[Vol 3/Issue 1/ April 2017]
BBA LLB (H)
Amity Law School, Noida
Email id: firstname.lastname@example.org
ISLAM, ONE of the greatest of world religions through the 1500 years of existence, has been by far the most misunderstood and misrepresented.The issue of the ‘triple divorce’ is regarded as highly sensitive among the Muslims, not only in India but elsewhere. The Holy Quran is very cautious in matters of divorce.The practice of triple talaq has been in existence in the Muslim community since centuries. Muslim men divorce their wives in one sitting with or without the presence of the wife. This form of talaq is not approved by Quran and many eminent Islamic scholars have rejected triple talaq. The court has taken into notice of this practice and observed that this form of talaq is unilateral and discriminatory. The courts have held this form of talaq as invalid and laid down proper procedure of talaq by interpreting the verses of Quran. Triple talaq is violative of the provisions of Constitution pertaining to fundamental rights. This article explains the different theories of divorce prevailing in the contemporary Muslim world .The article critically appraises the ‘innovative triple divorce’ by examining whether it is sanctioned by the Holy Quran or not. Next portion of the paper suggests for the Uniform Civil Code to be implemented for curbing the atrocities which was being faced by a particular section of the society.
Unequivocally declaring divorce to be Abghad-ul-mubahat (worst of all permitted things, the prophet warned his people in these words to keep away from it :
“Enter into marriage and do not dissolve it. God curses those who change their life partners for the sake of pleasure. “
Muslim Law infact stands for what is now known as the breakdown theory of divorce. The Quran did not specify any matrimonial offences; and the prophet laid down no bars to matrimonial relief. The modern breakdown theory of divorce does not want the court to go into the causes of the breakdown of marriage ; the law-giver of Islam did not want the matter to be taken to the court at all unless it became wholly unavoidable.Very unfortunately Muslim men in India are blissfully unaware of the true islamic law in divorce and believe talaq-ul-bidat to be the only islamic way of divorcing their wives. This is indeed a devastating state of affairs playing havoc with muslim women.
“TALAQ” UNDER MUSLIM LAW
Originally ‘Talaq’ means rejection or repudiation and under Muslim law it means a release from the marriage tie, eventually or immediately. A Talaq may be effected by the husband in any of the four methods that are talaq-ul-sunnat, talaq-ul-biddat, Ilaand Zihar. In the case of Moonshee Buzloor Rahim vs Laleefutoon nisa, the court held that under Muslim Law talaq is merely an arbitrary act of a muslim husband who may repudiate his wife at his own pleasure with or without cause.
Talaq in Islam can be divided into three types –Talaq-e-Ahsan: The husband gives talaq to wife (in a single sentence) in state of purity (tuhr) and waits for period of iddat. This type of talaq is revocable during the period of iddat. After iddat, it becomes irrevocable. However, it is revoked if the couple cohabits within 90 days ;Talaq-e-Hassan: There must be 3 successive pronouncements of talaq, BUT three pronouncements are to be made in 3 successive tuhrs (in case of menstruating women) OR consecutive intervals of 30 days (in case of non-menstruating women). It can be revoked anytime before the third pronouncement.If the third talaq is pronounced , divorce becomes irrevocable.
Talaq-e-biddat:It means instantaneous divorce or triple talaq.This type of talaq is not purely Islamic. It was innovated later (during the Umayyads) to suit patriarchy. Here 3 pronouncements can be made during a single tuhr. (Instant Talaq), i.e. by saying “I divorce thee” thrice at the same instant.The practice goes back to the 8th century and is sought to be given recognition by the Hanafis, one of the four Sunni schools. Even Hanafis call it “Sinful form of divorce but good In Law”. 
‘Triple Talaq’ is the term used to signify the methodology of divorce in Islam. Usually the term is used to signify that after saying divorce three times, the couple cannot be together.
In Sharia law, there are broadly two kinds of talaq :
- Talaq al ahsan, which is done by saying a single word ‘talaq’ 3 times, with an interval of one month every time. The talaq becomes complete when the third time the word ‘talaq’ is used.
- Triple talaq, or talaq ul biddat, which is done by saying ‘talaq’ 3 times one after another, with no interval of time. So this results in immediate divorce. As a matter of fact, this is the most widely practised method.
This Talaq is also known as Talaq-ul-Bain. The most distinctive feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.
TRIPLE TALAQ- VIOLATIVE OF OUR FUNDAMENTAL RIGHT OR NOT?
Justice Nariman said “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbitrators from their families, which is essential to save the marital life cannot ever take place…It is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained in article 14 of the constitution and therefore must be struck down as being void to the extent it recognizes and enforces Triple Talaq.”
TRIPLE TALAQ BANNED: MUSLIM WOMEN REJOICE THE HISTORIC JUDGMENT
The Supreme Court on 22nd August, 2017 created another benchmark by striking down the long practiced Islamic practice of Triple Talaq, terming it to be unconstitutional and violative of the fundamental rights of women. The verdict was given by a majority of 3:2.
A unique combination of 5 Supreme court judges belonging to different faiths presided ovr the constitutional validity of instant triple talaq. Three of the judges Joseph, Nariman and Lalit, said “What is sinful under religion cannot be valid under law”. “triple talaq may be a permissible practice but it is retrograde and unworthy.” “since triple talaq is instant it is irrevocable and the marital tie gets broken, it violates the right to equality,” the judges observed.
By declaring triple talaq as unconstitutional, the Supreme Court overturned an 85-year-old judicial decision that had upheld the validity of the controversial practice permitting a muslim man to instantaneously divorce his wife.In 1932, triple talaq had come up for scrutiny before the Privy Council, when a Muslim women Anisa Khatun narrated a tragic story. She was married to Ghiyas-ud-din on August,1905 and just a fortnight later, he uttered triple talaq. The Privy Council held triple talaq to be a legitimate method of divorce. The Supreme Court for the first time in 2002 in Shamim Ara vs UP case observed that triple talaq lacked legal sanctity.On Tuesday,the majority in the Five-judge Constitution bench said that the 1932 Privy Council verdict did not hold good after Shamin Ara judgement.
Triple Talaq is not a principle of Islam, but is rather a ruling of certain Muslim jurists, adopted in the later period of Islam.In Islam, divorce is considered as an undesirable practice. But in rare cases, a couple may feel their marriage is not working and in this situation, divorce is allowed.The abolition of Triple Talaq by the supreme court is a big victory. It has not only created a benchmark in the law fraternity but has also given new wings to Muslim women.
FROM SHAH TO SHAYARA: HAILED VICTORY OF INJUSTICE FROM 3 WORDS
The journey of “Muslim women’s rights” from Shah Bano to Shayara Bano is significant for the transition of congress from the Rajiv to Rahul era. Rahul Gandhi welcomed the Supreme Court’s quashing of ‘instant triple talaq’ and complimented the women who fought for justice.Around 3 decades back the Supreme Court had ordered maintenance to be paid to a Muslim woman who was a victim of triple talaq. The case famously came to be known as the Shah Bano case. The Parliament in 1986, indeed, did legislate on the matter of the Muslim Women’s Bill – but instead of supporting and validating the Supreme Court’s verdict the year before, Rajiv Gandhi used his monstrous majority in the Lok Sabha to overturn a perfectly fair and righteous judgement and declare it invalid.
Meanwhilein Shayara Bano, a young sociology graduate was married off to Rizwan, a property broker in Allahabad. She was forced to undergo several abortions because Rizwan wouldn’t get a vasectomy or tubectomy, because he believed they were “haram.” He refused to let her meet her sister. He denies beating her but soon enough he asked her father to come and take her home. The triple talaq arrived soon, in a letter.Shayara Bano went to the Supreme Court, along with four other women. They insist they aren’t challenging the Quran’s admissible right to divorce over 90 days, just this particularly heinous “talaq-e-biddat.”
From Shah Bano to Shayara Bano, its been a long journey for Indian Muslim women challenging governments to uphold their rights to life and liberty under the Constitution.
UNIFORMITY: NOW IS THE MOMENT
An ideal Uniform Civil Code is easier to discuss than to enact; there has never been a clear draft to such a code. It was first raised as a demand in the 1930’s by the all Indian women conference, seeking equal rights for women, irrespective of religion in marriage, inheritance, divorce, adoption and succession.India’s first Prime Minister JawaharLal Nehru professed his keen desire to have a uniform civil code (UCC), but though he succeded in codifying Hindu law, his government took no step towards reform of Muslim personal laws and sidestepped a question of a Uniform Civil CodeThe only thing which BR Ambedkar could get was article 44 In the directive principles that said “the state shall endeavour to secure for the citizens a uniform Civil Code”.
In 1986, the supreme court’s Shah Bano judgment for maintenance was amended by parliament, in a way that placated the Muslim clergy. Muslim personal law has not been codified by the Parliament. Judges have to rely on Islamic jurisprudence in a case-by-case manner.
With a Uniform Civil Code, polygamy and arbitrary divorce associated with Islam would go, as would the tax benefits of the Hindu Undivided Famiy. Many feel the state should push for uniform rights rather than a single code. They call for rooting out gender bias within existing personal laws, rather than flattening religious difference under a code. 
- REFERENCES Dr. Tahir Mahmood; introduction to muslim law; universal law publishing co. ; 2013 edition; page 158. ↑
- Dr. Tahir Mahmood; introduction to muslim law; universal law publishing co. ; 2013 edition; page 164. ↑
- Akil Ahmad;Mohammedan Law; Central Law Agency; Twenty Fifth edition; page 167. ↑
- How Muslims Divorce; The Times Of India; 23rd August,2017. ↑
- http://lawrato.com/indian-kanoon/muslim-law-law/talaq-ul-bidaat-or-triple-talaq-validity-in-india-654; Last visited on 26th August,2017. ↑
- Dhananjay Mahapatra and Amit Anand Choudhary;Instant Talaq:unlawful, unlawful, unlawful; The Times Of India; 23rd August,2017. ↑
- Times news network; Judges from 5 faiths, 1 crucial issue; The Times Of India; 23rd August, 2017. ↑
- Amit Anand Chaudhary; Overturned:verdict by SC’s Raj era avatar; The Times Of India; 23rd August, 2017. ↑
- http://indianexpress.com/article/opinion/triple-talaq-verdict-supreme-court-illegal-muslim-divorce-nikah-halala-from-shah-bano-to-shayara-bano-4808525/: last visited on 26th August, 2017. ↑
- Times news network; why India does not have a uniform code; The Times Of India; 23rd August, 2017.
RULE OF LAW
[Vol 3/Issue 1/ April 2017]
AakritiJalota ShivangiChawla B.Com. LL.B (H) B.Com. LL.B (H) 7th Semester 7th Semester Amity Law School, Noida Amity Law School, Noida Email Id: email@example.com Email Id: firstname.lastname@example.org
Plato wrote, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if the law is a master of the government and the government its slave, then the men enjoy all the blessings that the gods shower on the state.” Likewise, Aristotle wrote, “the law should govern and those in power should be servants of the laws.”
