.ApersonwasfoundguiltybecausehisnewspaperpublishedJamesKirkup‘spoem―The Love that Dares to Speak its Name‖, which supposedly vilified Christ and his lifeviii. A blasphemy law criminalizes these expressions of mockery or contempt, asking of questions and therefore offend against the fundamental rights guaranteed by International human rights framework. Every religious institution or religious group or any religious person should be open to hearing of some reasonable criticism against their religion just like the other existing groups in the society. Religion is an imagination which defers from person to person and group to group so if a person or a group have their own kind of imagination which goes against the imagination of another person or group then it ain‘t a crime. A person shall not be guilty just for having a different kind of imagination or thoughts for a religion and there is no fundamental right which guarantees not to be offended in one‘s religious feelings or that not to put up any question against the religious feelings of aperson. For example:
some Christians mayfind it ―blasphemous‖to saythat Jesus was merelyan ordinaryhuman being while onthe other handsome Muslimsmayfind it―blasphemous‖ toconsider that JesuswasNazareth
―the sonof god‖.
Both the religions have their own kind of imagination therefore neither of them can be said to be guilty of blasphemy until and unless they are proved wrong. But according to the current blasphemy law or hate speech laws, both religions have committed blasphemy and therefore such laws are not justifiable. Moreover if a person believes in a religion eternally and truthfully, then he/she need not prove it to someone else in the society just for the sake of making them believe in his or her religion. As an example, a women was forced to hide after an angry mob rushed into Farooqi Girls‘ High School in the city of Lahore just because she wrote something derogatory references to the Muslim Prophet Mohammad in a piece of homeworkix. Criticism of a religion means insult of the religion but in prohibiting the insult of a religion means prohibiting all types of enquiry and evaluation in relating to religion. But if we prohibit criticism we extremely violate the freedom of speech of the vilifier. Only if a person believes that his religion is genuine then he/she need not shield his or her religion from criticism or insult of the other people and also shielding a religion is not a social good. We can also assume that some criticism also helps the religious philosopher improve theism. While criticism also helps in removing or moulting the unlawful practices carried out in the name of religion. For example: sati practise that took place in India for a long period of time. While even if any action is meant to be taken then it should be only taken against those criticisms which are proved inaccurate and are supported with some reasonable evidences. While those criticisms which are proved to be correct should be heard for sake of correcting the flaws in the religious feelings of the religious communities. A person shall not be punished just for the sake that he passed any comment about the religion or he put up a question on the religious feeling of aperson.
With the violation of freedom of expression, blasphemy laws also violates Right to equality which is another fundamental right guaranteed by International Human Rights Instruments. Right to equality refers to equality in the eyes of law, discarding any unfairness on grounds of caste, race, religion, place of birth, and sex. Equality before law means that state cannot refuse to provide equality before the law and equal defence of the law to any person within the territories of India. So when we charge a person for blasphemy then we violate his right to equality because we don‘t give him equality in law as these laws are subjective and inconsistent laws. When a person is charged for an offence of blasphemy then his right to equality gets violated because like the other people of the society the person accused of blasphemy is not allowed to express his views in thesociety.
Another issue that can be brought forward is that existing blasphemy laws and hate speech laws at the bottom are unpleasant laws i.e. these laws are vague, subjective and inconsistent laws.Blasphemy
laws are very vague in nature i.e. they can be interpreted in many ways. For example: a person who calls for the reform or revocation of blasphemy laws, have sometimes been accused for act of blasphemy. Another such example was, a girl was accused for posting a comment on Facebook against Bal Thackeray‘s funeral and also her friend was accused for liking the commentx. In Gujarat, a person was arrested because of his Facebook post aggravated Muslims to go on riotsxi. Many people also use these laws for achieving their political goals. Some of the countries have poor blasphemy laws while some countries have very extreme blasphemy laws. There is no balance in constitution of these laws, every country have a different way to interpret these laws. Another example in concern of the matter is that, a woman was arrested by the police just because she distributed pamphlets declaring herself as a prophetxii. All these examples proves that these laws apart from being too vague are also illusory which makes them unreliable in the eyes law and that is the main reason that these laws are so much prone to be abused by people for their own benefits. Whereas United States Commission on International Religious Freedom(USCIRF) has found that blasphemy charges often are based on false accusations and used for political purposes (as mentioned above), and aggravates discrimination, violence and most importantly religious intolerance. In 2014, a Muslim human right attorney was assassinated for defending someone accused for blasphemyxiii. In some of the blasphemy or hate speech cases, the accusation is entirely malicious, based on rumours or plantedevidences.
