Category: Volume 1 Issue 1

RECENT AMENDMENTS IN SECTION-377 OF INDIAN PENAL CODE, 1860 – Nitesh Mahech

RECENT AMENDMENTS IN SECTION-377 OF INDIAN PENAL CODE, 1860
 

Author : Nitesh Mahech

Volume 1 Issue 1

ISSN : 2581-8465

ABSTRACT
 

The struggle against section 377 of the Indian Penal Code, 1860 is one of the historical significance in India. The 150-year-old law, which could impose as harsh a penalty as life imprisonment for violations, had been challenged by public interest litigation for a decade. The acceptance of the homosexual community and the development of laws regarding homosexuality has been a slow one and has started nearly two decades earlier. This research paper is concerned with the verdict of section 377 that has opened a window for the community to seek dignity in every sphere of life and the said dignity will lead to equality.

This research paper deals with the recent amendments of section-377[1] and the critical analysis of the landmark verdict of Navtej Singh Johar & Ors. v. Union of India as well as its comparison with the earlier judgments of Suresh Kumar Kaushal v. Naz Foundation and Naz Foundation v. Govt. Of NCT of Delhi along with various concerned reports and some other relevant case laws with respect to the LGBT Community. This paper includes the development of the social opinion regarding the homosexual community and their societal status. Following this, the paper concludes the impact of the verdict of section 377 of IPC with respect to LGBT Community in India.

INTRODUCTION
 

What is ‘Homosexuality’?

Homosexuality is a sexual orientation in which the person has the sexual attraction towards the same sex and those persons are commonly addressed as ‘gay’ or ‘lesbians’ in India. Further, LGBT community (lesbian, gay, bisexual and transgender community) is a broader term which includes persons with diverse sexual preferences and was used to substitute gay in reference to the LGBT community beginning in the mid-to-late 1980’s[2].

The harassment and discrimination of the lesbian, gay, bisexual and transgender community in India resulting from the continued existence of Section 377[3] that has affected the rights of that community which are expressly guaranteed and are an epitome of the vision of the great leaders who wished to create a country adorned with a society which valued the virtues of equity, fairness and non-discrimination. That we continue to follow a provision which dates back to the 19th century in the 21st century wherein the rights of citizens have reached a zenith unparalleled before, it seems highly absurd to continue with a provision which contradicts everything which the constitution stands for.

Rights guaranteed under the Constitution, including but not confined to the right to equality, the right to non-discrimination, the right to privacy, the right to life and liberty, and the right to health, all of which are essential for the survival and well being of humans. As has been expressly held by the nine-judge constitutional bench of the Hon’ble Supreme Court in the  KS Puttaswamy[4] judgment that Article-21 is inclusive of and protects the right to privacy under the right to life and liberty guaranteed by the same[5].

As has been reiterated and reported by various reports including the Ministry of Health and Family Welfare (in conjunction with the National Aids Control Organization) which has presented evidence and averred time and again that the continued existence of Section-377 is counter-productive to the efforts of HIV/AIDS prevention and treatment. It renders a large number of people susceptible to high-risk categories in relation to HIV/AIDS, who reluctant to come forward for treatment due to a fear of law enforcement agencies, and that in driving homosexuality underground it increases risky behaviour such as unprotected sex.

History of the Legislation

The primary issue with the penal provision of section-377 is that it criminalizes sex other than penile-vaginal. It was prescribed at common law in England in the Fleta, 1290 and later in the Britton, 1300 that sodomites should be burnt alive. It was later on penalized under the Buggery Act of 1533 which was again re-enacted by Queen Elizabeth I in 1563 under which it became the charter for subsequent criminalization of sodomy in the British Colonies but in 1817, oral-genital sexual acts were removed from the definition of buggery act. And in 1861, death penalty was formally abolished in England and Wales.

Nonetheless, sodomy or buggery remained as a crime under Indian Penal Code under section 377 which reads as follows:

“377. Unnatural Offences—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine[6].

Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

This particular section provides for the acts which come under “unnatural offences”  although the same text is not used in the section but used the expression “ carnal intercourse” which somehow different from the expression “sexual intercourse” used in the offences like rape. Subsequently, under Sexual Offences Act, 1967[7], English Law was reformed which decriminalized the act of sodomy above the age of 21 between consenting adults pursuant to the report of Wolfenden Committee which advising the Parliament to repeal laws penalizing homosexuality in 1957.

The ideology behind section-377 is settled by means of traditional, moral and ethical standards which confines the significance of sexual intercourse is for the purpose of procreation only which means non-procreation sexual activity is “against the order of nature” but it has no existence in our modern society. As criminalizing consensual same-sex conduct

taking place in private would serve as a weapon for police abuse, detaining and questioning, forced sex, harassment, extortion, the demand of hush money and significantly the discriminatory beliefs towards homosexuality. Therefore, the provisions of section-377 form a distinct category of vulnerable people in our society who are constantly affected and victimized.

Violation of Articles 14, 15 and 19 of the Constitution of India
 

The legislative objective under the provisions of section-377 has no rational nexus between the sexual conduct for both procreation and non-procreation purpose thus violative of Article-14[8] since it is based upon the stereotypes which have no place in modern society which renders arbitrariness and unreasonableness. The mandate of Article 14 is that like should be treated alike and that unlike should be treated differently. As a matter of fact, all persons are not alike or equal in all respects. Application of the same laws uniformly to all of them will, therefore, be inconsistent with the principle of equality. What section 377 does is that it creates a virtual barrier of sorts between people who have heterogeneous sexual proclivity against those people having a different idea as to their sexual orientation.

As Bhagwati J stated that the equality and non-arbitrariness in Article-14 require the principle of reasonableness and the procedure contemplated by Article-21 must answer the test of reasonableness for conformity with Article-14. It must not be arbitrary and must be right, just and fair, otherwise, it would satisfy the requirement of Artice-21.

Moreover, the right to non-discrimination on the ground of sex in Article 15 should not be read restrictively but should include “sexual orientation”. The criminalisation of homosexual activity by Section 377 discriminates on the grounds of sexual orientation and is therefore contrary to the Constitutional guarantee of non-discrimination under Article 15. Also, Article-15 provides the term “sex” which is not confined to “gender” only but also includes “sexual orientation” and therefore, it is implied in the said fundamental rights against discrimination that equality must be based on sexual orientation.

Hence, penalizing the homosexual conduct by means of section-377 is discriminatory on the grounds of sexual orientation and thus, violative of Article 15 also. The provision is inconsistent with the basic freedom guaranteed under Article 19 (1) (a) (b) (c) & (d), in that, the ability of an individual to make a personal statement about one’s sexual preferences, association and free to move so as to engage in homosexual conduct is restricted.

Violation of Article 21 of the Constitution
 

Article 21 of the constitution states that no person shall be deprived of his life and liberty except according to “procedure established by law”. There has been an extensive judicial discussion on the meaning of ‘life’ in various legal precedents. The expression “life” does not only limited to the physical act of breathing but also includes the right to live with human dignity, right to livelihood, right to health, right to pollution-free air, etc. The right to life is the fundamental one without which no person can live as a human being since it is the only article which has the widest possible interpretation and covers every standard for worth living. The rights like shelter, nourishment and growth are covered under the canopy of Article 21 and therefore, the basic necessities and requirements are equally crucial for every person.

In the landmark case of Kharak Singh v. State of Uttar Pradesh1[9], in which the Supreme Court quoted and held that:

“By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armoured leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”

Moreover, in Sunil Batra v. Delhi Administration[10], the Supreme Court reiterated with the approval the above observations and held that the “right to life” included the right to lead a healthy life so as to enjoy all faculties of the human body in their prime conditions. It would even include the right to protection of a person’s tradition, culture, heritage and all that gives

meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health.