The basic concept of Rule of Law is that a country should not be governed by any one person, or a nominated representative elected of Rule of Law is an old and ancient ideal. Greek philosophers such as Plato and Aristotle discussed by the people, but by the supreme law of the land. The concept of Rule of Law was incorporated by A.V. Dicey and has been widely accepted by many countries today.
This short comment discusses the applicability of the doctrine of Rule of Law with special emphasis on India. It discusses the merits and exceptions of the said doctrine and mentions the latest developments and important cases related to Rule of Law in India.
One of the basic principles of the English Constitution isRule of Law. This doctrine is accepted in the US as well as in Indian Constitution. The entire basis of administrative law is the doctrine of Rule of Law.
The concept of Rule of Law is that no man is above the law and that every person, whatever be his rank or conditions, is subject to the jurisdiction of ordinary courts. A country that enshrines Rule of Law would be the one where the basic or core law from which all other laws derive its authority is the supreme authority of the state.
The origins of Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke and Rousseau through the Social Contract Theory. Indian philosophers such as Chanakya also adopted the Rule of Law theory in his own way by maintaining that the King should be governed by the word of law. The formal origin of the word is attributed to Sir Edward Coke, and is derived from the French phrase ‘La Principe de Legalite’ which literally translates to the ‘Principle of Legality.’However, the firm basis of the theory of Rule of Law was expounded by A.V. Dicey and his theory of the Rule of Law remains the most popular. Dicey developed this theory of Coke in his classic work The Law and the Constitution published in the year 1885.
According to Dicey, the Rule of Law is one of the fundamental principles of the English legal system. He attributed the following three meanings to the said doctrine:
- Absence of arbitrary power of Supremacy of law: It means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary or wide discretionary power. It excludes the existence of arbitrariness on the part of the government. In other words, “a man may be punished for breach of law, but can be punished for nothing else.”
- Equality before law: It means that there must be equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary courts. This principle of law seeks to ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but the law must be applied in a just manner as well. The law must not discriminate on the grounds of race, religion, caste, sex, etc.
- Predominance of legal spirit: It means that the source of the rights (rights such as the right to personal liberty, freedom from arrest, freedom to hold public meetings, etc.) of individuals is not the written Constitution but the rules as defined and enforced by the courts. Such rules are the result of judicial decisions in concrete cases which have actually arisen between the parties.
MERITS OF DOCTRINE OF RULE OF LAW
Dicey’s Rule of Law has its own advantages and disadvantages. It proved to be an effective and powerful weapon in keeping administrative authorities within their limits. This doctrine of Rule of Law acts as a constitutional safeguard where the first principle of absence of arbitrary power opposes arbitrary and wide discretion of governmental authorities which have the tendency to interfere with the rights and duties of private individuals, while the second principle promotes equality before law and equal subjection of all classes to the law.
EXCEPTIONS TO RULE OF LAW
Rule of Law means that no person is above the law of the land no matter what position he holds in the society; that is, whether a middle class man murders someone or a politician murders someone; they would both be subject to the same set of laws irrespective of which strata of society they belong to or how influential or moneyed they are. However, this is not an absolute rule and there are certain exceptions to it:
Firstly, equality before law does not mean that the powers of a private citizen are the same as the powers conferred on a public official. For example, a police officer has the power to arrest while no private person has this power. Having said that, this does not mean these powers can be abused. They have to be clearly defined by law or they would violate the principle of Rule of Law. Any abuse of authority by public officials has to be punished just like any other illegal activity, to reinstate the concept of supremacy of the law of the land.
Secondly, certain classes of people are governed by certain special laws, like military personnel are controlled by military laws. This is not a violation of Rule of Law. Another example is Article 361 of the Indian Constitution which provides for immunity to the President of India and the State Governors for any act done by them in the exercise and performance of the powers and duties conferred on them. Also, the President of India and the State Governors cannot be arrested, imprisoned or instated for any criminal proceedings during the term of their office.
Thirdly, ministers, bureaucrats and other administrative and executive bodies are given a very wide ambit of discretionary powers because most of the legislation which takes place in today’s time is delegated legislation. When Dicey had given the concept of Rule of Law, delegated legislation did not exist. Thus, with the rise in delegated legislation, this exception also came into being.
Fourthly, certain members of the society like lawyers, doctors, chartered accountants, etc. are governed by certain special laws that do not apply to ordinary citizens, like chartered accountants are governed by the rules of The Institute of Chartered Accountants of India (ICAI) and lawyers are governed by the rules set by the Bar Council of India. However, this does not mean that other general laws would not apply to them at all. For example, a lawyer would still be punished for murder, just like any other ordinary citizen of the country.
RULE OF LAW IN INDIA
A.V. Dicey’s three meanings of Rule of Law are: Absence of Arbitrary Power or Supremacy of Law, Equality before Law and Predominance of Legal Spirit. The first and second aspects apply to the Indian legal system but the third aspect does not; as the Constitution of India is the source of all rights and duties conferred on private individuals; the Constitution is the supreme law of the land and all laws made have to be in accordance with it.
Article 14 of the Indian Constitution talks about ‘equality before law’, ‘equal protection of law’ and ‘predominance of law’. The Rule of Law embodied in Article 14 is the “basic feature” of the Constitution of India and thus, it cannot be destroyed or amended even by Article 368 of the Constitution of India.
The phrase ‘equality before law’ is of English origin and aims at establishing ‘equality of status’ in the eyes of law. Equality before law seems to be a negative concept as it implies the absence of any special privilege by reason of birth, creed or the like in favour of any individual and the equal subjection of all classes of people of the ordinary law.
According to Article 14, the guarantee of equal protection of law has been interpreted to mean subjection of all persons in similar circumstances to the same law both in privilege and liabilities; this has been iterated in the case of Lindsley v Natural Carbonic Gas Company.
Thus, the rule is that the like should be treated alike and not that unlike should be treated alike
The expressions ‘equality before law’ and ‘equal protection of law’ seem to be identical but they do not convey the same meaning. Equality before law is a negative concept while equal protection of law is a positive concept. However, the dominant idea collective to both of them is of equal justice as was observed in the case of Sheoshankar v State of MP.
Chief Justice Patanjali Sastri observed that the second expression is a corollary of the first and it is arduous to think of a situation where violation of equal protection of laws is not a violation of equality before law, this was observed in the case of State of West Bengal v Anwar Ali Sarkar
Article 14 permits classification but prohibits class legislation. Class legislation means making improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of people, all of whom stand in the same relation to the privilege granted and no justification can be given for the inclusion of one and the exclusion of the other. The classification must not be ‘arbitrary, artificial or evasive’ but must be based on real and substantial distinction, wherein, a just and reasonable relation to the object sought to be achieved by the legislation.
This Article is an anti-thesis to arbitrariness, that is, the law should promote equality.
As mentioned above, classification is validly permitted and for the classification to be reasonable, the following conditions have to be fulfilled:
- The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group.
- There should be intelligible differentia based on reasonable nexus with the object being served to make discriminatory law.
The fundamentals of natural justice are also embodied in Dicey’s Rule of Law. They are:
- Nemo Judex In Causa Sua – No individual can judge his own case.
- Audi Altarem Partem – Every party has the right to be heard.
- Wednesbury Principle – This principle says that the Doctrine of Proportionality has to be secured, that is, the discretionary powers given to authorities should only be used in proportion, an administrative authority can only be used to the given extent. Any penalty disproportionate to the gravity of the misconduct is violative of Article 14.
Article 14 seeks to secure the fundamentals of natural justice as it embodies Rule of Law.
LEADING CASE LAWS ON THE CONCEPT OF RULE OF LAW IN INDIA
There are mainly three leading case laws on the concept of Rule of Law in India; a study of Kesavananda Bharti v State of Kerala, Indira Gandhi v Raj Narain and the Habeas Corpus Case which provides for the Indian judicial thought on the concept of Rule of Law which has evolved well over 25 years in India.
In the Habeas Corpus Case, it was recognised that the concept of Rule of Law can be used as a legal concept in India. In this case, an attempt was made to challenge the retention orders during emergency on the ground that such an order was violative of the principle of Rule of Law.
In Kesavananda Bharti’s case, Rule of Law was considered as an ‘aspect of the doctrine of basic structure of Constitution, which even the plenary power of the Parliament cannot reach to amend.’
In Indira Gandhi v Raj Narain, Clause 4 of Article 329A was inserted in the Constitution by the 39th Amendment Act, 1975 to provide immunity to the office of the Prime Minister from any kind of judicial review for the election dispute. This was invalidated by the Supreme Court. It was held that since the validation of the Prime Minister’s election was not applicable by any law, therefore, it offends the Rule of Law. It was observed that the jurisdiction of Supreme Court to try a case on merit cannot be taken away without injury to the basic postulate of the Rule of Law and of justice in a democratic and constitutional political structure, that is, judicial review was also being suppressed.
The concept of Rule of Law has developed many facets over the years, some negative and some positive. Some of the recent decisions of the Supreme Court has laid emphasis on the positive aspect.
In Sheela Barse v State of Maharashtra, the Court insisted on ‘fairness’ for women in police lockup and drafted guidelines for the protection of female prisoners.
In Veena Seth v State of Bihar, the reach of Rule of Law was extended to the poor and down-trodden. It was held that Rule of Law does not merely exist for those who have the means to fight for their right and those who seek to perpetuate a status quo in the society which allows them to exploit a large section of the community but also for those who cannot afford to fight for their rights that are nonetheless entitled to them.
Thus, the concept of Rule of Law promotes ‘equality among equals and inequality among unequals’. This forms the basis of all modern laws, without which our society cannot function.
REFERENCEShttp://www.nber.org/papers/w10750 (last visited on July 10, 2017) A.V. Dicey, The Law and the Constitution (page 202-3, 10th edition) Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2299 (1910) 220 US 61 Dr V.N. Shukla, Constitution of India (page 27, 5th Edition) AIR 1951 Nagpur 53 AIR 1952 SC 75 Bhagatram v State of Himachal Pradesh AIR 1983 SC 454 AIR 1973 SC 1461 AIR 1975 SC 2299 AIR 1976 SC 1207 AIR 1983 SC 378
AIR 1983 SC 339
Social justice and the Indian Democracy: Vision of Dr. B.R. Ambedkar
[Vol 3/Issue 1/ April 2017]
KALINDI SAHA Academic Coordinator Amity Law School, Noida Email id: email@example.com
Dr. BabasahebAmbedkar is recognized as staunch protagonist of Democracy. The term democracy is derived from the Greek words ‘demos’ and ‘Kartos’, the former meaning the people and the later power. He defines democracy as “a form and a method of Government whereby revolutionary changes in the economic and social life of the people are brought about without bloodshed”. He further defined Democracy as, “democracy is a mode of associated living. The roots of Democracy are to be searched in social relationship, in terms of associated life between the people who form the society.
