A dismal setback to sec. 498A IPC

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

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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.

 

Drug laws in India

“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

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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.

 

Pride and Dignity: Women at workplace

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

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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.

Section 498A IPC – The Illusion of Misuse

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.

F.I.R. – What? How? If not, then what?

First Information Report[1], or more commonly known by its acronym, “F.I.R.”, is a tool of the criminal law in India which pushes the Police into action. So, what is this tool of the criminal justice system that initiates the criminal proceedings by pushing the Police into action?

In simple words, F.I.R. means a complaint. It is the first information that the police receives about the commission of an offence. However, there’s one element that should be fulfilled to be able to register an F.I.R., and i.e., the offence for which it is to be file should be a cognizable offence. Cognizable offence means an offence for which the Police may arrest a person, as per the First Schedule of the Criminal Procedure Code, 1973(Cr.P.C.) or as under any other law for the time being in force, without a warrant, like rioting[2], bribery[3], murder[4], dowry death[5], etc.

As soon as the Police receive the first information about the commission of a cognizable offence, they are bound to register the F.I.R. and investigate the said offence without any unreasonable delay. And it’s a simple process to register an F.I.R. How? Any person can, in accordance with the law for the time being in force, inform the police about the cognizable offence and, then, it is registered in by the Police by noting down all the information that they receive without any change, manipulations or any content deliberately left out. Once that is done, the Police are bound to read out the contents of the F.I.R. to the complainant. A copy of the F.I.R. is to be given to the complainant free of cost. So, F.I.R. is a very significant document which puts the Police in action. However, it should be noted that F.I.R. is not admissible as evidence in court because there are possibilities of the information recorded in the F.I.R. being false or made under coercion or influence. It can only be used as a reference.

But, there have been many instances whereby the Police have refused to file the F.I.R. or have manipulated the information in such a manner that the offence was made to look like a non-cognizable rather than a cognizable offence. Why? It’s because the productivity of the functioning of the Police in a particular jurisdiction was inferred as per the number of F.I.Rs. registered. If there were less number of F.I.Rs. registered that means less number of crimes in the concerned Police’s jurisdiction, which further meant that the Police of that jurisdiction was doing a good job. And if more number of F.I.Rs., then that means the Police was doing a bad job. For the purpose of the goodwill, the Police manipulated the F.I.R. on many instances. They even refused to register the F.I.R. for the same reasons.

Now the question is, “What do I do if the Police don’t register the F.I.R or if they manipulate it?” The answer to this question lies in Cr.P.C. Sec 154 of the Code states that if the Police refuse to register the F.I.R. in case of cognizable offences, then the person complaining may in writing and through post inform the Superintendent of Police or. If the Superintendent is satisfied that the information given by any person constitutes a cognizable offence, then, he may investigate the matter himself or direct an investigation to be made by any police officer subordinate to him.

Another remedy lies in our human rights. When the Police refuse to register an F.I.R., they deprive a person of justice in turn violating their human right to live a dignified life[6]. This violation occurs due to the Police inaction. Since it a human rights violation, the aggrieved person or anyone on such person’s behalf may approach the State Human Rights Commission set up in each state of India and file a case against the concerned Police for violating his/her human right due to Police inaction. And this process is completely free of cost, without any extra effort to be taken by the complainant. As once the complaint is filed in the State Human Rights Commission, the Commission will carry forward with the proceedings, with or without the complainant being present for the hearings.

Remember folks, if you face Police inaction at any stage, you will deprived of your human right of access to justice, and when that happens, do take further action. The laws in India have empowered us enough to hold the Police accountable for their lack of action. It’s just a matter of awareness. Now that you are aware, do take further action.

[1] Sec. 154 of the Criminal Procedure Code, 1973

[2] Sec. 147 of the Indian Penal Code, 1860

[3] Sec. 171-E of the Indian Penal Code, 1860

[4] Sec. 300 of the Indian Penal Code, 1860

[5] Sec. 304-B of the Indian Penal Code, 1860

[6] Art. 21 of the Indian Constitution


ABOUT THE AUTHOR

Headshot - Vidhya Kumarswamy

VIDHYA KUMARSWAMY

Vidhya Kumarswamy is a Law student pursuing B.B.A. LL.B. (Hons.), has a craving for knowledge and passionate about writing just as she’s a passionate foodie. Also, she’s a blogger and an Otaku.

Eye for an Eye, “Blinded by Revenge”

For many years, the death penalty issue has created controversial debates and even to date the debates still remain unabated. This is because justice has become a relative term and people term incidences that are contrary to their self-will and desires as injustice.[1]  Therefore, with that, the thirst for vengeance is so evident that states find it difficult to ignore;[2]  particularly because of the eye for an eye concept that has been upheld for so many centuries.

However, what people seem to forget is that two wrongs don’t make it right. Yes, the offender needs to be punished, but do we necessarily have to punish the offender by taking his/her own life? What about the rights of the accused, isn’t the law made to give others a second chance to reform and do what is right for their communities? Most of these questions may seem irrelevant to most people because they are so centred on vengeance, that they forget that everyone’s rights matters.  This concept has relatively been one of the top reasons why most countries still remain to retain the death penalty, slowly ignoring the corrosive effect it causes both to the offender and the community.

We have become so blinded by revenge, that we have forgotten our obligations as individuals, government entities, as well as members of a civil society; moreover forgetting the obligations entrusted upon us by International treaties, covenants such as the Universal Declaration of Human rights. These international laws were adopted in order to guide states in respecting individual rights and states signatory to such treaties are obligated to adopt these laws within their national Constitutions.

Retaining the death penalty goes far beyond than reducing crime. It causes trauma on the side of the accused, also creates tension between states particularly in situations where another state has abolished the death penalty; and above all, it infringes the most important fundamental rights, which are the rights to life and to liberty.

Therefore, it is important that normative edifices that guard against human rights violations adequately ensure that everyone’s fundamental rights are protected and respected because respecting individual rights and freedoms is the only way to inclusive development.

According to the World Economic Forum of 2015, development is very much possible, when individual rights and freedoms are respected; this also includes the rights of the offenders or the accused. Therefore, this should be a wakeup call to retentionist countries to outlaw death penalty and respect the rights of individuals.  The death penalty should be replaced with alternatives such as life imprisonment so as to reduce the cruelty imposed upon offenders.

To deny them human rights, is to challenge their humanity[3]. With that, I believe that the rights of each individual should be maintained regardless of their status or regardless of the situation they have imposed upon their fellow community members; rights do matter.

[1] K.N Bojosi, ‘Commentary on recent constitutional challenges to the death penalty  in Botswana http://www.biicl.org/files/2292_bojosi_ recent_constitutional_challenges.pdf (2015 September 20)

[2] O.B.Iveren, ‘Justification for and the abolition of capital punishment under human rights la, Nigeria(April 2011)   https://www.unilorin.edu.ng>law  (2015 September 30)

[3] Nelson Mandela quotes


ABOUT THE AUTHOR

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LESEGO GAETWESEPE

Lesego Gaetwesepe is a law graduate and she is intrinsically passionate about human rights, community building and empowering young people. She is a participant at the YALI Regional Leadership Center in Southern Africa and was also part of the #ageofconsent project. She was also part of a project facilitated by NACA (NATIONAL AIDS COORDINATING AGENCY). Ms Lesego is currently a volunteer at Gogontlejang Phaladi Pillar of Hope Project and also represents the organisation at the UNESCO Pan African Youth Network for building a Culture of Peace, and she is also taking up training as an ASFL (African Students for Liberty) Local Coordinator.