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

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.

 

The punishing hand of the court: Apex court upholds the constitutional validity of defamation as a criminal offence

This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

In 2014, the Supreme Court of India upheld the constitutional validity of section 499 of the Indian Penal Code (IPC), whereby defamation is touted a criminal offence. This judgment was in response to the petitions filed by Subramaniam Swamy, Rahul Gandhi and Rajdeep Sardesai. Interestingly, the judgment is remembered more for its vivid, obscure linguistic constructions, and less for its legal precedence, for the obvious reasons.

This judgment was given by the Hon’ble Justice Prafulla C. Pant, and Justice Dipak Misra, who by now (and in light of the recent judgment of making it mandatory to play national anthem in movie theatres), must be one of the most government-friendly justices in the history of Apex Court judges, with the exception of Justice Bhagwati in his ADM Jabalpur judgment.

Yet again, liberalism and freedom of speech had to take a backseat in an India where dissent is increasingly being curbed and blind obedience of the authority is sought after. Historically, in Lord Macaulay’s Penal Code, section 499 was inserted as a counterpart of the English offence of libel. However, with our legislature determined to imbibe the colonial hangover in its true sense, chose to retain it even seventy years of independence. Interestingly, English libel provided truth as a comlete defence, while the Indian law has put conditions on that defence. Only when the truth is used to further public good, the defence can be invoked. Now with the discretion of deciding what public good is left on the court, one can only imagine the effectiveness of this defence.

International stance on the law of defamation.

The International Covenant on Civil and Political Rights (ICCPR), recommends that restrictions to freedom of speech be strictly necessary and proportionate. India is a party to it, and in light of the same, the fact that a private wrong like defamation entails criminal liability stands in blatant violation of ICCPR[1].

In 2014, Amnesty International also made a representation to the Law Commission of India, regarding the widespread exploitation of journalists and curbing of media freedom. Also, the opinion of United Nations Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression, Frank La Rue becomes relevant. He coins a term called ‘judicial harassment’, whereby accused, charged under section 499, are kept for long time in custody, having an overall fettering effect on the freedom of speech and expression[2].

Many counties are recognizing the pointlessness of this particular piece of law. United Kingdom, from whom India had borrowed the law so joyously, have abolished it.

The Court’s view in Subramaniam Swamy vs. Union of India.

The judgment handed out has a vivid, obfusciating linguistic construction, and is rife with many, many loopholes. The Court rushed to hold that firstly, defamation was not merely a private wrong, but did not point out the manner in which the damage to one’s reputation by another becomes a public matter, and one that entails criminal liability.

Secondly, the Court also fixed a strict liability standard to the crime of defamation – one that has already been held unconstitutional by the 1995 judgment of R.Rajagopal vs. State of Tamil Nadu[3]. The Court also added a ‘public interest’ aspect to the restrictions to speech and expression, as given under Article 19(2). But this too, has been held unconstitutional in the case of Sakal Papers (P) Ltd. vs. Union of India[4], a judgment that went as back as 1962. However, if the judgment writing trend of Justice Dipak Misra is to be taken into account, precedents do not matter to him. So, this judgment, despite facing raging flak from law scholars, would persist in its glorious 268 pages.

[1]     Vrinda Vinayak, ‘Why The Supreme Court’s Ruling On Criminal Defamation Is An Insult To Free Speech'<http://www.huffingtonpost.in/vrinda-vinayak/why-the-supreme-courts-ruling-on-criminal-defamation-is-an-insu/> last accessed 21st December, 2016

[2]     Id

[3]     R. Rajagopal vs. State of Tamil Nadu, [1994] SCC 632

[4]     Sakal Papers (P) Ltd. vs. Union of India, [1962] SCR 3 842



The December book bucket

court-room-genius                    Learning the law.jpg                     legal-eagles

The curse of the objective reasonable man on criminal law in India

This article is written by Simran Bhinder. Simran is a fourth-year law student at O P JINDAL GLOBAL UNIVERSITY.

 

 

There are certain defining features of every legal document and every code of law. One of the major features of the Indian criminal justice system is the test of a Reasonable man within it. This mythical creation of legal theory is supposed to be a sensible, rational man who is objective and devoid of emotions.

