Category: Criminal Law

Posted in Constitutional Law, Criminal Law

Analysing the Constitutionality of the Marital Rape Exception under IPC

Posted on by The Law Blog

While Indian rape laws have been amended several times, most notably after the infamous Tukaram v. State of Maharashtra,[1] and more recently after the Delhi gang-rape in 2012, one particularly contemptible colonial vestige has managed to survive these amendments. This is Exception 2 to Section 375 of the Indian Penal Code, often referred to as the marital rape exception.

It is pertinent to bear in mind at the outset that, in the recent past, there has been a significant shift in the attitude of the Supreme Court towards criminal provisions of law based on Victorian-era morality. The reading down of Section 377 as unconstitutional,[2] entirely striking down Section 497[3] bear testament to the current attitude of the Supreme Court, which is at stark odds with that displayed in the notorious Suresh Kumar Koushal v. Naz Foundation[4] in 2013. Indeed these cases quite clearly indicate that the marital rape exception, which is undoubtedly premised on Victorian morality,[5] is living on borrowed time, until challenged.

Through this article, I seek to argue that the marital rape exception is unconstitutional, since there is a clear violation of Article 14.

The Exception Vis-A-Vis Article 14 of the Constitution

Exception 2 to Section 375 of the Indian Penal Code states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[6] While non-consensual sexual intercourse by a man with a woman who is not his wife is rape, non-consensual sexual intercourse by a man with (a woman who is) his wife is not rape, due to the exception. Hence, the latter is not punishable under Section 375 of the Indian Penal Code. The exception thus creates a classification on the basis of marital status. Consequently, the exception must be tested on the touchstone on Article 14.

To pass the test of Article 14, the classification must be based on an intelligible differentia and must bear a rational nexus to a legitimate State objective. However, the exception fails all the requirements.

The basis of the classification, as mentioned earlier, is marital status. Thus, the question that needs to be answered is if marital status constitutes intelligible differentia, and bears a rational nexus to the objective of the Act, in the present context.

The law on this is clear: the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others.[7] Here, the married women form one group and the unmarried women form another. As noted earlier, the protection of Section 375 is not extended to the group of married women. The question to be answered now is whether the differentia of marital status is valid to deprive the protection of Section 375 to a class of women?

The offence of rape, under Section 375, belongs to Chapter XVI: Of Offences Affecting the Human Body. For any offence under this Chapter, marital status is not recognised as valid intelligible differentia. Section 304B,[8] which also belongs to the class of offences affecting the human body, explicitly rejects marital status as an intelligible differentia, and to the contrary, creates a presumption against the husband, subject to the fulfilment of certain criteria.

Similarly, there are no exceptions to Sections 354(A) to 354(D),[9] in favour of the husband. Section 377[10] also does not create an exception in favour of the husband. While it might be argued that Section 304(B) (and the related Section 498A) was introduced for a specific purpose, that is, to deter dowry deaths, and are hence outliers, no such claim can be raised in the context of the other sections of the Chapter.

Thus, the structure of the IPC does not permit marital status to be the basis of classification for any offence affecting human body, and the emergent norm is clear that whenever the question of the human body, the consideration of marital status is not relevant to deny the protection of criminal law to a class of persons. However, exception 2 to Section 375 is in contravention to this, inasmuch as it creates a classification based on marital status and accordingly, deprives the protection of law to a group of women, based on such classification. Thus, the classification is not based on valid intelligible differentia.

Further, even if the previous argument were not to find favour with one, it can be argued that objective sought to be achieved is illogical and thus, not a legitimate purpose. Under the current position of law, the objective invoked by the State shouldn’t be illogical, unfair and unjust.[11] In simpler terms, it should be a legitimate purpose. When in Independent Thought v. Union of India,[12] the exception was read down to exclude married women between the ages of 15 and 18 from its ambit, the State, though in vain, invoked the objective of “preservation of the institution of marriage,” to be the legitimate purpose behind the exception. The Court, in that instance, very explicitly rejected the avowed objective to be legitimate purpose, stating that “marriage is not institutional but personal in nature.” The Court then went to the extent of stating that “nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable”. The Court differed in its approach to the very characterisation of the nature of marriage. The Court, in contradistinction to the State’s characterisation of marriage, held that the nature of marriage is personal, thus precluding the state from ever successfully invoking the objective. Therefore, the argument that the exception is justified in its existence to preserve the institution of marriage falls flat in the preliminary stage itself, since the very premise of the avowed objective – that marriage is institutional in nature – has been rejected. Thus, the objective sought to be achieved is not a legitimate purpose.