Dr. Ambedkar stated that caste was the origin of undemocratic structure and it was obstacle in accomplishment of Democracy. His thought of democracy was certainly on theory of equality. According to him, “where equality is denied everything else may be taken to be denied”. Political affairs are the key of all emancipation. Therefore he suggested unprivileged classes to capture political power for recognition of Social democracy in factual character. He sought Social democracy to relish in India. He stated in particularly Political Democracy cannot succeed unless until it’s based on Social democracy. He was of view that political Democracy must revolutionize its form to social Democracy in organized to enhance state socialism.
The concept of social justice, like law, revolutionizes and develops itself into gradually new patterns and enlarges its frontiers and presumes new proportions. Social justice has implication in the framework of Indian society which is estranged into Castes and Communities and they create blockade of exclusiveness on the basis of superiority and inferiority such inequality pose grave menace to Indian democracy. The concept of social justice takes within purpose of removing inequalities and affording equal opportunities to all citizens in social, economic and political affairs. Recent trends in Globalization, Urbanization, Mobilization of the poor in search of better life conditions and social justice movements compel us to think afresh.
Social justice is of the concept of distributive justice to the wealth, assets, privileges and advantages that accumulate within a society or state because the essence of justice is the attainment of the common goods as distinguished from the goods of individuals even of the majority. Social justice engrosses the conception of just and fair social order just and fair to one and all. In this sense, Social justice is a revolutionary ideal. It includes both the economic justice and social justice.
“Democracy is not merely a form of Government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards our fellow men.”
“In short justice is another name of liberty, equality and fraternity.”
― Dr. B.R. Ambedkar
Brief Life Sketch about Dr B R Ambedkar
Dr B R Ambedkar, popularly known as BabasahebAmbedkar, was well known as one of the architects of the Indian Constitution. He was a well-known politician and an. His efforts to eradicate the social evils like untouchablity and caste restrictions were remarkable. The leader, throughout his life, fought for the rights of the dalits and other socially backward classes. Ambedkar was appointed as the nation’s first Law Minister in the Cabinet of Jawaharlal Nehru. He was posthumously awarded the Bharat Ratna, India’s highest civilian honor in 1990.
His Life:Dr. Ambedkar was born to BhimabaiSakpal and Ramji on 14 April 1891 in Madhya Pradesh. He was the 14th child of his parents. He was a victim of caste discrimination. Fearing social outcry, the teachers would segregate the students of lower class from that of Brahmins and other upper classes. The untouchable students were often asked by the teacher to sit outside the class. After coming back from the US, he was appointed as the Defence secretary to the King of Baroda. Even, there also he had to face the humiliation for being an ‘Untouchable’.
After returning to India, he decided to fight against the caste discrimination that almost fragmented the nation. He opined that there should be separate electoral system for the Untouchables and lower caste people. He also favored the concept of providing reservations for Dalits and other religious communities.
Framer of Constitution
Dr. Ambedkar was appointed as the chairman of the constitution drafting committee. He was also a noted scholar and eminent jurist. He emphasized on the construction of a virtual bridge between the classes of the society. According to him, it would be difficult to maintain the unity of the country if the difference among the classes were not met.
Conversion to Buddhism
In 1950, Dr. Ambedkar traveled to Sri Lanka to attend a convention of Buddhist scholars and monks. In 1955 his book “The Buddha and His Dhamma” was published posthumously.He completed his final manuscript, “The Buddha or Karl Marx” on December 2, 1956. Since 1954-55 he was suffering from serious health problems including diabetes and weak eyesight. On 6 December, 1956 he died at his home in Delhi.
OBJECTIVES OF THE STUDY:
- To trace the impact & significance of Dr. B R Ambedkar’s philosophy so as to social justice in Indian Society.
- To trace the reasons and effects of recent trends in societal organization.
- To suggest potential suggestions and recommendation for social democracy in India.
This study basically follows doctrinal research method in the compilation, organization, interpretation and systematization of the primaryand secondary source material. The approach of the study is descriptive and analytical. The data collected, organized and systematized from the secondary data resources. We have collected the data from different websites and also websites of Indian government.
PURPOSE AND LIMITATIONS OF THE STUDY
This topic being so extensive relating to almost every strata of the humankind and every societal aspect, it would be too unmanageable to study each and every factor related to it. However every study has its limitations. Similarly, all the very basic concepts and reasons are not described and discussed in detail. For this purpose only prominent reasons of study have been analyzed to sort out the areas in which potential suggestions and reforms for social democracy in India.
Brief History: Social Structure
In order to explore the existence of Dalits in Indian history and philosophy, one needs to understand the circumstances that lead to the genesis of the concept of slavery. The condition of depressed class since ancient times was worst than animals in India as they were completely deprived of the basic rights and facilities in the social system.
“Varna”, is the term for the four broad castes into which traditional Hindu society is divided: the Brahmins who were priests, teachers, preachers; the Kshatriyas who were kings, governors, warriors, soldiers; the “Vaishyas who were cattle herders, agriculturists, artisans, businessmen, merchants; the Shudras who were labourers and service providers and performed functions of serving the other three varna. This quadruple division is the ancient division of society into principal castes. The much finer caste system in India based on occupation emerged in the medieval period. However the fundamental concept of discrimination remained the same. Dalits were exploited and convinced that in the eyes of God, they were born as Dalits due to their bad karma. Dalit status was associated with occupations regarded as ritually impure, such as, leatherwork, butchering or removal of rubbish, animal carcasses and human waste. Dalits worked as manual labourers cleaning streets, latrines and sewers. These activities were considered to be polluting to the individuals and this pollution was considered contagious. Hence, Dalits were physically segregated from the society and were required to stay outside villages. They could not enter a temple or a school, they were not allowed to draw water out of the community well, they could not come in the way of upper caste people and other castes took elaborate precautions to prevent incidental contact with Dalits as it was believed that merely touching them would lead to loss of sanctity; hence known as untouchables. Unlike the other three upper castes, Shudras were completely deprived of their fundamental rights. India was ruled by numerous rulers but no regime could wipe out this social evil. Many social reformers emerged from time to time and influenced the society with their preaching’s and efforts in the direction of overall social upliftment.
Since the ancient times, Dalits were deprived of all kinds of social, religious and political rights. They were kept as slaves of the upper classes. But after centuries, now, social, religious and political awareness and awakening has taken place and the credit goes to Dr. BhimRaoAmbedkar. The modern age education has brought revolutionary changes.
Dr. Ambedkar argued that the Brahmins were dominated Hindu society who was said that the fundamental principles of Brahminism are
- Graded inequality between the different classes.
- Complete disarmament the Shudras and the untouchables.
- Complete prohibitions of education of the Shudras and the untouchables.
- Ban on the Shudras and the untouchables occupying places of power and authority.
- Complete subjugation and suppression of women.
After India attained independence, Dalits also got the constitutional rights to live. Hence they want to use their constitutional rights for the progress and upliftment of Dalit community.
To liberate Dalits from traditional slavery was the prime objective of Dr. Ambedkar’s life, philosophy, and work, something he would never hide. Hence Dr. Ambedkar considered the liberation of Dalits more important than the struggle for independence. He said that if ever his interests clashed with the interests of Dalits, he would give priority to the interests of Dalits.
Social rights can only be promoted if dignity of all the human beings is accepted in social life. Nobody should be considered superior or inferior based on gender, colour, caste, religion, region etc. Everyone should receive equal opportunities for education and progress and all human beings together should be able to avail the means and resources related to literature, art, culture, technology etc.
Dr. Ambedkar emphasized on creating social, economical and political awareness amongst the depressed class as they will not be able to defend their rights due to lack of awareness.
Dr. Ambedkar came from a humble background and had to struggle for his livelihood. Despite the struggle, he gave more importance to his goal of eradicating the adversities and injustice that prevailed in the society. As Dalits were the most distressed; to liberate them from their sufferings became his prime objective.
The concept of basic human needs involves drawing a list of foundational needs of both, physiological and social. It arrives at a list of the minimum social needs- right to food, housing, health, education and livelihood provide foundation upon which human development can occur and human freedom can flourish. These basic social rights should be conceptualized in terms of an entitlement both to be equal as humans and to be equal as members of the society. Naom
Chomsky once said,” In this terminal phase of human existence, democracy and equality are more than just ideals to be valued, they may be essential to survive.”
Ambedkar’s exhumation of ‘Society’ in India:
Dr. Ambedkar held that there were two qualitatively different groups which had not only been historically central, but continued to be central, to social organization and social dynamics. These were caste and class. Historically, the Vedic Varna system, which was a class order, had been transformed into a caste order subsequently, and in modern India the nascent class order was continually and complexly distorted and defeated by caste order. This is the point of his challenge to Marxists when he asked them whether the Indian proletariat, caste-fragmented, can ever become a class in itself, let alone a class for itself. He explained with diligence that the formation of caste society, coupled with gender inequity is to safeguard the interests of the Brahminical groups in relation to other groups, maintain their moral and mental control over them, and preserve their position of power, prestige and privilege
Dr. Ambedkar said that the major discriminatory of features of casteism are;
- Lack of social efficiency
- Social immobility
- Responsible for disruptive tendencies
- Endogamy and
- Anti social sprit.
Denial of Existential Dignity
Ambedkar explained that the Brahaminical system denies the right to existential dignity to the Bahujans and relegates them a subhuman existence. As a consequence, they are denied three essential rights, viz., theirright to Identity. All the identities that are attached to the Bahujans are not given by themselves, but are called by others. The identities like Anarya, Pisacha, Sudra, Atisudra, names of individual castes and even the surnames-all are insulting, demeaning identities and are the identities of suppression. The Bahujans are denied the right to Choice ofOccupation and are forced to take up polluting occupations as hereditary occupations. “There are many occupations in India which on account of the fact that they are regarded as degraded by the Hindus provoke those who are engaged in it to aversion… all are slaves of the caste system. But all slaves are not equal in status”. They are forbidden to exercise any right to Access or Claim over Resources of the society in which they live. On the whole, the caste system clamps social oppression, economic exploitation and political suppression which are worse than slavery.
The Necessity of Social Transformation:
In India, he analyses that there is no society at all. We have multitudes of societies based on caste. People are not born as humans. They are born into castes and imbibe such notions of mind which do not allow humane interaction among them. “The first and foremost thing that must be recognized is that Hindu Society is a myth… In every Hindu the consciousness that exists is the consciousness of caste. That is the reason why the Hindus cannot be said to form a society or a nation”. He explains the ethnocentric belief that the Hindu Social System has been perfected for all times has prevented the reconstruction of the Hindu Society and stood in the way of a revision of vested rights for the common good. He squarely blames “Brahmanism in instituting caste system has put the greatest impediment against the growth of nationalism”.
“Unless the social order is changed, no progress could be achieved. The community cannot be mobilized either for defense or for offence. Nothing can be built on the foundations of caste. No nation, no morality”.
Dr. Ambedkar’s philosophy of social and economic justice:
Dr. Ambedkar’s philosophy of social and economic justice is based on the principles of social democracy and state socialism which were meant to remove social and economic inequality in India respectively.
