Women and the Law

The status of women has been subject to many radical changes in the past few decades. With decline in their status from ancient to medieval period to demand of equal rights by reformers, the history of women in India has indeed been eventful.

In a sovereign civilized state, laws hold the primary position. Therefore it would be quite true to say that legislations have played a very pivotal role in the transformation of this status.

It all started right before independence with the enactment of Prevention of Sati Act 1829 which was then followed by various other laws. Post independence, the hopes began to rise. India’s constitution and the founding fathers were determined to ensure equality in general and gender equality in particular to the citizens.

The preamble, fundamental rights, directive principles of state policies have provided several safeguards to secure the human rights of the women. This is so, because one of the classes of society which was much oppressed since several years was the class of women. Therefore, it became essential to make them stand on an equal footing by aiding them with such special laws.

Some legal rights which a woman should be aware of are:-

Right to Zero FIR

Under Zero FIR, any woman who has been molested or raped can file a police complaint in any police station in the city. Usually police stations do not register complaints if the crime does not occur in their jurisdiction. However, the Zero FIR rule allows for an FIR to be filed in any police station in the city. Once an FIR is filed, the senior officers will direct the Station House Officer(SHO) to lodge an FIR in the relevant police station.

Right to privacy

Under section 164 of the Criminal Procedure Code, a woman can record her statement in private if she has been raped. She would record the statement only in front of the magistrate. She can also record her statement in person with a lady constable or police officer.

Right to free legal aid

A woman who walks into the police station has a right to ask for free legal aid. Often there are cases where a woman is misquoted or humiliated and this law has been brought in to ensure she gets proper justice.

Right to virtual complaints

A victim, who is unable to go to the police station, can also register a police complaint by e-mail or registered post. This should be addressed to the senior police officer or Deputy Commissioner or Commissioner of Police. Once they receive the letter, they will ask the SHO of the police station where the incident occurred to investigate and file an FIR. A victim can then give her statement even at her home to the police.

Right to untimely registration

A victim might go to the police station immediately to file a complaint. Police have no right to say that the complaint is not timely and reject it. The woman is allowed to file a complaint even at a later date as her self-respect is important above all.

Right to no arrest

The Supreme Court has ruled that no woman can be arrested before sunrise or after sunset. A woman can exercise this right even if a woman police constable is present at night. If the police deems it important to arrest a woman at night, they need to have a letter from the magistrate explaining why the arrest is necessary.

Right to confidentiality

The law states that the identity of a rape victim cannot be revealed. According to Section 228-A of the Indian Penal Code, the disclosure of a victim’s identity is a punishable offense. The victim’s name cannot be printed or published nor can anything else that will reveal her identity. The law is in place to ensure that she is not ostracised or victimised because of the sexual crime committed. In the judgement also she is only referred to as the ‘victim’ and not by name.

Right to not being interrogated in the police station

Under Section 160 of the Criminal Procedure Code, a woman cannot be called for interrogation to the police station. She can be questioned at her home in the presence of a woman constable and her family or friends.

No sexual harassment

By law, every employer in India has to have a Sexual Harassment Complaints Committee in the organisation (private or public). The Supreme Court has issued guidelines on how to set up these committees. The committee is to comprise of 50 percent women and one member should be part of a women’s welfare group.

Rape is a crime

Section 164 A of the Criminal Procedure Code states that a victim of rape has to undergo a medical examination and the report thereby becomes proof. A victim can ask for the copy of her report. Rape is considered a crime and not a medical condition and thus the medical officer examining her cannot make a diagnosis. The medical officer can state if there has been any sexual activity. He or she cannot decide if rape had taken place or not.

Thus laws have indeed played a very important role in the lives of woman. Their conditions have no doubt been improved. However, the present scene is not desirable too. Women safety is still a very big concern and with time and awareness, the solution shall be sought for.


ABOUT THE AUTHOR

Krupa Thakkar

KRUPA THAKKAR

Krupa Thakkar is currently pursuing BLS LLB from Government Law College, Mumbai. She is presently in her second year. Always eager to learn new things, she keeps herself updated with happenings around the world. Though not an extrovert, she makes sure that she performs the best whenever she is allotted any task.