Even if one were to assume otherwise and deem ‘preservation of the institution of marriage’ to be a logical and legitimate purpose, it still has to be proven that there exists a rational nexus between the classification and the objective. The law is clear that the classification must rest on a difference which bears a fair and just relation to the object sought to be achieved by the classification.[13] The final argument rests on the point that there exists no rational nexus to the objective. The state’s argument can be summarised thus: the criminalisation of non-consensual sexual intercourse would lead to the destruction of the institution of marriage. It is to be noted that the operative and the underlying logic of this argument is that the institution of marriage will be destroyed if a significant part, content, constituent, or purpose of the marriage is criminalised. In this particular instance, that significant part is sexual relations within a marriage, which, if criminalised would destroy the institution of marriage. Thus, in simpler terms, this argument holds that if sexual relations – albeit non-consensual – within a marriage– are criminalised, the institution of marriage will be destroyed since sexual relations are a significant part of the marriage. However, the more forceful argument is that the State’s argument is specious since the link drawn by the state’s argument between criminalisation and destruction of institution of marriage is untenable. The Supreme Court, in the case of Saroj Rani v. Sudarshan Kumar,[14] has rejected the premise of the previous argument – that sexual intercourse forms the summum bonum of marriage. The Court by holding that sexual relations between a husband and his wife do not constitute the whole content of a marriage, and that remaining aspects of matrimonial consortium can’t be said to be wholly unsubstantial or of trivial character puts to rest the state’s argument in this case. Further, it can also be argued that there is no fair and just relation in this case, since the exception clearly does not take into the account physical and emotional trauma caused to the wife due to the commission of rape, possibly even repeatedly. And thus, there exists no rational nexus to the objective sought to be achieved.

In light of the aforementioned, it is clear that the exception in question fails the reasonable classification test, and thus, is violative of Article 14 of the Constitution and unconstitutional.

[1] (1979) 2 SCC 143, <https://indiankanoon.org/doc/1092711/>

[2] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 <https://indiankanoon.org/doc/168671544/>

[3] Joseph Shine v. Union of India, (2019) 3 SCC 39, <https://indiankanoon.org/doc/42184625/>

[4] (2014) 1 SCC 1, < https://indiankanoon.org/doc/58730926/>

[5] Lelenya Weintraub Siegel, The Marital Rape Exemption: Evolution to Extinction, 43 CLEV ST. L. REV. 351 (1995) < https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1610&context=clevstlrev>; see also Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 LAW & SOCIAL INQUIRY No. 4 941, 948-954 (1995) < https://www.cambridge.org/core/journals/law-and-social-inquiry/article/sex-right-a-legal-history-of-the-marital-rape-exemption/15B4BC0F145FC41B6E53C25C69701FAE>

[6] §375, Indian Penal Code, No. 55, Indian Legislative Council, 1860, < https://indiankanoon.org/doc/623254/>

[7] Special Courts Bill, 1978, In Re, AIR 1979 SC 478, < https://indiankanoon.org/doc/1306191/>

[8] §304B, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://indiankanoon.org/doc/653797/>

[9] §§354A-354D, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://www.kaanoon.com/indian-law/ipc-354a/>

[10] §377, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://indiankanoon.org/doc/1836974/>

[11] Deepak Sibal v. Punjab University, (1989) 2 SCC 145, <https://indiankanoon.org/doc/1461661/>

[12] (2017) 10 SCC 800, < https://indiankanoon.org/doc/87705010/>

[13] Special Courts Bill, 1978, In Re, AIR 1979 SC 478, < https://indiankanoon.org/doc/1306191/>

[14] (1984) 4 SCC 90, < https://indiankanoon.org/doc/1382895/>

ABOUT THE AUTHOR

Maladi Pranay

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Maladi Pranay is a 2nd year law student, pursuing BA LLB (Hons.) at NALSAR University of Law, Hyderabad. He enjoys reading, and watching and playing cricket in his free time.