Dr. Ambedkar’s principle of social democracy consist three concepts of justice namely equality, liberty and fraternity. These principles of equality, liberty and fraternity should not be treated as separated items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. He said that political democracy cannot last unless there lies at the base of it social democracy.
Dr. Ambedkar advocated the concept of state socialism in states and minorities. His concept of state socialism is different from the concept of Marxist socialism. Marx says that all working class unite against capitalist and wage war against capitalist. As in one side capitalists are few in number and on the other side there is large army of working class, at the end capitalist will be eliminated in bloody revolution and new social order- socialism will be established under the leadership of working class, in which there will be no exploitation of working class.
Dr. Ambedkar’s state socialism is not based on bloody revolution. He believed that bringing socialism is the duty and responsibility of state. State shall provide protection against economic exploitation and shall work towards making egalitarian society. He sees an extremely important role for the state in transformation of agriculture and advocates the nationalization of land and the leasing out of land to groups of cultivators, who are to be encouraged to form cooperatives in order to promote agriculture.
New economic reforms and dilution of the role of state:
Dr. Ambedkar had given whole responsibility to state to do social justice with oppressed communities. But our experiences shows that state was failed to fulfill its responsibility. Consequently, India is facing many internal problems such as growing caste tensions, clashes and Naxalism in all the states. One reason of failure of government to perform its constitutional duty to provide social justice to oppressed communities may be the monopoly of upper castes in politics.
Failure of state and options to provide social justice to oppressed communities: In India there is struggle between Upper and lower castes and this struggle have a long history. Whatever Dr. Ambedkar did for oppressed communities, for that he faced stiff opposition from caste Hindus in the parliament and outside the parliament too. When he shouldered whole responsibility of social justice on state he has no option left with him, as he was single well educated person in his community. At present because of Ambedkar’s struggle SC/ST/OBC/Minorities who are most oppressed and exploited communities in India have more than 50 lakh students and about lakh of teachers in higher education across the country. Moreover they have constitutional rules in their favour against any type of injustice done against them. If teachers and students work towards educating the common masses of the country belonging to oppressed communities about their rights and constitutional rules then favourable environment can be created for the enforcement of constitutional rules including fundamental rights.
Dr. Ambedkar has rightly said that rights cannot be protected by law but the social and moral conscience of society. If the fundamental rights are opposed by the community, no law, no parliament, no judiciary can guarantee them in the real sense of the word.
Teaching community especially from oppressed and backward communities must fulfill their social responsibility of awakening the oppressed communities about their history of struggle and their history of backwardness in this country. If teaching community will not fulfill their responsibility given the condition that there is no hope from the government in present era of globalization then it will result in intense social/caste tensions and clashes as Dr. Ambedkar had warned.
Idea of Social Justice
Dr. Ambedkar’s notion of social justice is based on equal rights and human dignity through legal framework. As the result of his thought, Indian constitution grantees equal right to all. The term social justice implies a political and cultural balance of the diverse interests in society. Pluralism or democracy is the only means by which is indeed a dynamic process because human societies have higher goals to attain. Social justice is an integral part of the society. Social injustice cannot be tolerated for a long period and can damage society through revolts. Therefore the deprived class should be made capable live with dignity. Social justice is a principle that lays down the foundation of a society based on equality, liberty and fraternity.
The basic aim and objective of society is the growth of individual and development of his personality. The concept of social justice is a revolutionary concept which provides meaning and significance to life and makes the rule of law dynamic. When Indian society seeks to meet the challenge of socio-economic inequality by its legislation and with the assistance of the rule of law, it seeks to achieve economic justice without any violent conflict.
The ideal of a welfare state postulates unceasing pursuit of the doctrine of social justice. That is the significance and importance of the concept of social justice in the Indian context of today. Social justice is not a blind concept. It seeks to do justice to all the citizen of the state.
Dr. BabasahebAmbedkar had very explicitly stated the conditions which are very much necessary for the successful working of democracy.
For the success of democracy the first and foremost necessary element is equality. He stated that there must be no glaring inequalities in the society. There should not be an “Oppressed Class” and there should not be a “Suppressed Class”.
The entire Indian society was divided in caste system which was based on negation of human value’s and glared inequalities in society.
Dr. Ambedkar explained the evil effects of caste system as follows.
“Caste has killed public spirit. Caste has destroyed the sense of public charity. Caste has made public opinion impossible. A Hindu’s public in his caste. His responsibility is only t o his caste. His loyalty is restricted only to his caste. Virtue has become caste-ridden and morality has become caste bound. There is no sympathy to the deserving. There is no charity to the needy.
Thus Dr. Ambedkar said that caste was the root of undemocratic system and it was hurdle in success of Democracy. His idea of Democracy was based on principle of equality. According to him, “where equality is denied everything else may be taken to be denied”.
- Two party system
The second important condition for the successful working of democracy is the existence of strong opposition to the ruling majority. In Kingship there was no Veto Power in hands of people but in Democracy there is Veto power in hands of people. To avoid dictatorship and fascist tendency it is necessary in democracy to have two political party system, one for ruling and other for opposition, to have counter check on ruling party.
- Equality in Law and Administration
There must be not only equality before Law, but there must be equality of treatment in administration. Discrimination in administration cause atrocity on Untouchables and depressed classes in India. Therefore Dr. Ambedkar wanted equality in Law and Administration as one of the condition for success of Democracy.
- Constitutional Morality
Dr. BabasahebAmbedkar said that, “A Constitution which contains legal provisions, is only skeleton. The flesh of the skeleton is to be found in what we call constitutional morality.” According to Dr. Ambedkar Constitution is important for success of democracy but more important was constitutional morality in polity and society.
- No Tyranny of Majority
Dr. Ambedkar said, “The minority must always feel safe that although the majority is carrying on the Government, the minority is not being hurt.” The reason behind Dr. Ambedkar’s this thought is that there is always clash between majority and minority for superiority. Which leads to undemocratic situation in society.
- Moral order
Dr. Ambedkar said, “A politician dose not merely trade in politics, but he also represents a particular faith covering both the method as well as the metaphysics of politics.” He further said that, “Politics has become a kind of sewage system intolerably, unsavory and insanitary. To become a politician is like going to work in drain. According to Dr. Ambedkar Politics is the key of all emancipation. Therefore he asked depressed classes to capture political power. For realization of Social democracy in true spirit.His emphasis for moral order in Politics just because he wanted Democracy to be implemented in true sense.
- Public Conscience
According to Dr. Ambedkar Public Conscience means, “Conscience which becomes agitated at every wrong, no matter who is the sufferer; and it means that everybody whether he suffers that particular wrong or not is prepared to join him in order to get him relieved.”
Dr. Ambedkar considered the condition but public conscience as essential condition for successful working of democracy because without public conscience democracy cannot be successful. It is the will of the people that makes healthy democratic atmosphere.
Dr. Ambedkar took decision for conservation to Buddha because of given factors are:
- The rational consciousness of assessing things for a better life of human beings
- The freedom of choice in which man realize his individual dignity
- The realization of the higher life by transcending the lower plane of human existence
- The revolt against suppression and enslavement of humanity
- The entire change of traditional pattern of society for providing physical facilities for all
- The emancipation of ignored humanity and the revitalization of overlooked reality.
GLOBALIZATION AND THETYRANNY OF TWIN ENEMIES
The social inclusion policy in India has been the outcome of several sociopolitical movements culminating in the Constitution, in which democratic foundations have been envisaged for establishing an integrative society with one man- one value. The policies centered on providing the right to equality and equity to all citizens through redistribution. Responsibility to realize this social policy rested with the State and the State remained the only institution with the capacity to side- step disempowering market and customary social relations. Several studies indicate the fact that in practice, the state to a large extent, not only failed to address the problems of poverty, exclusion and social injustice, but also actively served to reinforce them.
After opening up of public superintendence over the national resources in the name of Liberalization, Privitization and Globalization, conditions turned too favourable for the entrenched castes to transform Cultural Capital into financial capital(Brahmin control over economy). Vast tracts of land are being handed over to private individuals (SEZ), unbridled opportunities to establish profit-oriented enterprises, licensing educational mafia(The Right to Education Act legitimizes all schools, public and private,and by law legalizes inequal education) aided by the misinterpretations of the Statues; unchecked religious fundamentalism-all together resulted in the strengthening of Brahamnism and Capitalism which were declared by Ambedkar as the twin enemies to the society as a whole.
In the pretext of development, the reins of economy are given to the individuals who have been already in possession of all kinds of capital, including Cultural Capital. But Ambedkar warned “It is not enough to keep development as the goal for India…it (development) should be at the socially desirable level”. Globalization, based on the philosophy of libertarianism has produced inequalities not only in income and wealth but also inequalities in education and knowledge, leading to inequalities in human capital and technologies.
Since 1991, the ‘Growth with a human face’ facilitated-Growth without Development, Jobless growth, India’s 75.6% daily income is less than 2$ and 41.6% $1.25 a day, much below compared to the Rs.60/- per day in NREGS, Hunger Deaths and Suicides, 57% of males and 62% females in Rural areas are “self – employed” – a strange term; Cut down subsides on Food (0.99% of GDP in 2002-03 to 0.66% of GDP in 2005-06) but bring up food security Bill!!!
One finds state disowning its responsibilities but talk about Corporate Social Responsibility. It is important to note that whatever the claims made for its efficiency and effectiveness, the so called private sector in India, which is in the hands of a few privileged castes, has never been renowned for its adherence to such collective goals as equity, social justice or social inclusion. If this situation is not corrected henceforth, as Dr. Ambedkar warned, will lead to the economic pauperization of the majority. In the light of Ambedkar’s economic analyses, Globalization is only a process but the crucial problem is that a Conscious and determined minority creatingconditions in their favour, over an amorphous and ignorant majority. This continues unabated even in the Post Globalization period also unless one heeds to the warnings of Babasahab.
India today is in a situation which the Political Scientists refer to as ‘Democratic Deficit’ wherein “the failure of an elected government to fulfill the promises to the electorate”. This type of democracy can also be understood as a compromise betweenthe ‘power of the vote’ and the ‘power of business’, with the governments negotiating the interface between the two. It is too well known that the ‘corporate welfare’ always wins out over ‘social welfare’ when economy gets tight.
Today Democratic Revolution is a label much used by many and particularly Marxists of all shades! The Communist Party India (M) declares its goal is to run People’s Democratic Revolution while for CPI, it is National Democratic Revolution where as the Maoists aim to engage in New Democratic Revolution. On the other hand it is a Humanitarian Revolution that Dr. Ambedkar envisaged. “All the same we must not forget the vast difference that separates a revolution from real social change”. A revolution transfer political power from one party to another but what we require is a real social change in the relative strength of the forces operating in society.’