Until the decision of the Supreme Court in Maneka Gandhi v. Union of India[11], a rather narrow and constricted meaning was given to the guarantee embodied in Article 21. But in Maneka Gandhi, a seven-Judge Bench decision, P.N Bhagwati, J. (as his Lordship then was) held that the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and give additional protection under Article 19. Any law interfering with the personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. Since none of the above is complied with, hence there is no doubt as for the fact that Section 377 of the Indian Penal Code is violative of the fundamental rights prescribed under the part-III of the constitution.

Article 21:- Right to Privacy and Dignity
 

It has been reiterated by various decisions that the right to privacy and the right to dignity are inherent aspects of the right to life envisaged under Article 21. It is humbly contended that the provision in question is an affront to both these aspects which are an inherent part of article 21.

Right to Privacy
 

Under the interpretation of right to life and human dignity, right to privacy is the implied which is an essential requisite for every citizen for having an intimate personal sphere concerning the claim of dignity on consensual sexual relations in private. Further, one’s sexual relations and preferences are the most crucial under privacy since it falls within an individual’s personality and at the core of “private space”. Also, the basic fundamental right to life has a damaging impact on homosexual community as it not only perpetuates social stigma but jeopardizing HIV/AIDS prevention efforts and therefore, rendering gay men increasingly vulnerable to contracting HIV/AIDS

Dignity
 

An important element of living a worthwhile life is the omnipresence of dignity without which the rights guaranteed by Article 21 falls flat on its face. Various precedents have dealt with the concept of dignity and held that the same is essential and has a variety of facets.

In Shabnam v. Union of India[12], it stated in the following terms:

“This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being ‘as a human being’. Another element, which needs to be highlighted, in the context of the present case, is that human dignity is infringed if a person’s life, physical or mental welfare is alarmed. It is in this sense of torture, humiliation, forced labour, etc. all infringe on human dignity. It is in this context many rights of the accused derive from his dignity as a human being”

In M Nagaraj v. Union of India[13], it was held that dignity to be intrinsic and inseparable from human existence. Dignity, the Court held, is not something which is conferred and which can be taken away because it is inalienable:

“The rights, liberties and freedoms of the individual are not only to be protected against the State, but they should also be facilitated by it… It is the duty of the State not only to protect human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give. It simply is. Every human being has  dignity by virtue of his existence…”

By denying the LGBTQ community an important aspect of their reality and existence perpetuated by a penalizing provision is a direct attack at their dignity which not only results in the community ostracizing such individuals and prosecuting them simply for their choices, denying the liberty to make choices just because a section of our society isn’t ready to accept a new paradigm change in relationships. Needless to say that the same is a scathing attack on the quality of life enjoyed by such individuals. Moreover, when a three-judge bench of this Hon’ble court decided to look into the constitutionality of section 377 despite the Suresh Kaushal[14] judgment is itself descriptive of the fact that there is indeed an issue which needs  to be adjudicated at the earliest as the stakes involve the very veracity of the constitutional provisions inserted by our founding fathers with the premise that the same would serve as a protection against the excesses of the state and enable citizens to live their lives a manner they deem fit.

THE 2018 JUDGEMENT OF NAVTEJ SINGH JOHAR CASE
 

Introduction

Navtej Singh Johar case is pathbreaking in its approach as it sets significant standards in jurisprudence, clarifies certain provisions and strengthens some of the pillars of our democracy.

On 6th September 2018, a five-judge bench i.e. Hon’ble Chief Justice Dipak Misra, Hon’ble Mr. Justice A.M. Khanwilkar, Hon’ble Dr. Justice D.Y. Chandrachud, Hon’ble Mr. Justice R.