Posted in Constitutional Law, Criminal Law, Indian Law

What will prevail: The Fundamental Right to choose a Life Partner or Honour Killing?

Posted on by The Law Blog

The recent judgement by the Supreme Court in the case of Shakti Vahini vs Union of India comes with an air of finality on the proposition which has lingered over for long. The NGO had approached the court to seek remedy in cases of honour killings wherein the three-judge bench emphatically stated that the fundamental right to life and personal liberty includes right to choose a life partner and any attempts to scamper the marriage between two consenting adults is illegal. However, it is not the first time that the SC has upheld this perspective and therefore, the longevity of this judgement’s impact is an extremely grave concern.

It was in the case of Ravi Kumar vs State and ANR that the Delhi high court held the right of a person to choose his/her partner for the very first time. The next year, Lata Singh vs State of UP became a landmark decision by the Supreme Court. The court heavily berated the Khap panchayats for their brutal atrocities on couples marrying outside the caste or religion on their volition and categorically stated that right to life includes right to live without threats to life and right to personal liberty includes right to choose one’s partner. However, the decision did not prove very effective in curbing honour killings. Following the Lata Singh judgement was the 2012 verdict of Manoj Babli Honour Killing wherein, to create a deterrent effect, the accused were given death penalty (later commuted to life imprisonment). However, this “strict punishment” could still not create the desired deterrence. Following this, in 2014, the Delhi HC bench comprising of justices Gita Mittal and JR Midha deciding the Nitish Katara Honour killing case restated the fundamental right to choose a life partner. Later in 2017, Kerala High Court stated that “a major girl may opt for a criminal, convict, a person of different religion/caste to marry, court or anyone else can’t resist her choice”. But clearly, all these decisions by various courts could not eradicate the menace, the cases of honour killing have never ceased to come up regardless of all the judicial decrees. From the most contentious Nitish Katara murder case of 2002 that perfectly presented the deeply rooted false sense of pride irrespective of class to the Deepti Chikkara murder of 2012 or the most recent Athira murder case, just four days prior to the present verdict wherein the father stabbed his daughter after assuring police that he consented for the wedding to a lower caste man.

Belonging to a certain section of society is not an issue, the problem is restrictive and orthodox indoctrination of certain patriarchal principles that run throughout the nation.

It can be thereby gathered that judicial precedents alone cannot help resolve the crisis. The strong need for a legislation to curb honour killings has always been felt, however, the attempts at legislation seemed to lose track midway. The Law Commission in its 242nd report titled  “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” had proposed the draft bills:  The Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011 and The Endangerment Of Life And Liberty( Protection, Prosecution And Other Measures) Act, 2011 that mainly aimed to curb the brutality by the Khap panchayats. It set a threshold on the number of people who would gather to deliberate on the couple’s fate and ruled that any threat to the couple’s life by any means would be punishable with three to five years of imprisonment and a fine of rupees 30,000. This proposed legislation could not be formulated and implemented ever and the cases of honour killings continued to soar. In the present case, the central government submitted before the court that it has been engaging state and union territories to consider an amendment to IPC or to create the separate legislation recommended by the Law Commission.

Though this claim by the government seems promising, the extreme delay in considering the recommendations show how the government has paid no heed to this issue and trivialised it. the legislative vacuum in this issue has always cast a blow to judicial activism: for judgements alone cannot alter the mental block prevalent in a large section of society. It is high time to realise that the intended deterrent effect shall remain incomplete without a legislative backing.