AMBEDKARISM AS A WAY TO THE WORLD
Hence, it is the responsibility of the civil society especially the educated sections to create social and moral consciousness and build a humane society. In an important way, Dr.Ambedkar thus gave expression to an inner need in India for a just social condition; on such basis alone can National well-being be secured. Though mindful of the great obstacles to the establishment of democratic arrangement in Indian society,
Discrimination is a culprit of the spirit of socialism. His main aim was to destroy all kinds of social discriminations. As a socialist, he advocated abolition of all kinds of social discriminations. According to Dr. Ambedkar, the present social system, economic system, political structures and moral conditions are not suitable to establish a socialist society. It is essential to radical changes in all spheres of society. The caste system of society is harmful for socialism. The caste system divides the society into four classes which is based on injustice. Therefore, various castes and sub-castes should be abolished. Immorality and inequality are harmful to establishing a socialist state. To establish a state control society based on morality, justice, peace, liberty, equality and fraternity, it is needed to apply all kinds of principles of equality in all fields i.e. economic, social, political and religious.
- Ambedkar B.R., State and Minorities, Dr. BabasahebAmbedkar Writings and Speeches, Education Department, Government of Maharashtra, compiled Vasant Moon, 1, 392-393 (1979)
- NarakeHari., M.L. Kasare, N.G. Kamble, AshokeGodghate (ed), Dr. B.R. Ambedkar and His Egalitarian Revolution, Dr. BabasahebAmbedkar Writings and Speeches, Dr. BabasahebAmbedkar Source Material Publication Committee, Government of Maharashtra, Part Three, 17, 475 (2003)
- Ambedkar B.R., Annihilation of Caste, Dr. BabasahebAmbedkar Writings and Speeches, Education Department, Government of Maharashtra, compiled Vasant Moon, 1, 68-69 (1979)
- Ambedkar B.R., State and Minorities, Dr. BabasahebAmbedkar Writings and Speeches, Education Department, Government of Maharashtra, compiled Vasant Moon, 1, 402 (1979)
- Ambedkar B.R., Philosophy of Hinduism, Dr. BabasahebAmbedkar Writings and Speeches, compiled by Vasant Moon, Higher Education Department, Government of Maharashtra, 3, 44 (1987)
- D.R. Jatava, (1997): Social Philosophy of B.R.Ambedkar, Rawat Publication, New Delhi.
- Gopal Guru (1998): ‚Understanding Ambedkar’s Construction of National Movement”, Economic and Political Weekly, Vol. 33, No. 4, January 24-30, pp. 156-157.
- Gopal Guru (2002): ‚Ambedkar’s Idea of Social Justice‛ in Ghanshyam Shah (ed), Dalits and the State, Concept Publishing Company, New Delhi.
- JadhavNarendra (1991): ‚Neglected Economic Thought of BabasahebAmbedkar‛, Economic and Political Weekly, Vol. 26, No. 15, April. 13, pp. 980-982.
- K.S. Kazeha, (1998): ‚B.R.Ambedkar; the Architect of the Constitution‛, in Shymlal&Sazena K.S. (ed), Ambedkar and National Building, Rawat Publication, Jaipur.
- P. Mohan Larbeer (2003): Ambedkar on Religion: A Liberative Perspective, ISPCK. Delhi.
- P.P. Vijayan, (2006): Reservation Policy and Judicial Activism, Kalpaz Publication, New Delhi.
KshirsagarRamchandraKamaji, Political thought of Dr. BabasahebAmbedkar, Intellectual publishing house, New Delhi, 1992, p.53. Singh Raghubir : Dr. Ambedkar and Dalit Chetna, Publisher, KamnaPrakashan ,C=19, DDA Flats , Loni Road, Delhi – 110093 , Page No. 69Gaba, O.P : SamkalinRajanitikSidhanta , Publisher, National Publishing House , 2/35 Ansari Road , Daryaganj , Delhi 110002, Page No. 251
Singh Ramgopal : Dr. AmbedkarKaVicharDarshan, Publisher, Madhya Pradesh Hindi Granth Academy, Ravindranath Thakur Marg, Banganga Bhopal (M P ) – 462003, Page No. 222 (Satyapal, 2010) (Ambedkar, 1936:31) (Ambedkar, 1917) (BAWS Vol.1pp.51) (BAWS Vol.1pp.269-70) (BAWS Vol.3pp.304) (Larbeer, 2003) (Larbeer: 2003)
Shashi S.S. (Dr.) (Editor), Ambedkar and social justice, volume I, Director, Publications division, Ministry of Information and Broadcasting, Government of India, New India, 1992, p.162.
Moon Vasant (ED), Dr. BabasahebAmbedkar writings and speeches, VolIII ,Ambedkar B.R. Philosophy of Hinduism, p.66.
KshirsagarRamchandraKamaji, Political thought of Dr. BabasahebAmbedkar, Op. Cit, p.57.
KshirsagarRamchandraKamaji, Political thought of Dr. BabasahebAmbedkar, Op. Cit,p.59.ibid, p.60. (BAWS Vol.17.3pp.53)
A COMPARISION OF COPYRIGHT LAWSOF INDIAAND PAKISTAN
[Vol 3/Issue 1/ April 2017]
RaghavBansal BBA.LL.B (H) 9th Semester Amity Law School, Noida (U.P) Email ID: firstname.lastname@example.org
This article reproduces the prominent categories of copyright laws in India and Pakistan, compares them to their relevant counterparts in the other country, and provides an analysis for each of those categories.
Keywords: India, Pakistan, comparison, copyright law, Protected Works
INDIA AND PAKISTAN: PROTECTED WORKS
COPYRIGHT SUBJECT MATTER
Indian Copyright Act, 1957 Pakistani Copyright Ordinance To be eligible for protection, an item must be both original, and an expression of an idea, as opposed to an idea. Ideas cannot be copyrighted, and this is well established by the idea-expression dichotomy. The requirement of originality is mentioned in S. 13(a), which extends copyright protection only to ‘original’ literary, dramatic, musical and artistic works. The copyright does not protect an idea, but only the expression of the idea
In Pakistan, as well as in India, it is an expression of an original idea that is protected, as opposed to an idea itself. This is the basic requirement and concept of copyright law everywhere.
CATEGORIES OF PROTECTED WORKS
Indian Copyright Act (Section 13) Pakistani Copyright Ordinance (Section 10) (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recordings;
10.— (1) Subject to the provisions of this section and to the other provisions of this Ordinance, copyright shall subsist throughout Pakistan in the following classes of works, that is to say,
(a) original, literary, dramatic, musical and artistic works;
(b) cinematographic works; and
includes computer programmes tables and compilations including computer data basis;
includes works on humanity, religion, social and physical sciences, tables, compilations of data or other material in any form and computer programmes, that is to say, programmes recorded on any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information;
Dramatic works: includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film Dramatic works: includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematographic work Musical works: means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music Musical work: means any combination of melody and harmony or either or them, printed, reduced to writing or otherwise graphically produced or reproduced; Artistic works:
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) work of architecture; and
(iii) any other work of artistic craftsmanship
Artistic work means,—
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an
engraving or a photograph, whether or not any such work possess artistic quality;
(ii) an architectural work of art; and
(iii) any other work or artistic craftsmanship;
Cinematograph films: means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films Cinematograph works: means any sequence of visual images including video films of every kind, recorded on material of any description (whether translucent or not), whether silent or accompanied by sound, which, if shown (played back, exhibited) conveys the sensation of motion;
The copyright laws in India and Pakistan are, to a very large extent, the same. There are only a few differences, and most of those differences are in the letter of the law, as opposed to the spirit of the law. In each of the cases above, in the categories of protected works, what is protected is exactly the same, just worded a little differently.
As regards literary works, the letter of the law is a little different from the letter of the law in India, however, the spirit of the law remains the same, as the same protection that is laid out in Pakistani law is extended to the same subject matter in India.
Pakistani Copyright Ordinance Registration of the work is not compulsory to acquire protection for eligible works under this Act. Title in copyright is not dependent on registration, the moment artistic work is created or expressed in any tangible medium of expression, unless otherwise so agreed by the author or created in terms of contract if any, with third party and the moment it is shown that the claim based on the registration is founded on fraudulent misrepresentation; such right could be successfully defeated and defended by the author of the work or his representative.
In both India and Pakistan, as well as every other country that is a signatory of the Berne Convention, registration of copyright is not necessary to avail protection of works under the respective statute.
Pakistani Copyright Ordinance (Section 10) Copyright shall not subsist-
(a) in any cinematograph film a substantial part of the film is an infringement of the copyright in any other work;
(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
S. 10 (3) Copyright shall not subsist—
(a) in any cinematographic work, if a substantial part of the work is an infringement of
the copyright in any other work;
(b) in any record made in respect of a literary, dramatic or musical work, if in making
the record, copyright in such work, has been infringed.
As related to unprotected works, the works in consideration are exactly the same, and the respective sections are worded the same as well.
PROTECTION OF COMPILATIONS
2(o) Pakistani Copyright Ordinance (Section 2(p)) “literary work” includes computer programmes, tables and compilations including computer “literary data bases Literary works:
includes works on humanity, religion, social and physical sciences, tables, compilations of data or other material in any form and computer programmes, that is to say, programmes recorded on any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information;
Both India and Pakistan protect compilations of data under their respective copyright statutes.
WHO CAN CLAIM COPYRIGHT?
17 Pakistani Copyright Ordinance (Section 13) First owner of copyright.-Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein Subject to the provisions of this Ordinance, the author of a work shall be the first
owner of the copyright therein
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work a) in the case of a literary, dramatic or artistic work made by the author in the course
of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein (b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematographic work made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of a work made in the course of the author s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (d) in the case of a Government work, Government shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein;
(e) in the case of a work to which the provisions of section 41 apply, the international organisation concerned shall be the first owner of the copyright therein. e) in the case of a work to which the provisions of section 53 apply, the international
organization concerned shall be the first owner of the copyright therein.
As regards the first owner of the copyright, both India and Pakistan have the same provisions, related to author, work made for hire, government work, work for international organizations, and work for consideration.
MODE OF TRANSFER
Pakistani Copyright Ordinance (Section 15) (1) No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.
(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.
(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.
(4) Where the assignee does not exercise the rights assigned to him under any of the other subsections of this section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.
(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.
No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent.
In India and Pakistan, the general mode of transfer of copyright is the same, i.e., transfer by a duly signed agreement. Indian copyright law, however, does have some additional stipulations that dictate whether or not an agreement so made will be valid.
DURATION OF COPYRIGHT
22 Pakistani Copyright Ordinance (Section 18) 22. Term of copyright in published literary, dramatic, musical and artistic works.-Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies. Except as otherwise hereinafter provided, copyright shall subsist in any literary,
dramatic, musical or artistic work (other than a photograph) published within the lifetime of
the author until fifty years from the beginning of the calendar year next following the year in
which the author dies.
The duration of copyright protection granted to a work in India is 60 years plus the lifetime of the author, while in Pakistan, the duration is 50 years, in addition to the lifetime of the author.