Another issue is that many countries, which practice blasphemy or hate speech laws especially those with strict blasphemy laws, tend to face problems of religious persecution and mob violence. Religious persecution is the treatment of individual or group of individuals as a response to their religious beliefs, religious practices or lack of religious beliefs in an individual or group of individuals. Religious persecution is just the opposite of freedom to religion and therefore is another reason that violates the freedom to religion. Religious persecution has resulted in extreme level of violence in many countries. Religious persecutions have taken place since the ancient period and in different contexts. Until the 18th century, some groups of people were nearly universally persecuted for their views about religion, such as Atheists, Jews, and Zoroastriansxiv. While mob violence refers to disturbance of peace by several persons, assembled and acting with a common intent in executing a lawful or unlawful enterprise in a violent and turbulent manner. Mob violence, riot, rout, unlawful assembly all are related offences but differ from each other. But when we talk legally, mob violence is practically synonymous with riots. For example, the burning of Christian‘s properties and murder of Christians by mobs of Muslim men in Pakistan, such as this incident which took place in 2009 thatleft
6 people dead, which usually follow unlikely, malicious, unsourced rumours that someone has desecrated the Koran.
With the above mentioned argument, it can be clearly shown that blasphemy laws or hate speech laws are not the way out for tackling the cases of Freedom of Expression and Religious Sensitivities. Even if we follow blasphemy laws, then atleast three basic fundamental rights will be violated and that are freedom to expression, freedom to equality, and freedom to religion itself, which in turn impairs the other rights of the individual or group of individuals of the society. One may also even find contradiction when it is said that blasphemy laws are meant to protect a religion as they obstruct a person freedom to religion. There are so many religions in existence, the people following any of these religions need to understand and tolerate the feelings of others following the same religion or any other religion.AsVoltaire one said,―Imaynotagreewithwhatyousay, butI willdefendtothedeath your right to say it‖. It‘s better to criminalise those offenders of law who take the laws in their own hand and punish the people who commit the offence of blasphemy. The criminal procedure code should be applied to these people instead of those who commit blasphemy. The ambit of these blasphemy laws is wide and at same point also very vague. Many people use these blasphemy laws in a direction which is not mentioned in these laws itself such as a high profile case that took place in which a Christian woman was sentenced to death for the offence of blasphemy in 2010. The incident took place in 2009 where the woman was harvesting berries with a group of Muslim women, and was then accused by them for drinking from the same water bowl as them. Those Muslim women went to a local cleric and alleged that the Christian woman has blasphemed against Islamxv. Also the former governor of Punjab (Salman Taseer) and the Federal Minister for Minorities (Shahbaz Bhatti) were assassinated as they stood for the Christian woman. By this case we can clearly say that blasphemy laws are not clear in their use as we saw in the above mentioned case that a woman was just charged for blasphemy because she drank water from the same bowl which was used by the Muslim women to have water. Therefore we can say that blasphemy laws are not the way out. Some alternative laws for blasphemy should be introduced. There utilization and misutilization should be clearly specified with the. There ambit should not be as vague as compared to the current blasphemy laws. The new laws should be clear, specific, and consistent with how the today‘s world understand and perceive religion. If a suggestion was to be made then, the blasphemy laws should be so revised that they are accepted andappreciatedglobally.AsCharlesdeMontesquieuhasrightlysaid,―Inthestateofnature,allmen are born equal but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law‖xvi. Hence, the blasphemy laws should seek to provide equality to individuals before religions instead of becoming a means for causing hardship toindividuals.
REFERENCES:
i The Constitution of India
ii Thomas Aikenhead
iii Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)
iv Katie Hunt and Nasir Habib
v Raif Badwai Saudi Arabia
vi The state of Mysore v. Henry Rodrigues AND Anr.
vii Merrett, Christopher Edmond (1994). A Culture of Censorship: Secrecy and Intellectual Repression in South Africa.
viii Brett Humphreys: The Laws That Dared to Lay the Blame
ix Lahore‟s „blasphemy‟ teacher in hiding
x http://www.thehindu.com/news/national/two-girls-held-for-fb-post-over-thackeray-funeral/article4111814.ece
xihttp://deshgujarat.com/2014/09/27/internet-banned-in-vadodara-for-three-days/xii“Pakistani Woman arrested for declaring herself a Prophet”
xiiiRashid Rehman case
xiv Hinnells, John R. (1996).Zoroastrians in Britain: the Ratanbai Katrak lectures, University of oxford 1985.
xv Asia Bibi‟s case
xvi Montesquieu, The Spirit of Laws, Bk. VI, Ch.
Comments are closed.