Criminal Law – The Law Blog

Prostitutes, Prostitution and Prostitution Laws in India

June 4, 2017June 4, 2017Posted in Criminal Law, Prostitution LawsTagged Prostitutes, ProstitutionLeave a comment

Think of a day when you wake up and look into the mirror, trying to look for the purpose of your existence, your identity, you know what you are, yet you try collecting every other thing that can mark your importance. Then it strikes to you, that your identity has become a corpse. You have been discarded from the group of persons holding the status of a person. To the society, you are no more respectable or someone to show gratitude for. You are alive with a dead inner self. You have been used again and again by others for their personal pleasure. You have become an aphrodisiac. Living yet dead, busy yet idle, crowded yet alone. Yet you confront it, live with it, every day – every night; because this is how you can make both ends meet. Knowingly or unknowingly you are stuck in a vicious circle about which all you know is that IT GOES ON!

“Stolen people, stolen dreams.”

This is the story of every girl, every woman, every lady who is brought into this business of prostitution, to satisfy the greed of some men, whose lust for sex and money never ends.

Prostitution means the sexual exploitation or abuse of person for commercial purposes and the expression prostitute shall be construed accordingly. It is one of the oldest and prevalent trades in India.

Prostitution is illegal in India and legal consequences can entail a prosecution, which may culminate in an imprisonment of up to 7 years. Although several debates on its legalisation are ongoing since time immemorial because due to its illegal status women who have entered this trade find it very hard to report abuse, which is very common.

Prostitution and related acts are governed by the Suppression of Immoral Traffic in Women and Girls Act 1956, the Immoral Trafficking Prevention Act, 1956, The statute primarily deals with sex-work in India and does not penalise prostitution or prostitutes per se. Although the act gives the power to punish acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex-work is not coerced.

Section 372 and 373 of the Indian Penal Code, also directly deal with prostitution.

Section 372 of the Indian Penal Code: Selling minor for the purposes of prostitution, etc.: Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be used or employed for the purpose of prostitution or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Section 373 of the Indian Penal Code: Buying minor for purpose of prostitution, etc. : Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with the intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful or immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

According to an estimate, there are around 2.8 million prostitutes in India living a life no less than dead. As if they are not women but a mere sex toy.

“Call a jack a jack, call a spade a spade. But always call a whore a lady.”[1]

[1]Patrick Rothfuss

ABOUT THE AUTHOR

AISHWARYA HIMANSHU SINGH

Aishwarya Himanshu Singh is a final year law student. An aspiring researcher who has a deep love for writing. With her first publication at the age of 13, she believes a pen is mightier than the sword. Having authored more than 50 papers she is all set for the ‘writing for a change’ programme.

Adequacy of Punishment in Rape Cases

May 25, 2017May 25, 2017Posted in Criminal LawTagged Crime, Punishment, RapeLeave a comment

Rape as defined by the Supreme Court in Bodhisattwa Gautam v. Ms. Shubhra Chakraborty[1] is not only a crime against the body of a woman (victim), it is a crime against the entire society. The Apex Court has further observed, “to many feminists and psychiatrists, rape is less a sexual offence than the act of aggression aimed at degrading and humiliating women”.

It is a crime against the basic human rights and also violates the victim’s most cherished fundamental right, namely the right to life as contained in Article 21[2] of the Indian Constitution.

One of the issues in system is that the rape laws do not, unfortunately, take care of the social aspect of the matter and are inapt in many respects. Furthermore, a large number of the rape cases remain unreported because of the social stigmas and pressures attached to the victim of rape and humiliation and mental torture which she and her family have to suffer during the court trial.

Scenario of Indian Society

In Indian system, it is considered that a crime is committed against the society not only against the victim. And, this is the sole ground for granting punishment to the accused, he is punished on the basis of impact that is formed on the society due to that offence. Felon is not punished on the basis of what consequences does the victim has faced or will face.