Another facet of this entire issue is that enforcing judicial decrees and certain legislations, if they are implemented at all, is a typical Top-Down approach. Though having a solution in itself is a boon, attempts at curbing this menace through Bottom-Up approach might lead to better results. It is a well-known fact that the issue is the mental block among those set of people who have always regarded themselves above law and those who will definitely not be discouraged by a fine or punishment. For them, they are upholding their principles which, according to them, is no wrong. Therefore, sensitising these people about how a marriage outside the demarcations is not a sin that would morally corrupt the clan can be a good way to deal with this quandary. People should be given educative sessions at lower levels, the orthodox haute monde can be dealt with media campaigns working in reversing the indoctrinated superiority. Such initiatives, though difficult to implement, when coupled with a strict legislation would solve the problem at the grassroots level. By this judgement, the SC has done the maximum it could possibly do. after providing the directives to the government, all that is to be done is to formally make the law without much brainstorming. Still, the question that persists is and how long will the government actually take to formulate a solid law to protect couples from the wrath of honour killings? how much and how long will this judgement have an effect on the country or will this decision also will be forgotten for good?

ABOUT THE AUTHOR

Archita Prawasi

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Archita Prawasi is a first-year student pursuing B.A.LLB (Hons) from NALSAR University of Law, Hyderabad. She has a profound interest in reading up judicial developments, laws, articles. She likes reading critiques of judgements, government policies and analysing them through different perspectives. Her other interests include dancing, listening to music, Facebooking and procrastinating.

 

Posted in Criminal Law

A dismal setback to sec. 498A IPC

Posted on by The Law Blog

From time immemorial, married women in India have been defencelessly enduring cruelty and domestic violence at the hands of men. Cruelty against women was difficult to prove and to make it worse, there was no specific law aiming to safeguard women against such cruelty. It is not unfamiliar that crimes against women have been a barrier to the holistic development of the society.

Responding to the dire need of gender equality and curbing the menace of marital cruelty upon women due to the evil of dowry prevalent in our country, the Criminal Law (Second Amendment) Act, 1983 was enacted by the Indian Legislature which amended the Indian Penal Code, 1860 by inserting Section 498A, the Code of Criminal Procedure, 1973, the Hindu Marriage Act, 1955, the Indian evidence Act, 1872 (by inserting section 113-A into it) which has shifted the burden of proof to the accused and the Dowry Prohibition Act, 1961.

The section 498A of the Indian Penal Code, 1860 was introduced into the Indian criminal law system with an objective to prevent the menace of dowry death and cruelty inflicted upon women. This was a momentous change introduced in the Indian criminal law system intending to provide protection to the women as the offence of marital cruelty in India became cognizable, non-bailable and non-compoundable offence.

Section 498A is given under the heading, “Husband or relative of husband of a woman subjecting her to Cruelty.” Under this section, “cruelty” has been explained as (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Aiming towards the complete wellbeing of the married women, apart from physical cruelty, section 498A of the Indian Penal Code, 1860 has recognised ‘mental cruelty’ by husband or relatives of the husband as a psychological harm and made it a punishable offence.

Recently, in the name of preventing misuse of Sec. 498A, the guidelines laid down by the Honorable Supreme Court in Rajesh Sharma & Others vs. State of U.P. & Another, blatantly defeated the objective of sec. 498A IPC. It requires that every complaint under sec. 498A received by the Police or Magistrate shall be referred to a particular committee which shall have to submit its report within one month from the date of receipt of the complaint. Moreover, until the report is submitted, no arrest should be made. However, his judgement has undermined “mental cruelty” and it has been made clear that these directions will not apply to the offences involving tangible physical injuries or death of a woman.

The incidences of mental cruelty are no less harmful to any woman. Instead of taking action to prevent cruelty and save the life and dignity of a woman, the judgement instructs to take action only when the woman has been hit, thrashed, beaten up or killed. The Indian women are made to suffer to such an extent to get eligible for access to justice. During the one month period of enquiry to confirm the veracity of the facts of the complaint, the psychological cruelty may continue and even aggravate to harm of a serious nature including psychological depression or even suicidal tendencies in the victim women.

The ground reality regarding the implementation and effectiveness of the law provided under sec. 498A is quite dismal. According to the reports of National Crime Report Bureau, crimes against the female population in India have increased manifold in the recent time. The guideline of the Supreme Court in the above-mentioned case is regressive in nature and it has sabotaged the ongoing effort to bring about gender equality.