F. Nariman and Hon’ble Mr. Justice Indu Malhotra of the Supreme Court pronounced judgment over the issue i.e. ‘constitutional validity of section 377’ in Navtej Singh Johar & Ors. v. Union of India[15] . The Hon’ble Apex Court held that penalising consensual homosexual activities is against the fundamental rights of a person and hence, is inconsistent with the Constitution of India. Therefore, the Apex Court decriminalised homosexual activities done with the consent of both the parties. Also, in the judgement, the Court concerned with the following aspects:-

1.         Constitutional Morality
 

The purpose of the Constitution of India is to transform society, not to preserve the pre-existing values of the majority because the majority may be heterosexuals who prefers  the sexual intercourse only between the opposite gender i.e., male and female that would be ‘social morality’ but to transform society, it is the ‘constitutional morality’ which must prevail.

2.         The miniscule Minority
 

Due to a “minuscule fraction of the country population” that belonged to LGBTQ Community, the Apex Court has previously upheld section 377 of the IPC in Suresh Kumar Koushal v.  Naz Foundation. Since the fundamentals rights are available to every person irrespective of their sexual orientation, it was said by Chief Justice Misra in Johar Case, that it is meaningless as how much the number of people asserting a fundamental right.

3.         Unreasonable Classification
 

The purpose of section 377 of IPC is to protect woman and children from being subjected to carnal intercourse did not bear a reasonable nexus with the classification of persons into those who have carnal intercourse against the order of nature and those who don’t. In this, it was held that where there is discrimination by the legislation on the ground of core trait of an individual person then it cannot be termed under the reasonable classification that is based on intelligible differential[16].

4.         Manifest Arbitrariness
 

It was found by all the judges that section 377 was manifestly arbitrary[17] as even after the 2013 amendment to the IPC, it was only concerned with the sexual acts between heterosexuals. Further, this section does not distinguish sexual intercourse between consenting and non-consenting competent adults which imposes a stigma on the members of

LGBTQ Community as procreation is not the sole aim in sexual intercourse and the section itself discriminates on the basis of sexual orientation.

5.         Progressive Interpretation of the Constitution
 

The Apex Court held in furtherance on the principle of progressive interpretation that the Constitution of India is a living and organic document which is capable of expansion with the change in needs, culture and the beliefs of the society, and hence, it is the duty of the courts  to make progressive and pragmatic interpretation of the law in order to ensure equality and justice in the society. Furthermore, the court was also of the opinion that the rule of courts increases when there is a case of rights of minorities in order to ensure the supremacy of law.

Submissions of the Petitioner
 

1.  In Navtej Johar case, it was submitted by the petitioners that being a homosexual, bisexual or having other sexual orientation is completely natural and reflective of the expression of choice and inclination on the consent of two persons.

2.  It was contended that sexual orientation of every member of the LGBTQ Community is not a physical or mental illness but a natural variation of expression.

3.  It was urged that attraction towards the same sex or opposite sex are both naturally same and normal but the difference is of the lesser ratio of same-sex attraction.

4.  Homosexuals require more protection than the heterosexuals for the purpose to achieve their full potential and to live freely without any fear or apprehension likewise a recognition of ‘Protection of Woman from Domestic Violence Act, 2005’[18].

5.  Moreover, it was submitted that the rights of the LGBTQ Community needs to be recognized and protected and sexual orientation is to be treated as an integral part of every individual’s identity.

6.  It was contended that the section 377 IPC is based on a foreign ideology which denotes societal values of the Victorian era.

7.  Further, it was contended that the Apex Court should protect constitutional morality over social morality.

8.  It was also contended that it is not yet defined the expression “carnal intercourse” and hence, it is being used arbitrarily and making the object of this provision inconsistent with the basic fundamentals of the Constitution.

9.  It was submitted that ‘sex’, under article 15 of the Constitution includes ‘sexual orientation’ as observed in the case of Justice K.S. Puttaswamy (Retd.) v. Union Of India[19]. Further, a person can be prosecuted under section 376(c) to 376(e) for the sexual acts done with an opposite gender without their consent whereas, the same acts are penalized u/s 377 if done with a partner of the same gender.