Due this concept society may get the justice but the victim often does not. If see towards the case of NIRBHAYA[3], the convicts got the death penalty and majority of the India is happy that finally the justice has been done to the victim. But, what kind of justice this is to the brave NIRBHAYA? She only suffered the pain and torturous acts of those culprits but she did not see them facing all such pains, tortures and humiliation which she faced on that BLACK day. Atleast the culprits must face and feel all that pain and humiliations which they made her to face.

Unfortunately, NIRBHAYA is just one of the numerous rape cases that fortunately got the media attention and due to this media attention got disposed off within 6 years (which is although a long time period but acceptable and fine if we see the Indian Judicial and political system with reference to other pending cases for example BILKISBANO[4] case). There are ‘n’ numbers of rape cases in which even FIR is not filed or even if it is filed then the mouth of the victim and her family shuts up or is made to shut up due to the fear of loss of reputation. Awarding of death penalty is fine in doing justice to the society but in my opinion the culprit must also get to face all those consequences and loss of reputation.

Mr. Justice S. Ratnavel Pandian of the Supreme Court in Madan Gopal Kakkad v. Naval Dubey & anr.[5] observed that, “offenders of the sexual assault who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms”.

This crime destroys the entire psychology of a woman and pushes her into deep emotional crises.[6] If nature of the crime is such, then why don’t we apply the principle of hedonism (i.e., utilitarian theory of pain and pleasure propounded by eminent Jurist Jermy Bentham) .Not only the principle of hedonism must be applied the culprit should be punished through the retributive methods of punishment so that he must feel and come across the similar pain and realise what he did to an innocent person (woman).

Role of Politics

Still, despite of making such legislation, Indian politicians often start their dirty politics and talk about the human rights, basic fundamental rights, needs of the family of culprits. And, try to fill their vote bank behind the curtain of sympathy for the victim and condemnation of the rapist (most often accused because in most cases they are left free) and offering a helping hand to the culprit and his family in the name of humanity and fundamental rights of felons!

[1] AIR 1996 SC 922

[2] ARTICLE 21- Protection of life & personal liberty- No person shall be deprived of his life and personal liberty except according to the procedure established by law

[3] Mukesh & Anr. v. State for NCT of Delhi & Ors. [CRIMINAL APPEAL NOS. 607-608 OF 2017]

[4] cr.appeal.1020to1023.09, 487.10, 194.11, 271.11

[5] 1992(3) SCC (204)

[6] Supra, at 1

ABOUT THE AUTHOR

TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.

Ethical Dilemma in Criminal Justice

May 20, 2017May 20, 2017Posted in Criminal LawTagged Criminal Justice, Ethical DilemmaLeave a comment

Ethical dilemma and questions arise for professionals in criminal Justice system concerning right and wrong which put the criminal justice officers to decide to choose being human or minding about their own self-interest. Criminal Justice system comprises of professionals who execute or who exercise power and some cases are authorised to use force and physical coercion which need to involve a great use of wisdom requiring not to take advantage of dilemmas which are pose by this powers to commits injustices. In most cases this powers provide and avenues for most of the dilemmas.

These dilemmas are brought more by the working condition. Where there is a very poor working condition for the criminal Justice officers, there exists more dilemmas as compare to those with good working conditions. So it has that those criminal justice officers in the underdeveloped nations face more dilemmas.

When an issue involves ethical consideration and then have the ability to apply a knowledge of ethics including ethical terminology and concept in making our decisions about what to do. It gives the mind the task of making critical decision which sometimes are matter of life and death. This dilemmas puzzles always brings war between interest of criminal Justice officers (law enforcement, prosecution and judiciary) and interest of common citizen who is seeking justice and his or her fate lies on the discretion of the criminal Justice officer. In most instances the wrong decision made by the criminal Justice officers adversely affect the common citizen seeking Justice.

Examples of these dilemmas:

Law enforcement officers in many case come across drug barons, because they lack enough money to satisfy their wants and needs they are always divided into two in reasoning where the drug barons accept to give them millions in reward of letting them free.in most case police have colluded with these drug barons to let the free which is great injustice to the society whose youths in turn find the drug at their disposal which ruins their life. These youth are then arrested for drug taking and handling while the same police officers who are arresting them are the one who let the drugs into the country. This total injustice because the same police office sometime are bribed with the youths to let free rather not to take them to the rehabilitation centre.