According to a report of the CHRI, the Police in India refuses to register complaints of sexual harassment and other crimes against women. It said that “the survey points to a significant proportion of unaddressed and unreported crime, signalling worrying levels of insecurity among the public, particularly women”.

Stringent implementation of the existing laws is required to curb crime against women because there is massive under-reporting of crime against women in India. The real concern for us should be the lower conviction rate for crime against women according to various official data. Guidelines should also be framed to encourage abused women to report crimes and fight her case till the end. The instruction to refrain from filing FIR until a thorough enquiry has been a big demotivating factor.

ABOUT THE AUTHOR

Shampa Chowdhury

Me 20170130_235941

She is a legal professional working in a Law Firm in Kolkata. She has a brief experience of content writing for a few Law portals. Currently, Shampa is pursuing a course on Cyber Law Practice, Information Technology and Social Media Law from NUJS.

 

Posted in Criminal Law

Drug laws in India

Posted on by The Law Blog

“Life is a precious gift, don’t waste it on drugs[1]“; “Say ‘no’ to drugs and ‘yes’ to life”; “drug abuse is life abuse”; “born free, live free”. These are some of the messages which are delivered by the by the Ministry of Welfare, Narcotics Control Bureau,[2] and every man of importance to the deluded youth of India.

As we live in the 21st century, nobody is oblivious to the term “drug”. So, what a drug is? A drug is a chemical substance associated with distinct physical and psychological effects. It alters a person’s normal bodily processes or functions. Well, in medical parlance, a drug is a substance prescribed by a physician for curing and preventing disease and ailment by its chemical nature.

But here, we are concerned about the definition of drug from the psychological and sociological contexts. In this context, a drug is a term for a habit-forming substance which directly affects the brain or nervous system. It is a chemical substance which affects bodily function, perception or consciousness which has the potential for misuse, and which may be harmful to the individual or the society.” The frequent use of drugs is considered so dangerous that at worse it can cause death. Most importantly it is also considered as immoral, anti-social and against laws of any country.

Drug abuse is the use of an illicit drug or misuse of legitimate drug resulting into physical or psychological harm. It includes smoking ganja or hashish, taking heroin or cocaine or LSD[3], injecting morphine. These are sometimes referred to as being ‘high on speed’ or ‘trip’ or ‘getting kicks.’ According to UN reports, one million heroin addicts are registered in India and unofficially there are five million. Punjab, Mizoram and Manipur are the three most top states in India to use drugs. Punjab accounted for almost half of the registered cases under the Narcotic Drugs and Psychotropic Substances Act in 2013. Cannabis, heroin and opium are the most frequently abused drugs in India.

India might suffer from critical issues like rape, corruption or bribery to deal with more than drug abuse. Still, in this height of globalization and urbanization, there are many states who have succumbed to drugs in order to live a “high life.” It’s just a matter of time that drug abuse might turn out to be one of the sensitive and concerned matters in our country.

The two major drug laws which can prevent the use of drugs are the Narcotic Drugs and Psychotropic Substances Act (1985) and the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act (1985). The Narcotic Drugs and Psychotropic Substances Act (NDPS) came into force on 14th November 1985 and amended in 1987 to tighten the noose around the traffickers. This Act was formulated[4] with the purpose of making drugs illegal and any person mishandling such substances would be given rigorous punishment as per the NDPS Act. One of the reasons behind NDPS Act coming into force is the international treaty the Single Convention on Narcotic Drugs which was drafted in 1961.

The NDPS Act 1985 mentioned the various narcotic drugs and psychotropic substances, the guidelines for using such substances judiciously, the Prevention, Regulation and Control of such substances and the powers of the Central and State Governments.  This Act also states the punishment which is the rigorous punishment of ten years and a fine of Rs. 1 lakh which may be extended to twenty years of rigorous punishment of Rs. 2 lakhs. In respect of repeat offences, the Act provides for a minimum punishment of 15 years imprisonment extendible up to 30 years and also a minimum fine of Rs. 1.5 lakh. The Act relates to drug addicts also. It lays down imprisonment of one year or fine or both for illegal possession for personal consumption of any narcotic drug or psychotropic substance.