10.  Moreover, it was contended by the petitioners that the 172nd Law Commission Report

recommends deleting section 377 IPC.

11.  The petitioners submitted that the right to life and liberty of a citizen is a fundamental right under article 21 of the Constitution, as observed by the Apex Court in Kishore Samrite v. State of U.P[20] and Umesh Kumar v. State of Andhra Pradesh[21] which are arbitrarily curbed by section 377 IPC.

12.  Furthermore, the Apex Court also held that the reputation is protected by the constitution as it is individual’s personal security under the right to enjoyment of life and liberty.

13.  Lastly, it was contended that the LGBTQ+ community is deprived of its basic rights such as health education, public recognition because of constant terror in their minds due to the presence of this provision.

Submission of the Respondents
 

1.                  It was submitted by the respondents that it would be violative of the principle of natural justice if no opportunity is given to Union of India where it is allowing any issue other than the constitutional validity of section 377 IPC.

2.                 It was further submitted by the respondents that various provisions of the Constitution granted reliefs to the said community with issues pertaining to gender identity and sexual orientation.

3.                 It was also contended that any other relief cannot be granted to them and such prayers are abusive of privacy and personal liberty by transgressing the idea of public morality and dignity.

4.                 The respondents contended that in homosexuals, the percentage of prevalence of AIDS is much more than heterosexuals and thus, right to privacy may not be extended in order to enable people to indulge in unnatural offences and thereby contact AIDS.

5.                 It was further contended that if section 377 IPC is declared unconstitutional, then the bulwark of social culture that is the family system will be in a maelstrom.

6.                 Furthermore, it was contended by the petitioners’ argument that, “the status of homosexuals has changed in various parts of other countries”. This contention must not be considered since the cultural, economic and political heritage of those countries is quite different from that of India.

7.                 The respondents also contended that section 377 IPC is also applied to forced penal, non-vaginal sexual intercourse between adults so if it is struck down, then it would render the victims complaining of forced acts under such provision remediless.

8.                 It was also submitted that if same-sex adults are excluded from section 377 IPC then it would make a married woman remediless under IPC against her bisexual husband and his consenting male partner.

9.                 Moreover, it was submitted that in Fazal Rab Choudhary v State of Bihar[22], it was held that the offences under section 377 IPC imply sexual perversity. Furthermore, this Hon’ble Court also held that there should not be identical transplantation of western ideologies into our country in the case of Jagmohan v. State of U.P[23]

10.            The respondents also contended that the word ‘sexual orientation’ is alien to the Constitution of India, hence, if the word ‘sex’ is to be replaced with the word ‘sexual orientation’ under article 15, or a new term i.e. ‘sexual orientation’ is to be inserted under article 15, is a matter of Constitutional Amendment, which is the responsibility of the Legislature. Hence, Section 377 should not be considered to be in violation of Article 15 of the Constitution of India.

11.            It was further contended that penetration into non-sexual parts of the body under the concept of against the order of nature does not discriminate as it is based on biological reality which can never be unconstitutional.

12.            Furthermore, the respondent relied on the Apex Court’s decision in the Suresh Kumar Kaushal case[24], in which there is a presumption of the constitutionality of legislation and the court must adopt self-restraint and thereby refrain from giving birth to judicial

legislation and the legislative wisdom of the Parliament must be respected and it must be left to the Parliament to amend Section 377 IPC. Furthermore, in the case of Union of India v. Deoki Nandan Aggarwal[25] the court was of the opinion that it should not re-write, recast or reframe the legislation for any good reason to which it has  no power to legislate, and therefore, the courts cannot add words to a statute or read words into it which are not there.