WHAT COPYRIGHT IS
RIGHTS GRANTED TO THE OWNER OF A COPYRIGHT
Pakistani Copyright Ordinance (Section 13) For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely (1) For the purposes of this Ordinance, “copyright” means the exclusive right, by
virtue of, and subject to the provisions of, this Ordinance,
(a) in the case of a literary, dramatic or musical work, not being a computer programme, –
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(a) in the case of a literary, dramatic or musical work, to do and authorize the doing of
any of the following acts, namely:
(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to produce, reproduce, perform or publish any translation of the work;
(v) to use the work in a cinematographic work or make a record in respect of the work;
(vi) to broadcast the work, or to communicate the broadcast of the work to the public
by a loudspeaker or any other similar instrument;
(vii) to make any adaptation of the work;
(viii) to do in relation to a translation or an adaptation of the work any of the acts
specified in relation to the work in sub-clauses (i) to (vi);
(ix) to authorize the rental of computer programmes;
(b) in the case of a computer programme-
(i) to do any of the acts specified in clause (a);
(c) in the case of an artistic work-
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);
(b) in the case of an artistic work, to do or authorize the doing of any of the following
(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to use the work in a cinematographic work;
(iv) to show the work in television;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to
the work in sub-clauses (i) to (iv);
(d) In the case of cinematograph film, –
(i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;
(c) in the case of a cinematographic work, to do or authorize the doing of any of the
following acts, namely:
(i) to make copy of the work;
(ii) to cause the work in so far as it consists of visual images, to be seen in public and,
in so far as it consists of sounds, to be heard in public;
(iii) to make any record embodying the recording in any part of the sound track
associated with the work by utilizing such sound track;
(iv) to broadcast the work;
(v) to authorize the rental of cinematographic works;
(e) In the case of sound recording, –
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.
(d) in the case of a record, to do or authorize the doing of any of the following acts by
utilizing the record, namely:
(i) to make any other record embodying the same recording;
(ii) to use the record in the sound track of a cinematographic work;
(iii) to cause the recording embodied in the record to be heard in public;
(iv) to communicate the recording embodied in the record by broadcast.
55 Pakistani Copyright Ordinance (Section 60) (1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right :
Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable.
(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Ordinance, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right:
Provided that if the defendant proves that at the date of the infringement he was not aware that copyright subsisted in the work and he had reasonable ground for believing that copyright did not subsist in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the Court may in the circumstances deem reasonable.
(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may be, appears on copies of the work as published or in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be.
(3) The costs of all parties in any proceedings in respect of the infringement of
copyright shall be in the discretion of the Court.
S. 63 Any person who knowingly infringes or abets the infringement of- (a) the copyright in a work, or (b) any other right conferred by this Act, except the right conferred by section 53A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees : Provided that 127where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation.-Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section. 66. Any person who knowingly infringes or abets the infringement of—
(a) the copyright in a work;
(ab) the rental rights in cinematographic works and computer programmes;
(ac) the rights of performers or producers of sound recording; or
(b) any other right conferred by this Ordinance,
shall be punishable with imprisonment which may extend to three years, or with fine which
may extend to one hundred thousand rupees”, or with both.
63A. Enhanced penalty on second and subsequent covictions. – Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees: Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the commencement of the Copyright (Amendment) Act, 1984. 70B. Where any person convicted for an offence punishable under section 66, 66A,
66B, 66C, 66D, or 70A, is again convicted for the same offence, the said section shall have
effect as if for the words “one hundred thousand” therein the words “two hundred thousand” were substituted.
In the matter of offences and penalties, there is a noticeable difference in the laws of Pakistan and India. Pakistani law does not provide a minimum sentence for the infringement of copyright, but their maximum sentence is three years. Indian copyright law does provide for a minimum sentence, i.e., six months, but the maximum sentence is the same as that of Pakistan, i.e., three years. The fine under Indian law is INR 50,000 – 2,00,000, whereas the fine given under Pakistani law is up to a maximum of PKR 1,00,000 (~ INR 61,629) with no minimum limit.
For subsequent offences, the term of imprisonment is from one year to three years in India, while it is unchanged in Pakistan (i.e., a maximum of three years, with no minimum). As far as fine is concerned, Indian law imposes a penalty of INR 1,00,000 – 2,00,000) while Pakistan increases the maximum penalty to PKR 2,00,000 (~ INR 1,23,258), with no minimum limits. Again, if compared in the same currency, i.e., INR, the maximum penalty in Pakistan (similar to Nepal), is slightly more than the minimum penalty in India.
Civil remedies in India and Pakistan are the same in cases of copyright infringement, and at the discretion of the Court.
R.G. Anand v. Deluxe Films AIR 1978 SC 1613 Independent Media v Ali Saleem & Others (2006 CLD 97) ADT Services & Another v M/s. ADT Pakistan (Pvt.) Ltd. & Others (2005 CLD 1546)Eastern Book Company v. D B Modak (2008) 1 SCC 1Godrej Soaps (P) Ltd. vs Dora Cosmetics Co. 2001 VAD Delhi 177 Prof. Yousuf Salim Chishti & Others v Government of Punjab (PLD 1985 Lahore 92); ShakeelAdilzadah v Pakistan Television Corporation Ltd (1989 CLC 2447); Sheikh SaeedUllah v Mst. Mahmooda Begum Maudoodi& Others (2004 CLD 1468)Ferozesons (Pvt.) Ltd. v Dr. Col. Retd. K. U. Kureshi& Others
An Unheard Cry Behind Locked Doors And Its Need To Legally breakout
[Vol 3/Issue 1/ April 2017]
DyutiVij KaveriMalhotra B.B.A. LL.B (H) B.B.A. LL.B (H) 7th Semester 7th Semester Amity Law School, Noida Amity Law School, Noida Email Id: email@example.com Email Id: malhotrakaveriyahoo.co.in
Rape is perceived as an infringement of the bodily integrity and honour of a woman as it is a ravishment of a woman without her consent, fear or fraud, against her will. It is a violation of privacy with violence and is a social and mental outrage. Marital rape is a concept that causes mental anguish to the wife and the despairing reality is that she has suffered it silently under the tag of a sacrosanct marriage. It is form of rape which is hidden under the shield of marital relation.On one hand, the Hindu marriage laws embrace the wife of a husband and the mother of the children as a goddess who is worshiped and as a dharampatni and ardhangini, respectively and the daughter as Lakshmi. And on the other hand, the same dharampatni is being sexually raped by her own husband which violates the sanctity of this divine relationship which just shows his double standards.A man feels on being wedded to a woman he attains a license without an expiry date to have sexual intercoursebe it consensual or forceful with his own soulmate. These days everyone is focused on protecting themselves from the outside perpetrators but fail to identify the perpetrators who exist within the four walls of the house and results in invasion of the foundation of trust, faith and belief in the marriage. The Constitution of India is a guiding light which gives direction to all the laws. The doctrine of equality is demarcated as the heart of our Constitution in Article 14, 15 and 21. Still no heed has been paid to comply with the basic essence of these articles which can be achieved through introducing separate marital rape legislation. The paper further unveils the evolution, types along with highlighting the need to criminalize marital rape in order to break free of the patriarchal society and move towards an egalitarian society.
Key words: Marital Rape, Conjugal Rape, Preamble, Marriage, Sexual Violence
The term ‘raptus’ has given birth to the barbaric and gruesome offence called rape which basically means the act of damaging or destroying property by one man of the other. In modern sense, property relates to womenwho are the depositaries of such vicious offence. To emphasize, in today’s era women are treated as sheer property of men.It is imperative to know that rape is not only a crime against the victim i.e. the woman but it is also a crime against the entire society. This most hatred crime abolishes the entire psychology of the victim and pushes her into unfathomable and deep emotional crises which cannot be felt by any other person. The Supreme Court of India has aptly described rape as a ‘deathless shame and the gravest crime against human dignity’.
The Supreme Court asserted in case of State of Karnataka v. Puttarajathat a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of woman i.e. her dignity, clarity, honour and reputation. In India, the concept of marital rape exists only de facto and not de jure.
Probably, no other people have endeavored to idealize the institution of marriage as the Hindus have done. In India, marriage is perceived to be an implied sexual contract in perpetuity. Women are seen as mere property and marriage explicitly reinstates the ownership rights of a man over his wife. Traditionally, women’s role has been seen to be submissive, docile, innocent, dutiful, compliant and that of a homemaker. Sex has been treated as an obligation which the wives always have to comply with. This deprives the women of her integrity, control over her own body and sexuality. According to Hinduism, marital relation is deemed to be a heavenly union and also is of religious, spiritual character and not that of a contractual character. The husband is known as bhartri, because he is the support system and protector of his wife but in reality he is abusing his role and violating his wife. In our society, there is a taboo that a wife always has to submit herself to the sexual pleasures of her husband without any resistance, as it is seen as her wifely and conjugal duty. In Mango Ram’s case, the Court held “Submission of body under the fear or terror cannot be construed as a consented sexual act, consent for the purpose of Section 375 requires voluntary participation.” If women are to wrest control of their lives, they have to have the right to say no to their husbands without being socially penalized for it. It is a form of rape that is hidden under the shield/iron curtain of marital relations.
Rape is the genus and marital rape is its species. These two terms are complete antonyms of each other and can be separated under two heads
MARITAL RAPE-A Pendulum which shifts from being a crime to a
Marriage is holy, indissoluble and perpetual unison of two individuals in the most pious form. This divine union has, from time immemorial been treated as a sanskaram(sacrament) which is an essential ceremony holding an indispensable object to constitute a perfect purification of a hindu.
Rape is an act of violence, plunder, abuse, violation of one’s body which leaves an everlasting impression. Marriage imbeds the functionality of trust, faith, belief and happiness between two individuals and rape, on the other hand diminishes the confidence in oneself, instills fear and handicaps to trust humanity. Therefore, one destroys fear and builds confidence while the other succumbs to fear respectively.
Putting these two concepts together, whatever the institution of marriage builds, rape destructs it to the very core. Hence, they are oxymoron’s of each other. Marital rape is demarcated as when a husband forcefully or threatfully enforces intercourse on his wife against her will and consent. “Consent” in rape covers state of mind from actual desire to reluctant acquiescence; it is no longer necessary in proving rape to establish that intercourse took place as a result of fear, fraud or fork, but merely that it occurred without the woman’s consent. It implies a state where the wife is physically and sexually abused by her own husband without her approval. Husband is the person in whom she invests herself emotionally, physically and mentally for an infinity. As per the UN Population Fund, more than two-thirds of married women in India, aged between 15 to 49, have been beaten, or forced to provide sex. In 2011, the International Men and Gender Equality Survey revealed that one in five has forced their wives or partner to have sex. Other statistical researches have also revealed that 9 to 15% of married women are subjected to rape by their husbands. This non-consensual conduct by her own husband violates and breaks every bone of all the trust and faith which constitutes the foundation of a holy union in a husband. A marriage is rightly on the same footing as a barter system as it includes exchange of promises and vows, one major and primarily being ‘sex’. Marital rape is actually an offence which occurs within the closed room of a matrimonial home that diminishes a wife’s status to that of an object just used for sexual fulfillment.