Similar situations may arise where a prosecutor because of the personal attitude which he ore has against the accuse maybe because of accused ethical background, religious and maybe past experience may decide to seek maximum penalty against an accused and if he or she seek maximum penalty the result may be that the accused death This is social injustice to the family members of the accused and also to the accused who is hanged to death because of personal attitude of the prosecutor who decided to seek for maximum penalty.

When politician and those who are so reach get involved in criminal activities they always go scot free because they justice by buying justice in expense to the common citizen who is the complainant in that caes because police investigators are underpaid and they need money they the money and do shoddy investigation and prosecutor present a week case because is paid and the judge deliberately decide not to take all evidence into consideration.

ABOUT THE AUTHOR

STEPHEN AMIMO MUGACHO

Stephen Amimo Mugacho is a young writer with a writing experience in various topics. He is a criminology professional with expertise in security and forensic investigation. He has a great understanding of the law for that is the basic in understanding if someone is a criminal and has committed any offence. He has just completed his first degree on 24^th April 2017 in BA. Criminology and Security Studies at Chuka University.

How the police gathers evidence

April 1, 2017April 1, 2017Posted in Criminal Law, Laws of UgandaTagged Crime, Procedure, UgandaLeave a comment

It is rather alarming that murders carried out by gunmen on motorcycles, our very usual BodaBoda’s, have become common further claiming the lives of people dear to us. Be that as it may, there is hope that the police as mandated to ensure safety, maintain law and order and also facilitate prosecution of criminals will do its job.
So, when murders are committed by criminals, what does the Police do?
On receipt of a complaint as to an attempted murder or actual murder having occurred, the officer in charge of the Criminal Investigation Department at the nearest police station, immediately gives instructions to the available investigating officers and a Scene of Crime officer to immediately go to the crime scene, condoned it and make necessary investigation and arrests where necessary.

The two categories of officers that are meant to appear at the scene of crime;

The Scene of Crime Officer or officers.
The Investigating Officer.

The Scene of crime officer (SOCO) is mandated to seal or cordon off the crime scene, mark items found at the crime scene such as bullet shells, any dead bodies, skid marks or any vehicle or motorbike, any murder weapons, and draw a sketch map of the crime scene, take photographs of the crime scene, The same officer obtains and seals off any form of exhibits or materials to be used investigating and prosecuting crime ,lastly the SOCO prepares a detailed report concerning the examined crime scene.

The Investigating officer works (IO) works hand in hand with the (SOCO) in the carrying a full blown investigation that is to collect and store any exhibits, attain information from any available witnesses by recording witness statement, making arrests of any identified suspects, ensures medical examinations and post-mortem examinations are carried out by certified doctors and reports made. The investigating officer compiles a police file that contains documents including witness statements, exhibit slips, a scene of crimes report and sketch as drawn, photographs, post-mortem reports, forensic reports and charge sheet where any suspects are arrested and charged.
The police file is forwarded to a resident state attorney to make and guide prosecution of crimes for example by approving any charges as preferred against any suspects arrested and consequently have the suspects taken to court for prosecution of offences.

FORMAL STEPS OF A CRIMINAL TRIAL AND PROSECUTION;