It also empowers the court to release an addict for undergoing medical treatment from a hospital recognized by the government. This Act has been amended three times – in 1988, 2001 and 2014. Moreover, the 2014 amendment [5] mentioned a number of “essential narcotic drugs.” Another Act for the prevention of narcotic drugs is “The Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act” which was passed in the year 1966 by the Parliament of India. It was enabled for the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Drug abuse has become a growing threat to humanity. Drugs pose complex problems for law enforcement agencies, while drug traffickers and mafias play havoc with the social structure of our country by wielding enormous power with illegal wealth. Since 1991, June 26 is observed every year as International Day against Drug Abuse and Illicit Trafficking to create awareness among drug abusers as well as those who are engaged in waging war[6] against drugs.

[1] it is an illicit use of a chemical substance which is injurious to health.

[2] NCB is the nodal drug law enforcement and intelligence agency of India responsible for fighting drug trafficking and the abuse of illegal substances.

[3] A drug named lysergic acid diethylamide

[4] prepared in a concise or systematic way

[5] an addition to improve a piece of legislation

[6] Refer to section 121 of the Indian Penal Code, 1860

ABOUT THE AUTHOR

07

SOMANKA GHOSH

Somanka is a fifth-year law student pursuing BA LLB in Calcutta University. She’s also pursuing a diploma course in Entrepreneurship and Business Laws. After interning in various law firms in Calcutta High Court and gaining experiences about the practicalities of legal practice, she’s now keen to test her theories. An enthusiast and diligent worker, she’s also a good researcher and writer.

 

Posted in Criminal Law, Women and children

Pride and Dignity: Women at workplace

Posted on by The Law Blog

In the era of globalization, modernization, and rationalization, one thing which is most applauded about is women empowerment. International leaders, celebrities, politicians, youth, and even the laymen talk about the blurring gap between men and women and uplifting women, not only socially but politically as well as economically.  But the irony is, it is all loose talk in the air, because when the time comes to execute it practically, women are always portrayed as weaklings, needing male support at all times.

The esteemed workplace where she can prove herself itself becomes the place where her wings get clipped. The question which arises is, what stops her in her workplace to work efficiently? What stops her to work freely without fear? The answer is, unfortunately, SEXUAL HARASSMENT AT WORKPLACE. Statistics show seven out of ten women are sexually harassed at the workplace. Around ninety percent women are not aware how to deal with the situation or what can be done to stop it or is there any way out? Fortunately, the answer to all these questions is, YES! And the credit for such steps goes to the judiciary as well as the government of India. Now, what is needed is generating awareness among women as well as people regarding prevention of sexual harassment at workplace.

The Supreme court in Vishaka & others versus State of Rajasthan and others laid down guidelines directing that these guidelines would be strictly observed in all workplaces for enforcement of gender equality of women at the workplace.

The facts of the case were, there was a writ petition filed by some social activists with the aim of bringing the attention towards growing incidents of sexual harassment at workplace. It was aimed at preventing sexual harassment at workplace by laying down certain guidelines.

But the immediate cause for filing such petition was the gangrape of a social worker in a village in Rajasthan. It was contended that sexual harassment leads to violation of fundamental rights under Art. 14 (equality before law), Art. 15 (Prohibition of discrimination), and Art 21 (right to life and personal liberty) of a woman. But by laying down necessary directions court had endeavoured to ensure “A safe working environment to women”. The court even directed central as well as state governments to consider the appropriate legislation for the same.

The second step was the Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013 [SHW ACT]. The act defines sexual harassment as ANY Unwelcome sexually determined behaviour, and demands, from male employees at the workplace, which includes:

    • any physical contacts and advances
    • sexually coloured remarks
    • showing pornography
    • passing lewd comments or gestures
    • sexual demands.