Derivation of concept of Conjugal Rape
Marital rape can be traced back to the assertions made by Sir Mathew Hale, Chief Justice in England during 1600’s:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract.
According to Sir Matthew Hale a wife does not have a say in the sexual relationship which she shares with her husband. She is supposed to blindly accommodate his needs which also includes his sexual needs. Even if it makes her uncomfortable she has to submit herself to her husband without complaining. This theory of irrevocable consent has emerged from the very vows that are exchanged between the husband and the wife. These vows represent a sacrosanct in which there is an underlying condition that a wife is at the beck and call of the husband’s sexual needs.
On the contrary, in the highly famous case of R v R, both the court of appeal and the house of lords upheld the rape conviction of the defendant on the ground that marital rape exemption did not exist in English Law The presiding judge Lord Keith supported the modernistic view as portrayed in his judgment in which he said that ‘Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be subservient chattel of the husband. As a result of this declaration England and Wales amended the status of married women. The judgment of the European Commission of Human Rights in C.R. v. UK supported this modernistic view which concluded that a rapist remains a rapist regardless of the relationship between him and the victim. Importantly, this judgment complied with the fundamental objects of Convention on Human Rights which basically focuses on human rights, dignity and freedom. Therefore, statutory recognition of this was also given in the Criminal Justice and Public Order Act,1994. Following this in the Canadian Supreme Court decision in R. v. J.A where Chief Justice McLachlin highlighted that the relationship between the accused and the complainant ‘does not change the nature of inquiry into the matter of consent for the sexual activity.’After the changes in Common Law many countries took a step forward and criminalized marital rape which shows the journey from a country having not a humongous list of marital rape crime like the Soviet Union (1922) to a country having the maximum marital rape crime rate like the United States of America which started in the mid-1970s and by 1993 marital rape was a crime in all 50 states. The list is never ending as maximum number of countries have embraced the importance of a woman as a wife who in a marriage should not play a role of an unequal person rather must stand at an equal stature like Poland, Germany, Bhutan, Austria, Canada, South Africa, Australia, etc. India being a developing country still has not accepted the fact that marital rape is a crime and thus, it must be punished as it is an injustice against the State and not just an individual woman in contrast to the countries which are under developed.
CLASSES OF MARITAL RAPE
The following two kinds of marital rape are identified the prevalent society:
1. Battering rape:
In battering rape, women is subject to not only physical but also sexual violence in the relationship. The term battering refers to striking of hard blows on any part of the body which usually is the vaginal area.
Sexual Violence Physical Violence
Sexual Violence includes when the husband forces his wife to have sex against the will and consent.
The latter includes injuries to the vaginal and anal areas which result in miscarriage, stillbirths, bladder infections, infertility, laceration, soreness, bruising, torn muscles, fatigue and vomiting. Other grievous physical injuries include broken bones, black eyes, bloody noses, knife wounds during sexual violence. As understood, physical and sexual violence go hand in hand.
2. Force-only rape:
Under this kind of marital rape husbands use the substantial amount of force required to force themselves on their wives when the wife has refused sexual intercourse. This level of forceful captivity used by the husband leaves the wife with no escape and thus is left to succumb to him.
Paralyzed scenario of Matrimonial laws in India
Though India has advanced in every possible area, one of the most humiliating acts which is marital rape is still not considered as an offence in India. Section 375 of IPC explicitly deals with one of the most heinous sexual crime known as rape, our Indian legislators have even widened the ambit of the act ‘rape’ by bringing in the Criminal (Amendment) Act, 2013. Despite of uncountable amendments and various law commissions the legislators have certainly failed to incorporate marital rape as an exclusive offence. Section 375 of IPC describes detailed circumstances which constitutes the atrocious, forceful, non-consensual, unwilling, coercive and disapproved sexual intercourse upon a woman’s frame. However, it provides an overt exception that is a husband would be punished for his sinful act of forceful sexual intercourse with his own wife who is between the age group of 12 to 15 years of age. This shows that there is no protection for the wife who is above the age of 15 years and is a victim of rape in her own marriage. Thus, the law is discriminatory on the age factor for wives who are facing the same physical and mental trauma. The variation and discrimination has not only been confined in the definition u/s 375 of IPC but also when it states the punishment of the act u/s 376. The punishment u/s 376 is not less than 7 years but may extend to a term exceeding upto 10 years or life imprisonment and also shall be liable to fine but the exception provides that if the husband rapes his own wife (12-15 years of age) in such a case he will only be punished with imprisonment not exceeding 2 years with fine or both. This shows that the punishment drastically varies not only on the ground of age factor but also because of the familiarity component. Section 375(6) gives an absolute protection to an unmarried girl who is up till 18 years of age to be a victim of rape even if the act of sexual intercourse has been done with her consent but on the other hand there is an utter absence of protection for a married girl who is above 15 years of age and is subject to non-consensual sexual intercourse. Thus, it can be clearly seen that the law which is considered as the guardian of the victimized is scarce and unsatisfactory to protect the interests of those afflicted with the ill of marital rape.
The 42nd Law Commission Report suggested that marital rape should not be covered under Section 375 but a separate section should define it along with its punishment.
The 172nd Law Commission Report which was passed in the year March 2000 suggested that the term rape should be substituted by the term sexual assault as it is much wider than rape. In the illumination of Sakshi v. Union of India and Others, it was held that ‘sexual assault on any part of the body should be construed as rape. They also suggested that the exception provided to a husband should be removed and forceful sexual intercourse by a husband on his wife of any age should be punished as any other form of rape.
The Preamble Article 14 Article 21
The Constitution of a country is the text that reflects the soul of the nation. The Indian Constitution organizes and controls power, ensures human rights, balances the competing claims of social and individual interests, mirrors the cultures and experiences of the country and operates as a vehicle for national progress and unity.
As per the Indian constitution every section of any law which is passed in the country must and has to be in conformation with the principles, theory, ideas and the essence enshrined in the constitution. Any law or part of the law if fails to meet the guidelines of the constitution would be considered ultra vires and is guilty of being struck down by the court.
The Preamble to the Constitution is not a mere flourish of words, but was an ideal set up for practices and observance as a matter of law through Constitutional mechanism. The preamble of Indian constitution poses as a lifeline for all articles which are embedded in the constitution. The preamble gives birth to key components mentioned the constitution such as Equality and Social Justice which are 2 sides of the same coin. The preamble is like the mother of article 14 and 21 and its compliance is uncompromising, inflexible and unbending facets of the preamble.
Right to Equality
Article 14 Article 15
Article 14 talks about the responsibility of the state to make sure that no person is denied equality before law or equal protection of the laws within the territory of India.
The doctrine of equality before law goes hand in hand with the concept of rule of law which constitutes as the basic structure of the constitution. This doctrine of equality is the very essence of democracy. This doctrine does not only talk about equality before law but also enshrines the real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation as is thus consequently an essential ingredient of social and economic justice.
But the exception given to a husband under Section 375 of the Indian Penal Code, 1860 to rape his own wife after the age of 15 without him being punished is unreasonable. A woman who has been subject to rape should not be classified on the basis of being married or not. A rape is a rape whether it has been committed by a stranger or a husband as the turmoil undergone by the woman does not change with reference to the identity of her rapist. This classification on the basis of relationship between the victim and the rapist is arbitrary. To achieve an egalitarian society it is of utmost importance to remove the exception which is inserted in Section 375 of IPC as it is not in consonance with the rule of reasonable classification embedded in Article 14.
Article 15(1) mandates that the state shall not discriminate against any citizen of India on grounds of religion, race, caste, sex, place of birth or any of them. Article 15 acts as an aid to realize the rule of equality which has been echoed in article 14 of the constitution. Article 15(1) is the specific application of article 14 as it is an extension of article 14. Article 15(3) plays an imperative role as it provides that the state has the magic wand to make any special provision for women and children. Article 15(3) is an exception to the basic rule embedded in clause (1) and (2) of Article 15. Many laws have been passed in favor of empowering women such as
- The Dowry Prohibition Act, 1961
- Protection of Women from Domestic Violence Act, 2005
- The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013
- National Commission for Women Act, 1990
Many sections of various acts have provided special provisions for women like Section 437 of Cr.P.C which provides for bail in non-bailable offences to persons under 16 years of age or a woman or sick or infirm person. Similarly, the Hindu Marriage Act’s section 13(2)(iv) permits a woman to present a petition for dissolution of marriage by a decree of divorce on the ground that her marriage whether consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage before she has attained the age of 18 years. These provision does not give similar right to a man/husband respectively.
In reference to these provisions and many more, if the state can make women specific laws for their protection and empowerment then, why can’t marital rape be designed as a separate section with specific punishment that is not discriminatory, unfair, biased, arbitrary and whimsical on the basis of age and relationship.
Right to life and liberty
Article 21 of the Indian Constitution instills in it the right to life and personal liberty which not only includes mere physical existence but living with human dignity. Declaring that the right to life includes the “finer graces of human civilization”, the Supreme Court in P.Nalla Thampy Terah(Dr.) v. Union of India, virtually rendered this fundamental right a repository of various human rights. Post the case of Maneka Gandhi v. Union of India Article 21 has become the source of all forms of rights which aim to protect human life and liberty.
In addition to these landmark judgments, the Supreme Court has also firmly asserted and opined in a catena of cases that the offence of rape violates the right to life and the right to live with human dignity of the victim of crime of rape.It is a crime against human rights and is also violative of the victim’s most cherished of the fundamental rights, mainly right to life and personal liberty enshrined under Article 21 of the Constitution of India and in its noble Preamble.Right to Sexual Privacy has also been couched under this article after being recognized in a series of cases. It is submitted that the doctrine of marital exemption of rape violates a married woman’s right to sexual privacy by forcing her to sexually oblige against her wishes. Every woman is entitled to sexual privacy and is not open for each and every one to violate it as per his sexual cravings. A woman is the sole decider of her body and her consent is mandatory. It is every woman’s personal choice to whom she wants to be intimate with.
Marital rape directly infringes upon the right of a woman not only to live with dignity but also violates the right to sexual privacy, right to bodily self-determination and deprivation of right to good health. Thus, the exception in Sec. 375 of the Code is in clear violation of Article 21 of the Constitution.
The urge to criminalize marital rape will find support in various international laws like:
Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) clarifies in the general recommendations 12 and 19 that the Convention should include violence against women. CEDAWis described as an international bill of rights for protection of women adopted in 1979 by the UN General Assembly. It states what all acts constitutes as discrimination against women and also sets an outline for national action to eradicate such discrimination. It provides the foundation for integration of equality between men and women by making sure that women have equal access and opportunities in political, social and public life. The member States come together to target and take all necessary measures so that women can enjoy their human rights and fundamental freedom.