Charging and arrest of suspects,
Where the offence is of a capital nature (this means the punishment for it is death) the suspects are presented before a Chief Magistrate for committal to the High court,
The High Court receives the court file and an indictment of the accused,
The High Court appoints assessors to be part of a trial of any accused people.
Arraignment of the accused. The accused take plea as to the charges and indictment read out to them. (PLEAS: a plea of guilty, not guilty, previous conviction or acquittal and a plea of pardon).
Where the accused plead not guilty the court sets the case for hearing where the prosecution is tasked to prove beyond reasonable doubt that the accused committed the offences.
The prosecution introduces and examines its witnesses.
The prosecution witnesses are cross-examined by the Defense counsel and representatives of the accused.
The court calls upon the accused or his advocate to make a submission on a no case to answer.
The court makes a ruling as to whether the prosecution established any case against the accused, where it is found that there is no case to answer made the accused is acquitted. Where the court rules that there is a case to answer then the accused will be called to raise a defense upon which he or she is charged.
The accused may call witnesses who are to be examined by the defense and cross examined by the prosecution.
The seating Judge sums up all the details of the case to the assessors and await their opinion of what was presented and examined in the prosecution before court.
The seating Judge is to listen to the opinion and findings of the assessors to guide the making of a judgment however he or she is not bound by their opinion.
The judge is to pass judgment in regards the indictment, evidence, witness testimonies before court.

Lastly, where the accused is found guilty the judge is to use his or her discretion to pass a sentence upon the accused.

ABOUT THE AUTHOR

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.

Crime and Punishment

March 23, 2017March 23, 2017Posted in Criminal Law, Law BasicsTagged Crime, Justice, Punishment, Theories of PunishmentLeave a comment

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

JOSEPH SEMUJU

Criminal Defamation – An examination

March 17, 2017March 12, 2017Posted in Criminal LawTagged Criminal Defamation, DefamationLeave a comment

In many countries, defamation is considered as both a civil wrong as well as a criminal wrong. In other words, if a person commits the wrong of defamation, he can either be sued for compensation by the person affected or can be criminally prosecuted by state for his act, article 19 of the Indian Constitution campaigns against criminal defamation as it is a disproportionate punishment and has an adverse effect on freedom of speech and expression.

Criminal defamation is defined under IPC section 499 and 500-

Section 499 of the IPC defines – ‘Defamation- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputations concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, expect in the case hereinafter expected, to defame that person.’

Section 500 of the IPC defines- ‘Punishment for defamation- Whoever, defames another shall be punished with a simple imprisonment for a term which may extend up to two years, or with fine, or with both’.

Criminal defamation laws are problematic as they are regularly in conflict with the freedom of speech and expression. It can lead to serious punishments or imposition of harsh sanctions such as prison sentence, hefty fines etc. Even if criminal defamation is applied with restraint, it can still cast a long shadow on the person accused, this can cause a restraint in free speech, and for example, the threat of being in detention or being criminally prosecuted will always be there in the mind of any journalist or any other person if he/she comes forward to expose any scams, or any form of corruption etc. The threat of being harassed will always be there in the mind of such person. This is not to say that defamation should not be discouraged but it must be kept as a civil violation and with accordance of the necessity test, the means used to discourage it should be carefully targeted for the prevention of dampening of legitimate criticism.

International bodies such United Nations or the OSCE have recognised the threats imposed by criminal defamation laws and has further stated that this will leave an adverse effect on the freedom of speech and expression and have recommended that such laws must be abolished. For example, the OSCE parliamentary assembly has called for abolition of all laws that provide criminal penalties for defamation of public figures or which penalise defamation of state or state organ. The UN, OSCE and OAS Special Mandates have stated that “Criminal defamation is not a justifiable restriction on the freedom of speech and expression; all criminal defamation laws should be abolished and replaced, wherever necessary, with appropriate civil defamation laws”.

Article 19 of the Indian Constitution argues that criminal defamation is restriction on freedom of expression, however, it is seen that many countries like India is following this law and it wouldn’t be repealed in the very near future, thus some interim measures are suggested until they are abolished

None shall be prosecuted for criminal defamation until and unless it has been proven beyond a reasonable doubt that there was the presence of element of offence, as set out below:-
The offence of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intention to cause harm to the party claiming to be defamed;
Public officials must take no action in the process of prosecution, no matter who the person who is defamed is.
Sentences or fines must be lenient with regard to the offence of criminal defamation.

It must be made sure by a country that it doesn’t restrict a person’s freedom of expression thus laws such as criminal defamation must be kept in check.

ABOUT THE AUTHOR

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.