A Need to Define Limits to Constitutional Change

Constitutional reform, progressively known as constitutional change[1] in recent times, is an act of the state that results in a change in the constitutional text of the nation. Undoubtedly, there is a dire need of regular changes to a constitution keeping in view the ever-dynamic nature of the law as well as society. Also, almost all the constitutions[2] across the globe realise the necessity of a carefully designed well-defined process[3] therefor.

However, the debate arises when the question concerns the limit to which such changes can be made. The Constitution of a country undoubtedly provides the basic foundations for the building of political, economic, and legal systems thereof; and changes to the constitution may have serious effects on those, sometimes a detrimental one.

There arises a proposition that apart from providing a carefully crafted process for such constitutional changes, there must be some underlying rule or principle governing the limit to such changes. And, since the limits cannot be set by statutory means,[4] there must be underlying doctrines to serve the same.

Time and again various supreme courts have observed the necessity to define limits to constitutional change and have manifested their observations by laying down doctrines.[5] Also, sometimes the doctrines have been created out of the court rooms.[6] And in both the cases, there lies a belief at the root of this that there must be a limit to the constitutional change.

Putting limits to constitutional change seems of utmost importance when we look at the case of Turkey’s Constitutional Reform recently. Last December, Turkey’s ruling Justice and Development Party (AKP) unveiled a raft of proposed constitutional changes that may consequentially change the parliamentarian form of governance into a presidential one. Although it may seem that it has chances of ensuring stability in the governance, the chance of a one-man rule also cannot be denied.

In an ideal democracy, an unfettered power to change the constitution may be a thing of unanimous acceptance; but the case is different when there’s constantly a dark power play between parties and persons. Lack of limits to constitutional change always instils a fear of tyranny of the majority.

Noted Indian judge Hidyatullah J. observed the same when deciding for a case of similar nature in the Supreme Court of India.[7] Fundamental provisions like Fundamental Rights and Personal liberty, in his words, cannot be a plaything of the majority. Lack of any limit to constitutional changes may create occasions where the basic ideologies and fundamental provisions are treated as the plaything of the majority party in the parliament.

Apart from practical theories like the abovementioned, there also exists theoretical doctrines necessitating for limits to the constitutional change. Some doctrines, exploring the nature of the constitutional amendment power, conclude the same to be a sui generis power that rests within a spectrum between the constituent power and the ordinary legislative power. Drawing on the French Doctrine distinguishing pouvoir constituant originaire and pouvoir constituent derive, a further conclusion is drawn that the amendment power is a delegated ‘secondary constituent power’, authorised by ‘the people’s primary constituent power’.[8]

There are a number of similar arguments on the need and inherency of limits to constitutional change. The foundational structuralism argument contends that there are basic features of every constitution that make up a specific constitutional identity and a hierarchy of constitutional values beyond the reach of the delegated amendment power.[9] The basic structure doctrine developed by the Indian Supreme Court holds a somewhat similar view regarding unamendability of certain provisions.

Every power must come with its own set of limits, for limitless power opens door to tyranny, dictatorship, and corruption. Be it the foundational structuralism, the constitutional essentialism, or the basic structure doctrine, there must be set well-defined limits to constitutional change so as to prevent the constitution from being a plaything of the majority.

[1] The UK parliament has expressed the view that the term ‘constitutional change’ is to be used rather than the term ‘constitutional reform’ as the latter necessitates a positive stroke in the change. Read the full text here: https://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17704.htm

[2] Constitutions of various countries contain provisions as to how the constitutional changes will take place. For example, Article V of the American Constitution, Article 368 of the Indian Constitution etc.

[3] A well-defined process is of utmost importance as observed by many scholars and cited in many reports. See Constitution Committee, 8th Report (2010-2011): Fixed term parliament bills (HL Paper 69), para 160, UK

[4] Constitution being the supreme law, must lay down the limits and principles for itself. However, providing specific rules regarding the same will be practically of no use as they too are vulnerable of being amended/changed. Alternatively, extra-strict or rigid provisions regarding the limit also seems unreasonable owing to the constant factor of change in the national as well as global scenario.

[5] For example, the Indian Supreme Court has laid down the ‘Basic Structure Doctrine’ in the case of Kesavananda Bharati v. State of Kerala.