The Declaration on the Elimination of Violence Against Women was adopted in 1993 by the UN General Assembly. It covers 3 types of violence- physical, sexual and psychological which also includes workplace and at home. This declaration puts a detailed explicit obligation on member states to apply with due diligence to investigate, prevent and punish acts of any violence against women.Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.
All around the world, majority of the member countries have already complied with the standards as laid down in various international norms. But India being an original member of the United Nations still has not fulfilled the required recommendations provided by them.
Causes of not criminalizing Spousal Rape
- Lack of education:
Looking at the situation of India, the fundamental influences for non-appliance of such indispensable and quintessential laws are majorly the web of poverty which results in a vicious cycle of illiteracy and uneducation. This illiteracy results in them being unaware of-
- Their own rights such as right to speak and stand against the wrong,
- The right to lead a dignified life which includes the right to say ‘no’ to anyone for any kind of forceful coercive activity against her well-being be it her very ‘own husband’ who attempts to do the same,
- The right to be economically and socially empowered,
- The right to be legally aware so that to seek justice in all unjust circumstances.
“For many years, I didn’t even know what domestic violence meant. I would just take the anger, the shouting, and the beatings, We are taught from before marriage that sex is a duty you have to perform for your husband.”
It will be surprising for some that these words came out from a 39-year-old marital rape survivor, named Bhagwati.In a report published by the United Nations, it was found that 69% of Indian women believe that occasional violence was justified, for instance when a meal hasn’t been prepared in time or when sex has been refused.This is the sheer reality that in such a civilized society where there are so many women who grow up being fed that sex to her husband is a duty which casts upon her since the day of the wedding and saying no to the same is not acceptable.
This poverty leads to:
As a result of being wrapped and draped in such a vicious cycle, the women are unable to find any way to exit and so have to oblige to the matrimonial compulsions within the four walls majorly obeying to the sexual favours forcefully asked by their husbands. Hence, this leads to the undeniable sad fact that they are unable to raise their voice to such wrong.
- Male dominance:
It is a gloomy, miserable, and dark reality that women everywhere have to face the suppression of men. India has been and is correctly and rightly witnessed as a patriarchal society. Though India has gained its independence in 1947 and recognised ‘equality’ as a basic feature of the Preamble but in this aspect only men have achieved full independence and superiority. It’s the women who have still not conquered independence and are under the threshold of the men. This male dominance is reinforced by prostitution and pornography, in which women are degraded and treated in subservient ways. Men who rape tend to believe more strongly in myths about rape, and they are more likely to engage in fantasies about coercive sex.
“Can an apple farmer be charged for plucking a fruit from his plantation?” he asked. Mungure said even if a husband is forcing himself on probably his sick wife, he still does not see it as rape. “A wife is obliged to look after her husband’s needs in and out of the bedroom”
According to basic ideology of a man, his wife is bound to serve him for eternity in all ‘his’ phases of life. Men feel that being the breadwinner of the family they are only entitled to work and get their demands fulfilled. They think that the wife should be at home, taking care of the children and the house and when he comes back home from work he expects that there should be a prepared meal and after he is done with the food, the wife is only expected to clear up and lastly she must completely surrender herself to his sexual needs even if she is not willing to do so. This portrays that the husband demands a superior position and sees the wife as a machine who is to be regulated by the husband only.
This illustrates that women are at the complete disposal of men where they have to be fully dependent on the husband financially and socially since he is the sole earner of the family. Due to this the husband looks, dominates and uses the wife merely as a property that he can seize as per his own whims and fancies. This can also be seen why the term rape is derived from the word ‘raptus’. This principle of ‘controlling the wife as a husband’s property’ can also be interpreted from Section 497 of the IPC i.e Adultery. If we see historically, the notion of rape came into force to protect male interests in women, akin to property rights and not for empowering women. In 1707,English Lord Chief Justice John Holt expressed that the if a man has sexual relations with another’s wife, it would be regarded as the maximum invasion of property. Due to the particular mindset that committing of rape and adultery infringed the rights of husband hence, many cultures witnessed an amalgamation between rape and adultery. Rape as a crime was constructed as a property crime against a father or husband not as a crime against the woman’s right to self-determination. This proves that marriage is that ceremony where the husband is handed over by the power of irrevocable consent to have sexual intercourse with his own wife at any point of time as he would demand. This consent commences with the completion of the 7th phera at the time of saptpadi until the dissolution of marriage.
- Societal beliefs:
It is not only the men who support the idea of conjugal duty of women to serve themselves as a property to have sex without consent. It is also braced by the members of the family and the society who are prejudiced by the customs, values, beliefs and their mindset. They feel that it is mandatory for a woman to submit herself to her soulmate as and when he wishes to. This submission includes physical as well as social involvement by her as and when commanded by the husband. Thus, the inkling of the right to demand sex by the husband is his conjugal right which is accurately embraced by the member of the family as well. The societal stigma of women is always attached to her husband as she is deemed to be pati-vratastri means pure, faithful and obliging women.
Such assertions made by the family members forces the women not to raise her voice as it would wear and tear the marriage which would result in destruction of the family structure.
- Economic Dependence:
Another main stimulus because of which the society has such strong notions is that the wives are economically weak and hence, are dependent on the husbands. Since the wife is said to be the homemaker and the husband is the earner, the issue of economic dependence serves as a main reason as to why the family and society forbids the women to speak up and bear marital rape.
- Political Influence:
One of the contributing reasons for non-criminalization of marital rape is the view of India’s leaders who argue that interfering with the sexual intercourse between a husband and wife would be at odds with the culture of the country. That group includes Maneka Gandhi, union minister for women and child development, Haribhai Parathibhai Chaudhary, who opined that such a concept has no application in a country like India where marriage is a sacrosanct ceremony.
- Other reasons:
There are many other reasons which throw in towards the pre-fixed notion of not criminalizing marital rape in India. They are as follows:
- Misuse of law: Many are of this opinion that if marital rape is criminalized then, a lot of women would seek this opportunity andunreasonably use this to trap their innocent husbands. There are many laws which are already abhorrently being misused such as laws relating to dowry, cruelty, rape, domestic violence and many more. If a proper law is passed for criminalizing marital rape it would just add to the list of the millions of laws which have already been misused and are being misused every day. There are many cases which portray the harsh reality that even though many laws have been framed for the empowerment of women still, they file false cases when they were angry or dissatisfied with their marital life and use such insightful laws to their advantage. Since claims regarding to dowry, domestic violence, rape etc are taken very seriously, hence, even it is a false case and there is no fault of the men, still, they would be gravely punished for an offence which they haven’t even committed. This is why there is so much of resistance in formulating laws regarding this issue.
- Another compelling reason to not criminalize marital rape is that it is very difficult to prove. It’s said that it is very hard to register sexual assault, sexual abuse against one’s husband and if the cases regarding marital rape come into focus it will all the more be harder. It would be extremely difficult to examine whether the consent is obtained or not in marital rape. Thus, it makes it impossible to prove marital rape and would add more burden to the already burdened judiciary system.
- Many politicians, law makers believe that in fact India does have provisions for marital rape but the only difference is that it is not explicitly mentioned anywhere. They feel that there is no need to separately pass a law if there are provisions to indirectly take care of such situations. Section 376 of IPC specifically lays down that a man can be charged of rape if his wife is less than 15 years of age. Also, Provisions (Section 3(a)) of Protection of Women from Domestic Violence Act 2005 that comprise of the term Sexual Abuse which includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman. This indirectly includes Marital Rape and women can claim protection and compensation under provisions of this Act. Also, they feel that if marital rape is committed on women, they can also seek protection under the provision of cruelty under Indian Penal Code. Cruelty includes physical as well as mental cruelty. And this can be a ground for divorce under the Hindu Marriage Act, 1955.
Suggestions and Conclusions
As discussed there have been many laws passed for the protection of women, criminalizing marital rape must also be added to the existing list of laws passed.In the highlight of the inhibitions discussed above it has come to the notice that education is the fundamental preface to the issue of criminalizing marital rape in India. If focused on educational empowerment of women in both rural and urban areas it would certainly and surely lead to literacy which would further advance them to be more independent and shall liberalize them. Educating a woman makes her more aware about her rights and gives her the opportunity to be economically and socially independent. It would also give her the courage to fight for her own rights and seek justice and respect that she deserves. On stage it is shown that India is a developing nation which embracing modernization and westernization with open arms but the reality always runs behind the curtains where India still hoists the flag of having a backward thinking. India has always been known as a patriarchal society which paves a way for the men to dominate and rule leaving behind the women. It is high time to break the conservative mindset and move towards an equitable society where both men and women operate at par with each other in every aspect.In reference to the spheres in which parity must be achieved is inclusive of both economic as well as social domains. The basic ideology of the society is that only a man can earn and take care of his family but education will empower the women to support herself and her family and replace the man. According to the orthodox theory endorsed by the society Indian wives are still pictured as proud possessions of their husbands where men are the puppet masters. As already stated many people are of the view that criminalizing marital rape will be more difficult to prove and will give the wife more opportunity to misuse the law. But this does not mean that a State stops bringing in new laws on the same pretext as mentioned above. In denial of the same it can be stated that every law passed has certain loopholes that can be misused and therefore, it is the universal rule that every Court has to make sure that stern evidence has to be given to meet the ends of justice. Leaving a husband unpunished for committing forceful sexual intercourse on his own wife is shocking as it encourages many other husbands that they can escape, thereby, weakening the system’s credibility. It is necessary that appropriate punishment should be imposed so as to respond to the society’s cry for justice against the rapists. The argument that is made for not bringing marital rape is whether the State can barge into the boundaries of one’s house? The answer lies in many laws which have already been passed like the domestic violence act, dowry prohibition act, divorce and many other instances. Hence, a no should be treated as a no for everyone whether it is someone’s husband, stranger or acquaintance and thus marital rape should be treated as a separate offence with a specific punishment. BodhisattwaGautam v. Subhra Chakraborty AIR 1996 SC 922 AIR 2004 SC 413; 2004 Cr LJ 579 (SC) State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224
Hindu law, Justice PS NARAYANA R v. Olugboja, (1982) QB 320 Laws relating to offences against women, VK Dewan Sir Matthew Hale. History of the Pleas of the Crown, 1 Hale PC (1736) 629 R v. R  UKHL 12 23 October 1991 ECHR 22 Nov. 1995  2 SCR 40, para. 64June 19712004(5) SCC 518 Roy, Sudhanshu & Jain, Iti, “Criminalizing Marital Rape in India: A Constitutional Perspective”, Criminal Law Journal, Apr 2008, p. 81-92. Indra Sawhney v. Union of India, 1992(Supp-2) SCC 217M. Nagaraj v. Union of India, AIR 2007 SC 71 The constitution of India, An Analytical Approach by H.K Saharay, Fourth EditionRoop Narain Verma v. Union of India AIR 2007, Chhat. 64, 66 Also, reiterated in Pratap Singh v. Union of India AIR 1985 SC 1695AIR 1978 SC 597The Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988 Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922 SCW 325 ↑
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