This article is not simply a critique of the idea of a reasonable man but aims at bringing out the problems which the criminal law is facing today because of the absence of subjectivity. It is aimed at discussing the consequences of the “absences” of subjectivity, which are a result of the “presence” of the concept of the objective reasonable man in Indian criminal law.

OBSESSION WITH OBJECTIVITY

“EVERY CRIME IS INHERENTLY DIFFERENT”

This basic principle on which the entire science of criminology is based has never been recognised by the legal apparatus in India which is completely smitten and obsessed by the idea of objectivity. The law assumes that there is a common ground and a few common features that define every crime and on which every criminal activity takes place. This assumption gives rise to the numerous “objectivity tests” and “objective standards” that are present within the criminal law today.

For example, whenever it has to be decided whether or not the defence of grave and sudden provocation is applicable ( e.g. R vs TRAN ), both the subjective as well as an objective standard are applied and only then is it decided whether or not the act was grave and sudden enough. Something as personal and as individually different and variant as a particular person’s reaction to a certain act is also supposed to be according to the standards set by the mythical reasonable man who is obsessed with objectivity.

In GYARSIBAI vs STATE (AIR 1953 M.B. 61) the woman was held guilty of murdering her children because when subjected to the objective standards of reasonable behaviour the court found that her behaviour was irrational. However, it can be argued that the verdict could have been completely different had the subjective aspects the case been considered. While the objective standard views her as a woman, who after a fight with her sister in law decided to drown herself and her children the specific facts of this case point out that this woman, who was financially completely dependent on her husband, had been thrown out of her house along with her four young children by her sister in law, who had always been in a situation in which she exerted considerable influence on her husband. Thus even though the objective standard views her as a woman who murdered her children in cold blood , the subjective view would see her as a woman who , out of desperation and a valid apprehension of the future was forced to kill her own children.

Although it is important to have a certain set and uniform standards and guidelines which should be considered while deciding on cases , it is equally important to take into consideration the Unique facts, the situations and the conditions under which a crime takes place . The lack of objectivity can prove to be a major hindrance in the path of justice.

A major critique of the decision of the judiciary, to try one of the main perpetrators of the 2013 Delhi gang rape as a juvenile was this inability to subjectively view his crime, and take into consideration the facts of the situation. He had committed the crime only a few weeks before turning a legal adult. Yet he managed to escape the rightful consequences of the horrendous crime which he committed because of the almost mechanical working of the judiciary , which is obsessed with the idea of following the procedure and technicalities to such an extent  , that it often forgets to be just.

Despite all the problems that are stated above The Indian Penal code is still a very strong, relevant and far-sighted document that is, without any doubt, one of the most complex and well written criminal codes in the world. The basic problem with it remains that it was not updated and modified to suit the changing circumstances and needs of the changing times.

Also, it is important to bring out a social and moral consciousness amongst the judiciary in India. They need to be trained in a way in which they can base their judgements on legal rationale’s that are not only consistent with the law but which also uphold the Morden ideas of justice and equality.

The curse of the OBJECTIVE REASONABLE MAN can only be removed once all these issues are addressed and rectified.

Marital Rape in India

This article is written by Shreya Bansal. Shreya is a commerce graduate from Shri Ram College Of Commerce and is currently pursuing Bachelors Of Law from Faculty Of Law, DU.

 

In India marriage is considered as the sacred solemnization of a perpetual bond, not just between two individuals but between two families. Ever since a girl child is born in a household, her parents eagerly await for the day on which they can perform her “kanyadaan” which in literal sense means to give away the daughter as a form of charity.

Well, this brings light on the fact that our country is restrained by the shackles of a patriarchal mindset where a woman is given the second gender status and not considered as a counterpart. As per historical studies, a girl before her marriage was considered as a “property” of her father, post which she is transferred to her husband as her guardian which gives him the absolute right of control over his wife’s body and mind.