[6] The doctrine of Constitutional Essentialism by John Rawls is a burning example of such cases. Although the doctrine of Constitutional Essentialism has not been approved yet by the US Supreme Court, still the effect of the same on the American Constitutional Law cannot be denied.

[7] Sajjan Singh v. State of Rajastan, 1965 AIR 845, IN

[8] Yaniv Roznai, Chapter 4, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press, 2017

[9] Ibid.


ABOUT THE AUTHOR

040b09ee-6206-4c48-a095-a1bd58f6d815

ANSHUMAN SAHOO

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at http://www.anshumansahoo.in.

Current Status of Surrogacy Laws in India

India is considered to be the commercial market for surrogacy. Surrogacy is the practice where another woman carries and gives birth to a baby for a couple who want to have a child. It might become necessary in case of absence or malformation of the womb of the lady, recurrent pregnancy loss, or repeated in vitro fertilisation (IVF) implantation failures.

The discussion over surrogacy and its related laws has once again come to the forefront when the news of producer and actor Karan Johar who became a father of twins through a surrogate mother, last month came out!

The cheap availability of labour coupled with high international demand has fuelled the growth of this industry in our nation. Commercial surrogacy was made legal in India since 2002 with Indian Council of Medical Research (ICMR) laying down some pro-surrogacy guidelines which inter alia include prohibition of sex-selective surrogacy, requiring birth certificate of the baby to have the names of only the commissioning parents, requiring at least one of the commissioning parents to be a donor, requiring a life insurance cover for the surrogate mother and ensuring right to privacy to surrogate mother and the donor.

However, there was no legislative backing to surrogacy and the legal aspects over it seemed to be rather unclear, unsettled and vague. The need for a proper legal system regulating the practice of surrogacy was felt in the case of Baby Manji Yamada v Union of India and Anr(2008) 13 SCC 518. In 2007, a certain Dr. Patel working at the Akanksha Infertility Clinic, arranged for Japanese couple Ikufumi and Yuki Yamada to have a surrogate baby by Pritiben Mehta. Pritiben was impregnated using a mix of Yamada’s sperm and an anonymous Indian woman’s egg. However, in the months to come, Yamada and his wife filed for divorce. None of the Indian laws covered whose child the baby (Manji) was: the woman who donated the egg, Pritiben, or Yuki Yamada. Furthermore, there was even a petition filed later in court that Dr. Patel was running a child trafficking racket by abusing the lack of surrogacy laws, and gaining easy money by enabling surrogacy.

Though the case was solved and the baby was given to his grandmother, the Supreme Court expressed the urgent need to enact laws on surrogacy while deciding the case.

A draft ART(Assisted Reproductive Technology) Bill was formulated in 2010 but never passed as a law. Thus, the result was booming surrogacy industry with lax laws and no enforcements.

A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country.

There were no rules as to how much compensation a surrogate mother should get and can get. They are over-exploited and have turned into baby making machines.

In this light, Surrogacy (Regulation) Bill 2016 was introduced in LokSabha. It has not been passed yet.

The prime aim of this act is to abolish commercial surrogacy which is defined as surrogacy or its related procedures undertaken for monetary benefit or reward (cash or kind) exceeding basic medical expenses and insurance coverage.

The bill proposes to regulate surrogacy in India by establishing National Surrogacy Board at the central level, State Surrogacy Board and Appropriate authorities in state and Union Territories.

It only allows altruistic ethical surrogacy to intending infertile couples between the age of 23-50 years and 26-55 years for females and males respectively. The bill seems to eradicate the inside business often involved in surrogacy. This is very necessary in places like Gujarat where baby farms exist. The unprivileged parents are given as surrogates to potential mothers and exploited as baby carriers. Middlemen play a large role and take huge slices of amount given.

But, the bill has been criticized since it narrows down the realm of surrogacy. It allows only intending couples who are legally married for at least 5 years and have obtained the eligibility certificate from appropriate authority to have baby through surrogacy. Various restrictions have been put on the surrogate mother too who necessarily needs to be a close relative of the intending couple.

