Tag: Misuse of Law

Section 498A IPC – The Illusion of Misuse

Posted in Criminal Law, Women and childrenTagged , Leave a comment

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.

Misuse of Insolvency and Bankruptcy Code, 2016

Posted in Critical Analysis, Indian LawTagged , 1 Comment

Insolvency and Bankruptcy Code, 2016 (IBC, 2016 or referred as ‘Code’ in this article) is made with certain objectives which can be understood from the preamble of the code. It is rightly said that preamble is the key to open the minds of people who made it (it was mentioned in respect to constitution though)[1]. If the Preamble of IBC, 2016 is read in parts to understand the aims and objective of the code then some of them may be considered as mentioned below: –

  1. [To strengthen the reorganization and insolvency resolution of corporate person, partnership firms and individuals and amend the laws relating to it.
  2. Maximization of value of assets by following a time-bound procedure.
  3. To promote entrepreneurship.
  4. Availability of credit.
  5. Also, the interests of all stakeholders are taken into consideration and alterations have been done in priority of payment of dues.
  6. Establishment of Insolvency and Bankruptcy Board of India.][2]

The Code is divided into five parts where part II describes insolvency resolution and liquidation procedure for a corporate person. According to this, the insolvency petition can be filed by three categories of people- Operational Creditor, Financial Creditor, and Corporate Debtor himself, and then the further procedure follows. This whole mechanism is laid so that the companies which are in debt, pay it and if not possible to pay because of financial difficulties suffered, then insolvency procedure is initiated so that creditors do not suffer.

The real situation: – Creditors are given the right to file the insolvency petition with the intent that they do not suffer because of the inability of Corporate Debtor to pay the debt. But there have been several cases where Creditors file insolvency petition merely to recover their dues. This was the same case with the winding up petition. Statutory notice under section 433(e) of Companies Act, 1956 were to be issued followed by winding up petition filed if the same(notice) is not replied or defaulted amount was not paid. Winding up petition u/s 433(e) can be related to insolvency petition as both are filed when default in payment occurs.

It was in the case of Pawan Khaitan V. Rahul Commerce Private Limited that the Hon’ble High Court of Calcutta in Para 5 opined that “..the process of winding up could not be used as a tool for debt collection, it is not a debt collecting court.”[3]

Now, when analyzed with respect to the usage of Insolvency and Bankruptcy Code, 2016 out of the major applications filed, most of them are by creditors, operational and financial both, but for small amounts (in compare to debt recovery amount of banks) and only a few of them are by banks and other financial institution.

This also happens because the minimum amount of default is one lakh rupees.

Obviously, the courts/ NCLT adjudicate the matters on the basis of merit and then may admit, but Judiciary and all quasi-judicial bodies are already overburdened with cases and in that, petitions like this make it more difficult to adjudicate other important matters which may be required to be considered on a priority basis.

Conclusion:- To stop the misuse of the right given there should be certain set criteria to file a petition except for the monetary value of 1 lakh rupees.[4] Also, when the central Government has right to set the minimum value by the issue of notification in the official gazette then the appropriate amount should be set so that people do not use the Code and the machinery therein to recover their debt.

[1] In Re Berubari v. Union of India, AIR 1960 SC 845

[2] Preamble, The Insolvency and Bankruptcy Code, 2016-An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.

[3] [2015]190 CompCase236 (cal)

[4] Section 4, Insolvency and Bankruptcy Code, 2016- (1) This Part shall apply to matters relating to the insolvency and liquidation of corporate debtors where the minimum amount of the default is one lakh rupees:
Provided that the Central Government may, by notification, specify the minimum amount of default of higher value which shall not be more than one crore.

ABOUT THE AUTHOR

Headshot

MANSI CHHAYA

Mansi is a law student from Unitedworld School of Law. She has always believed that life is about challenging oneself and living outside one’s comfort zone. Be it music or national level examinations, her focus has always been on trying to develop herself holistically. A consistent high performer and student of the year, she wishes to use her knowledge to ensure justice for people who deserve it.

Everything you need to know about the Law Of Sedition

Posted in Criminal Law, Debatable topics, UncategorizedTagged , Leave a comment

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?

Posted in Criminal Law, Dowry, Marriage and familyTagged , , , 1 Comment

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