Behind the closed doors of many Indian households, women are subject to brutalities of their husbands. Marital rape is one such form of a barbaric activity which sadly is derecognized by the law of our country. Marital rape basically takes place when a husband either uses force or threatens to use force on his wife or takes her consent by coercion to have sex with her. So it means that marriage is a contract between these two individuals where the consent of the wife to bow in front of the whims and fancies of her husband is implied. An English judge from the 17th Century claimed:

Behind the closed doors of many Indian households, women are subject to brutalities of their husbands. Marital rape is one such form of a barbaric activity which sadly is derecognized by the law of our country. Marital rape basically takes place when a husband either uses force or threatens to use force on his wife or takes her consent by coercion to have sex with her. So it means that marriage is a contract between these two individuals where the consent of the wife to bow in front of the whims and fancies of her husband is implied. An English judge from the 17th Century claimed:

So, it means that marriage is a contract between these two individuals where the consent of the wife to bow in front of the whims and fancies of her husband is implied. An English judge from the 17th Century claimed:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”As per Section 375 of the Indian Penal Code (IPC), forced sex in marriages is considered as a crime only when the wife is below age 15. The law of our country does not admit a rape committed by a husband with his wife as a crime, thus discriminating on the basis of

As per Section 375 of the Indian Penal Code (IPC), forced sex in marriages is considered as a crime only when the wife is below age 15. The law of our country does not admit a rape committed by a husband with his wife as a crime, thus discriminating on the basis of marital status of the people.

A senior government official said in a written statement to India’s upper house of Parliament, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.” As per the lawmakers of our country, the reasons because of which marital rape is not considered a crime in India is due to prevailing illiteracy, poverty, religious beliefs, social customs etc. which do not restrain the western world where it has been criminalised.

Apart from the patriarchal form of the society in which we all live in, women also a have big role behind this laxity of the government for not criminalizing marital rape. Firstly, our Indian women are devoted wives who would not leave any stone unturned to make sure that their marriage works out. They are ready to face all the brutalities of their husbands for the sake of their children, parents, and the fear of the society.

Secondly, the concept of marital rape is still unknown in India. While some women are not aware of it and believe that it is their conjugal duty to have intercourse with their husbands whenever they demand so without having the right to say no. Also, some might use it as a weapon to avenge their husbands even for small and petty fights between them.

The remedies today available to a woman against marital rape include protection under The Domestic Violence Act, 2005 and Section 376B of IPC which states that a man can be jailed for 7 years if he rapes his wife during judicial separation. But both these laws are not sufficient enough to protect a woman against the monstrosity of her husband. Hence a new law needs to be enacted such that it should be able to exactly identify the marital rapist without faulty judgements. There should be minimum loopholes so that the actual criminal is punished and be held guilty.

Everything you need to know about the Law Of Sedition

Sedition, simply put, is any conduct or speech made that is intended to persuade others to oppose the State. The law of sedition was originally drafted by Thomas Macaulay but was only brought in India by the British to repress free speech during India’s struggle for independence. Presently, this law is read as Section 124A under the Indian Penal Code. As per the Code, ‘Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India’ shall be punished with life imprisonment.[1] Hence, the offence is considered grave in nature.

Essentially, this section requires:

  1. Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards, the Government of India.
  2. Such act or attempt may be done (i) by words, either spoken or written, or (ii) by signs, (iii) by visible representation.

To be called as an offence, what this section must have is the intention with which the language is used and what is rendered punishable by section 124-A of the penal code is the intentional attempt, successful or otherwise, the rouse as against Government the feelings enumerated in the section, a mere tendency in an act to promote such feelings is not sufficient to justify a conviction; in other words, the prosecution must bring home to the accused that his intention was as is described in the section itself.[2]

The latest example of the offence was seen when the Delhi Police arrested Kanhaiya Kumar, the President of the Jawaharlal Nehru University (JNU) Student’s Union, on the complaints of sedition as he allegedly raised anti-India slogans in a student rally. However, he was later released on an interim bail.

Interestingly, when the first amendment took effect in the Constitution, which included restrictions on the Fundamental Right of freedom of speech and expression through the addition of words “in interest of” and “public order”, Mr. Jawaharlal Nehru was of the opinion that the law of sedition should be declared unconstitutional. He had said, “…now so far as I am concerned [Section 124-A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons. The sooner we get rid of it the better.”