Critical Analysis of the Judgment
 

1.  In the judgment, the ratio to the decision given by Justice R. F. Nariman, he quotes “The love that dare not speak its name” which describes that how the love exists between same-sex couples which were described by Lord Alfred Douglas, the lover of Oscar Wilde, in his poem two love, published in 1894 in Victorian England” but the same statement can fit duly in context to the cases of adultery or extramarital affairs, which is penalised under the law. Furthermore, in both these situations, both the offenders duly have the consent to the same but this does not make their act legitimate in the eyes of law. So, how does love between homosexuals make any difference? Furthermore, it is expected from the Hon’ble Court to keep aside the personal views and emotions and to interpret the law in its true sense.

2.  In the above judgment, two cases were cited: National Legal Services Authority v. UOI[26] – in which it was construed that gender identity and sexual orientation of an individual are an integral part of article 15 and 21 of the Constitution of India. Moreover, the court also referred to the case of Justice K. S. Puttaswamy (Retd.) v. Union of India[27] in which, the right to privacy was given a fundamental status under the ambit of Article 21 which enured in favour of all persons, as well as the right to make individual choices was found to be an integral part of a person’s way of living in which the state is ought not to interfere.

In context with the abovementioned cases, the term sexual orientation is an alien term and is nowhere mentioned under article 15 of the Constitution of India and  if the Apex Court deems it fine to insert the same under the ambit of article 15 of the Constitution, then the court must recommend the same to the legislature, since the

Constitution has vested the power of amendments to the legislature and not to the Judiciary. The same was also duly contended by the respondents. It is further contended that the ambit, scope and limitations to the right to privacy, as mentioned in the case of Justice K.S.Puttaswamy (Retd.) v. Union Of India  is yet to be determined. Since the right to privacy is not an absolute right, sexual activities within the same sex must not be treated in the light of the right to privacy.

3.  The status of homosexuality in different countries and views presented by different foreign courts form a part of the ratio of the judgement, however, the adoption of certain policies and theories in some foreign land must not be the sole purpose to determine the validity of certain legislation within the country. Moreover, the court also considered the 172nd Law Commission report which talks about deleting Section 377 IPC, it is to be noted that the 172nd Law Commission report, though, is of the belief of deleting section 377 IPC, it does not present the view of decriminalising same-gender Sex. Rather, it suggests serving each and every offense which is covered under the ambit of section 377 to be dealt with indigenous provisions.

4.  Justice Nariman, in ratio to his judgment, states that in the context of India, fundamental right to privacy would include at least the following three aspects:

o   “Privacy that involves the person i.e. when there is some invasion by the state, of a person’s rights related to his physical body.

o   Informational Privacy that does not deal with a person’s body, but rather a person’s mind.

o   The privacy of choice, which protects an individual’s autonomy over fundamental personal choices”

In light of the interpretation of privacy made by the Hon’ble justice Nariman, if all three principles are read together, it gives complete immunity to a citizen under the right to privacy. No limitations have been discussed by Justice Nariman, and if the interpretation of the right to privacy is done in the same way as interpreted by Justice Nariman, then, in that situation each and every law would stand to be an inconsistency with the Article 21 of the Constitution. Hence, it must be admitted that such interpretation of the right to privacy is incomplete and does not match the objective sought to be achieved under article 21 of the constitution of India.

5.  The Hon’ble Court also highlights the principle of “right to self-determination and individual autonomy”. In this regard, Justice Chandrachud gives ration over this principle and is of the opinion that human dignity is intrinsic to preserving the sanctity of life. He believes that “life is truly sanctified when it is lived with dignity” he further states that, “there should be no antagonism between the sanctity of human life and its dignity as well as quality. The quality of life ensures the dignity of living and dignity is a bit a process in realizing the sanctity of life”. The same is true and acceptable but the principle of self-determination cannot be relied upon since a person may change his sanctity again and again over a period of time, in the absence of the actual procedure of self-determination, and such principle, without the presence of a codified procedure, can be used arbitrarily. Hence, this principle cannot be relied upon, until complete guidelines are given by the Legislature over this principle.