It does not allow surrogacy to the following people :

  • Homosexual couples
  • Single parents
  • Couples in live-in relationships
  • Foreigners
  • Couples with children ( biological or otherwise)

However, in what may turn out to be a good news for single men and women who wish to have baby through surrogate mother, a Supreme Court Bench led by Justice RanjanGogoi lately, allowed a representation to be made before the committee to consider including a “specific provision” in the Bill so as to facilitate single persons also  to embrace parenthood through surrogacy.

Following table depicts international comparison of surrogacy laws:[1]

Country India United Kingdom South Africa Russia
Type of Surrogacy involved(altruistic or commercial) Altruistic. Commercial prohibited Altruistic. Commercial prohibited Altruistic. Commercial prohibited Commercial allowed
Requirement of being married Yes No (include intending couples living simply as partners) No (Single male or female allowed) No (Single woman allowed)

 

 

 

 

Existence of a medical reason Must prove infertility No Not able to give birth to a child and such condition is permanent and irreversible Gestation and birth of child is impossible due to medical reasons.

Although the bill is analysed and criticized, it can be said that the introduction of the bill is itself laudable since it was need of the hour and with time as well as negotiation a perfect law would hopefully come to existence.

[1]Source: India- Surrogacy (Regulation) Bill 2016

UK-Surrogacy Arrangements Act 1985

South Africa- Children’s Act 2005

Russia- Art 51,52 Family code 1995:, Federal law on fundamentals of protection of Citizens’ health in Russian federation 2011.


ABOUT THE AUTHOR

Krupa Thakkar

KRUPA THAKKAR

Krupa Thakkar is currently pursuing BLS LLB from Government Law College, Mumbai. She is presently in her second year. Always eager to learn new things, she keeps herself updated with happenings around the world. Though not an extrovert, she makes sure that she performs the best whenever she is allotted any task.

Crime and Punishment

In the book of Genesis, Chapter 3, it is said that Adam and Eve were told by God not to eat the forbidden fruit. However, they were tempted by the serpent and did eat it. When God came and asked what happened, they said the devil tempted them, thus trying to put blame on the devil. This did not stop God from punishing them. The punishment in this book represents one of the earliest recorded punishments.

Punishment has since then become a part of human society, and it is one of the reasons the Law as we know it exists.

The Law in Uganda, for example, has a variety of punishments, the least severe of which are simple warnings and fines e.g. for first-time offenders in certain cases, and the most severe being the death sentence in crimes such as Murder.

There are a number of reasons for punishments including:

1. Deterrence: It is hoped that when a person knows what punishment he/she might suffer in case a crime is committed, such a person might think twice and be deterred from carrying out the crime.

2. Incapacitation: This basically involves doing something which prevents the criminal from doing the same crime by removing the said person from society. Examples include death sentence, imprisonment.

3. Rehabilitation: This usually involves steps taken to reform the criminal so that he/she learns not to do the said crime in future e.g. counseling.

4. Retribution: With punishment, it is hoped that when a victim sees the criminal suffer, then the victim will be less inclined to carry out personal revenge. It is partly for this reason that some countries allow people to even come around when a person is being executed.

5. Restitution: This aims to put the victim back at the same financial position he/she was before the crime occurred.

CRUCIFY HIM, CRUCIFY HIM AND WHAT JESUS’ TRIAL TEACHES US ABOUT MOB JUSTICE:

The Bible, in the book of Luke 23:14-25, speaks of how the trial of Jesus ended. In this verse, Pilate, finding no wrong with Jesus, was willing to have him released.

However, the mob kept demanding for his crucifixion through chants of Crucify him, crucify him. Bowing to their pressure, Pilate obliged and Jesus was crucified. This incident marks one of the earliest recorded incidents of mob justice.

Mob justice refers to the act of a group of people taking the law into their own hands to condemn and punish an alleged criminal and is very prevalent in Uganda today. In many cases, suspects are lynched then stoned, beaten to death, or burnt in car tires.

According to the Police crime report, mob justice is still one of the highest causes of unlawful deaths. In 2013, death by Mob Justice was recorded as the second highest cause of unlawful deaths in Uganda, after death by gun shootings.