Thus, there has been ever rising conflict between Section 124-A and Article 19 (1) (a). This dispute came to an end in 1962 where the issue before the court was whether Section 124A was violative of Article 19(1)(a) relating to freedom of speech and expression.[3] The Supreme Court held the offence to be constitutionally valid. Such actions would be penal as long as the matters related to the intent or tendency to induce public disorder or violence.

There is no denying the fact that Section 124-A has been misused by the law enforcement agencies. There is a reason why sedition has lost its potency and that is because this was a colonial law introduced to suppress the opinion and expression which ought to be raised. However, with the changes the State has gone through, a change is also required in this law.

Yes, national security is our priority and therefore Section 124-A is protected by the reasonable restrictions but mere usage of words or actions cannot suffice the intent to influence an educated society against the State. The question of the hour is “Do we require a law which was only introduced to ultimately contain the voice of the people who had the courage to speak and change the future of India?”

The answer, in my opinion, shall be unanimous.

 

[1] The Indian Penal Code, 1960

[2] Satyaranjan Bakshi v. Emperor (AIR 1927 Cal 698)

[3] Kedar Nath Singh vs State Of Bihar 1962 AIR 955

 

 

AUTHOR

Srishti Gupta

Misuse of Section 498- A of Indian Penal Code: The Plight of Husbands and In-laws in India, What is the Solution?

Marriage of a daughter is very essential and inevitable in Indian society that the parents are put under extreme pressure to meet any feasible demand to get their daughters married. The practice of dowry popularly known as dahej or daj is a deep rooted in the Indian society.[1] The practice of dowry is not limited up to the marriage but it continues even after it which is the cause of various social evils. Dowry in itself is a practice which is the root cause of various social evils such as infliction of physical and mental cruelty on the brides for extraction of the dowry demands from her family. Taking into consideration the ill consequences of dowry and the high rates of dowry-related crimes in India, Section 498 A of the Indian Penal Code was introduced as an amendment in the Indian Penal Code of 1860 by Criminal Law Amendment Act, 1983. But in the last decade there have been cases where the women have misused this provision.

An observation and study over the misuse of dowry law was published in a reputed newspaper which stated that,

When a woman cries out foul, she isn’t always speaking up against the tyrannies of patriarchy. Sometimes, she is faking it, manipulating the law to cover up for her extortionist tactics.”[2]

The above statement, when applied and observed in recent cases, verifies to be true. The aim and the objective with which the provisions were introduced are misused vehemently by certain population of women, which in turn leads the woman in the actual tyranny into a disadvantageous position. A common observation has been established that women file a case over trivial fights and just for the sake of blackmailing the families.[3] If such fake cases are considered without taking due caution the intention with which the provision was enacted will lose its sanctity and will also bury the seeds in the society regarding the incapacity of the law and the presumption of the innocence of the women under this provision will be doubted, which will ultimately be disadvantageous to the women who are actually subjected to cruelty for meeting the demands of dowry.

The law is in place to protect the woman from the evils of dowry and it should be in place, giving away of this law will make women more vulnerable to the evils of dowry demands. Misuse of the provision has to be prevented and the women misusing these laws should be condemned, for which a law is needed, but what is more important is the conversation with the woman to extract the truth and a proper investigation to establish the demand of dowry and cruelty inflicted by the husband and his family. Due to the history of harassment of women and her family for meeting the dowry demands it is presumed that the statement given by the women while filing charges against her husband and in-laws is true, but since due to the misuse of provision it is important that the truth is established first before conviction of the husband and the in-laws accused under Section 498-A.

[1]Bert N Adams, Handbook of World Families, Sage Publications Inc.(California, UK), New Delhi, 2005. p.145.

[2]RadhikaOberoi, “How Fair is the Dowry Law?,” Times of India, Sep 8, 2008.

(Accessible at:http://timesofindia.indiatimes.com/city/delhi/How-fair-is-Dowry-Law/articleshow/3456467.cms) Last accessed on: 3rd Sept, 2016.

[3]Ibid

 

AUTHOR

Pooja Ogale