It mandates all the employers to constitute an INTERNAL COMPLAINTS COMMITTEE [ICC] at each office or branch with ten or more employees and requires fifty percent should be women.  It requires time-bound redressal of complaints which should be confidential. It requires employers to conduct education and sensitization programs and provide a safe working environment.

The other initiative was Justice Verma committee; it recommended Employment Tribunal comprising two retired judges, two sociologists and a social activist to obviate the need of ICC which was not functioning as it was intended.

The latest and the most technically efficient initiative the government has launched is the SHE BOX (sexual harassment electronic box). Recently government launched an online platform, which will enable women employees to file complaints related to sexual harassment at workplace.

This online initiative seeks to ensure effective implementation of SHW act 2013. Once a complaint is submitted to the portal, it will be directly sent to the ICC of the concerned ministry or department.

The SHE BOX will cater effective and immediate and speedier remedy to women facing sexual harassment as well it will help the complainant to monitor the progress of the inquiry.

Currently, the complaint can be filed by central government employees only, which will later be extended to all. Under the vision of digital India program, it will help in achieving the goal of gender equality and women empowerment.

Barack Obama once quoted, “A country’s progress and future depend upon how we treat our women and girls”. Let us ensure that women can live their dreams, by ensuring a safe work environment at the workplace where they can work in par with their male counterparts with no obstacles coming in their way, and appreciation coming their way for achievements.

ABOUT THE AUTHOR

IMG-20170904-WA0046

DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Posted in Criminal Law, Women and children

Section 498A IPC – The Illusion of Misuse

Posted on by The Law Blog

In the matter of “Rajesh Sharma and Ors Vs. the State of Uttar Pradesh”, the Supreme Court on 27th July, said that there will not be a “normal arrest” of the accused without probing the veracity of the complaint. Previously, in a similar case of Arnesh Kumar Vs the State of Bihar in 2014, the Supreme Court, to protect the human rights of the “innocents”, had restrained the police to directly arrest the accused without proper investigation. Taking the purview of the misuse of the section 498-A of the Indian Penal Code, Supreme Court held that a “Family Welfare Committee” will be constituted by District Legal Services Authorities (DLSA) in every district and the complaints received by the police or magistrate will be referred to this committee. The members of this committee will be social workers, the wives of working officials, paralegal volunteers, social workers, and anyone who is willing and competent. The committee is supposed to submit a report of the case to an investigating officer within one month from the date of receipt of the complaint.

According to the data from National Crime Record Bureau (2015), out of all cases registered under section 498A of domestic and sexual violence, only fifteen percent have been reported in which the accused is convicted. This data to some extent shows the misuse of section 498-A by women. But the data does not provide a holistic picture because there may be different reasons for the acquittal of the accused like improper investigation by the investigating officer, some mid-way settlement, threatening the complainant or the witnesses, etc. So, the data itself is neither comprehensive nor conspicuous.

This move by the Supreme Court has been criticised by the women activists groups as containing an ingrained bias that women misuse the law. While according to the data by National Family Health Survey-3 fifty-three percent of the victims of some sort of sexual or physical violence have never gone to the police and out the forty-seven percent who have sought help of the police, only two percent have filed a First Information Report (FIR) while the remaining have just registered it as a Non-cognizable offence.

In this case, the Supreme Court has seen just one side of the coin while the other remains hidden beneath. This judgement also curtails the powers of the police and only after the review by the “Family Welfare Committee”, can police take any action. Thus, this also creates a virtual justice dispensation system.

The fact the entire process of a full one-month review of the case by the committee is also a problem for the victims of serious sexual or domestic violence. This will delay the justice delivery process and can even cause more sabotage. The victim could be pressurised to withdraw or threatened which again questions the very purpose for which section 498-A was added to the Indian Penal Code.

Also, the rate of conviction is low in nearly all the cases so Supreme Court must rethink considering the damage it would cause to the real victim. This judgement opens the scope of further misuse of the law if not by women, then men. As many are already sceptical of the effectiveness of the judgement, it may delve a victim into the labyrinth of a breakdown if justice is not provided at the appropriate time.

ABOUT THE AUTHOR

ashish lD

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.