Sadder still, not everyone killed in mob justice is guilty. If we recall, there was an incident where a young man at Makerere University was killed by a mob of students at one of the halls of residence, having been suspected of being a thief. It later turned out he was a former student, who had come to visit someone in the hall.

The constitution says that everyone is innocent until proven guilty, this means, people should be given a right to a fair trial before being condemned.

As we acttoday, let’s also learn that a given country can overcome this scourge of mob justice, and let the rule of law prevail worldwide.


ABOUT THE AUTHOR

JosephSemuju

JOSEPH SEMUJU

Joseph Semuju leads the programming team at Crossroads Digital Multimedia Limited. He is a native Ugandan and has worked for the Crossroads Digital Multimedia Limited as a 3D Computer Animator for the last two years. He received a Bachelor of Science in Computer Science with a second class – upper division from Makerere University. Joseph is someone who is constantly on a mission to keep things running smooth, fast, and in a more automated fashion. No tech question scares him; if he does not know the answer, he takes time to find it. He is detail oriented, thrive on efficiency, and ready to impact a positive change in Africa and the rest of the world through research, writing, and active citizenship.

Beware of the Hacker!

A friend was pissed off recently because he was informed by others of unusual posts from his Facebook account. He had been offline for sometime only to be called back with abnormal activity happening on his wall. A rant from him partly read as follows,

“Am sorry friends for all the posts on your walls in my name. Please know that am not responsible. Some fellow has hacked my account and is out to spoil my good name. Am fixing things and hope to find this fellow.”

Well, my friend was not the first one to have their Facebook account hacked. I had seen several complaints from different people, even from other social media platforms. Thing is, the culprits are in most cases never found and so, after the owners of the accounts have fixed things and changed their privacy settings, the incidents are soon forgotten and life goes on.

Hacking is just but one form of cyber crime, maybe the most common and yet the one that people mostly brush off as not being serious, despite the serious consequences that come with it. The definitions of cyber crime vary largely because of the vast forms it takes as well as the jurisdictions. However, what remains constant in those various definitions is the fact that the computer, computer system or internet is often involved either as a target or a medium of committing the crime.[1] In this blog post though, I will restrain myself to hacking as an offence and why any hacker out there should think twice before continuing with their acts.

A straight forward definition of hacking is the use of a computer to gain unauthorized access to data in a system. Norton classifies hacking as a type 1 cyber crime done where hackers take advantage of the flaws in a computer system to carry out a crime.[2] Hackers hack into computer databases for various reasons, including facilitation of identity theft to be able to commit other crimes, to defraud corporations or individuals as well as hacking government databases to expose state secrets.[3]

In the UK, hacking is an offence under the Computer Misuse Act of 1990. This is provided for by Section 1 of the Act which provides for unauthorized access to computer material, which hacking is part of. The Police and Justice Act of 2006 made some amendments to sections 1-3 of the Computer Misuse Act making the maximum sentence the offence of unauthorized access to computer material to be two years. The Indian Information Technology Act of 2000 under section 65 provides for 3 years imprisonment or a fine of up to 2 Iakhs or both for the offence of tampering with computer source documents which hacking is part of.

In the US, hackers are punished for their acts by a number of different crimes depending on the varying circumstances under which the crimes were committed as well as par the different computer crime statutes available. The penalties include imprisonment of between six months and twenty years depending on the statute under which one is found liable and the veracity of the crime as well as fines between $ 1000 to $15000 or both the prescribed fine and imprisonment.

Advances in technology coupled with increased internet use are some of the reasons hacking has become common across the globe. Criminals have thus realized that they need not be physically present at a place to commit whatever crimes they want and are thus hiding behind keyboards and doing so much mischief. Some do it for fun; just to show others how good they are with technology. This is why more and more governments have or are coming up with laws to curb hacking and protect themselves as well as their subjects from the acts of hackers.

Most forms of cyber crime, hacking included have a concept of being borderless, that is, they can be committed in a different country and the effects are felt in another country. With this concept may arise the problem of jurisdiction, especially so where one country lacks provisions on a form of cyber crime. This is the reason international and regional instruments such as the Budapest Convention and the African Union Convention on Cyber Security and Personal Data Protection encourage cooperation between states in the prosecution of cybercrimes and other computer related crimes.

It goes without saying therefore that you ought to take hacking seriously as an offence punishable under law just in case you were not. One may ask why it is an offence, and here is the reason. Hacking is a breach to key human rights such as the right to privacy and right to property because most of the information targeted by hackers is private and confidential which they use against their victims. Also, the property being violated does not belong to the hacker and hence hackers interfere with the real owner’s right to enjoy the ownership and use of their property.

[1] <https://cybercrime.org.za/definition> accessed on 9/3/2017

[2] <https://us.norton.com/cybercrime-definition > accessed on 9/3/2017

[3] <www.inbrief.co.uk/offences/hacking-of-computers/> accessed on 10/3/2017



ABOUT THE AUTHOR

PhotoGrid_1466586008860

DEBORAH MULEMIAH

Deborah Mulemiah is currently a postgraduate diploma in Law at the Kenya School of Law. Passionate about law and literature.

The Apetite Fight

In the year of 2015, there was a big controversy due to the sudden spurt of vigilantism in India; we decided to write about the issue of cow slaughtering, consumption, possession and transportation in India. Let me start this topic with a short story.

Teacher- ‘what is the most expensive thing in this country?’

Boy-‘beef’

Teacher- ‘why is that?’

Boy – ‘because it cost me my father’.

This was the story related to the case in Dadri district in UP where a man was lynched as he was consuming beef. There have been various other cases related to this issue such as when two Muslim women were thrashed by right-wing group on the suspicion of carrying beef at railway station in Madhya Pradesh or the flogging of a family of seven members belonging to Dalit family by gau rakshsaks in Gujarat. In the light of such eruption of cow vigilantism in India, we are taking a stress to learn about the laws of beef ban.

Cattle slaughter in India has always been a taboo subject as cows have always been given the traditional status as it is considered as one of the most respected creatures created by God in Hinduism. Article 48 of the Constitution of India mandates the state to prohibit the slaughter of cows and calves and other milch and draught cattle. On October 26, 2005, the Supreme Court of India, in a landmark judgement upheld the constitutional validity of anti-cow slaughter laws enacted by different state governments in India.

Article 48 of the Indian Constitution says that- ‘The state shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps to preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.’

However, cows are routinely shipped to states with lower or no requirement for slaughter, even though it is illegal in most states to ship animals across state borders to be slaughtered. Many illegal slaughterhouses operate in large cities such as Chennai or Mumbai. As of 2004, there were 3,600 legal and 36,000 illegal slaughterhouses in India. Efforts to close them down have, so far, been largely unsuccessful. In 2013, the state of Andhra Pradesh estimated that there were 3,100 illegal and 6 licensed slaughter houses in the state. India produced 3.463 million metric tons of beef in 2012, of which 1.963 million metric tons was consumed domestically and 1.680 million metric tons was exported. India ranks 5th in the world in beef production, 7th in domestic consumption and 1st in exporting.

There is vast difference in between the states regarding the laws governing the cattle slaughter. For example, in Jharkhand, the guilty might face imprison up to 10 years or a fine of 10,000 rupees whereas in West Bengal there are no restrictions regarding the slaughtering of the cow.

According to the preamble of the Indian Constitution, India is a secular state where every man is to treat the same in the eyes of the society and law irrespective of his name. According to article 25 of our Indian Constitution , every man has a right to practice and propagate his/her own religion as long as it does not affect the morals and peace of the society and the act done on banning beef is in controversy with this article. Violence of gau rakshaks or many such instances has a long lasting effect on the society and has become the main reason for disturbances such as riots etc.

Thus, all these facts and such violence leads us to one decision, we as Indian citizens have to decide one thing, whether we want to live in a secular country where a man is lynched or dragged or beaten to death on the basis of what he is keeping in his fridge because that hurt someone’s sentiments or whether we want to live in a country where some people’s extreme religious practices leads to ruining lives.



ABOUT THE AUTHOR

IMG_20160404_155444

TANMAY SINHA

Tanmay Sinha is presently in his second semester in Symbiosis Law School, Hyderabad. He has always been interested in engaging himself in activities related to Law apart from academics, such as research papers, article writing etc. He has a passion for law and aims to excel in this field.