CONCLUSION
 

After a long decade of time when the rights of LGBTQ+ community has given due consideration after 158 years of implementation of IPC and in furtherance of the same, the judgment of Navtej Singh Johar & Ors. v. Union of India[28] was passed as on 6th September 2018, decriminalizing section 377 of the IPC. But apart from that, there are other perspectives like the laws relating to such community are not yet defined providing a hindrance to their life. Also, there is no proper awareness regarding homosexuality in society. Further, the legislation must pass an amendment to section 377, making it clear, and removing any sort of ambiguity to such provision. Also, the legislature must pass special legislation, which would deal in rights, duties and remedies available to the LGBTQ+ community. Therefore, the verdict has turned out to be an effective step towards securing the rights of LGBTQ+ community but requires a social change too in the society.



[1] Section-377, Indian Penal Code, 1860.
[2] Acronyms, Initialisms & Abbreviations Dictionary, Volume 1, Part 1. Gale Research Co., 1985, ISSN 978-0-8103-0683-7. Factsheet five, Issues 32-36, Mike Gunderloy, 1989.
[3] Indian Penal code, 1860
[4] Writ Petition (Civil) No 494 of 2012.
[5] Ibid
[6] Section-377, Indian Penal Code, 1860
[7] Sexual offences act,1967
[8] Article 14, Constitution of India
[9] 1964 SCR (1) 332
[10] 1980 SCR (2) 557

 
[11] (1978) 1 SCC 248
[12] (2015) 6 SCC 702
[13] Writ Petition (civil) 61 of 2002

 
[14] CIVIL APPEAL NO.10972 OF 2013
[15] Navtej Singh Johar & Ors. v. Union of India WP(Crl.)No.76/2016
[16]  Malhotra J, paragraph 14.3, Navtej Singh Johar & Ors. v. Union of India
[17] Misra CJ, paragraph 239; Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9       in Navtej Singh Johar & Ors. v. Union of India

 
[18] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755
[19] (2017) 10 SCC 1
[20]( 2013) 2 SCC 398
[21]( 2013) 10 SCC 591
[22] (1982) 3 SCC 9
[23] (1973) 1 SCC 20
[24] Suresh Kumar Kaushal v Naz Foundation (2014) 1 SCC 1

 
[25] (1992) SUPP (1) SCC 323
[26] (2014) 5 SCC 438
[27] (2017) 10 SCC 1

 
[28] (2017) 10 SCC 1

 
[29] WP(Crl.)No.76/2016


[1] Section-377, Indian Penal Code, 1860.

[2] Acronyms, Initialisms & Abbreviations Dictionary, Volume 1, Part 1. Gale Research Co., 1985, ISSN 978-0-8103-0683-7. Factsheet five, Issues 32-36, Mike Gunderloy, 1989.

[3] Indian Penal code, 1860

[4] Writ Petition (Civil) No 494 of 2012

[5] Ibid

[6] Section-377, Indian Penal Code, 1860

[7] Sexual offences act,1967

[8] Article 14, Constitution of India

[9] 1964 SCR (1) 332

[10]1980 SCR (2) 557

[11]( 1978) 1 SCC 248

[12] (2015) 6 SCC 702

[13] Writ Petition (civil) 61 of 2002

[14] CIVIL APPEAL NO.10972 OF 2013

[15] Navtej Singh Johar & Ors. v. Union of India WP(Crl.)No.76/2016

[16] Malhotra J, paragraph 14.3, Navtej Singh Johar & Ors. v. Union of India

[17] Misra CJ, paragraph 239; Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9       in Navtej Singh Johar & Ors. v. Union of India

[18] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755

[19]( 2017) 10 SCC 1

[20] (2013) 2 SCC 398

[21] 2013) 10 SCC 591

[22] (1982) 3 SCC 9

[23] 1973) 1 SCC 20

[24] Suresh Kumar Kaushal v Naz Foundation (2014) 1 SCC 1

[25] (1992) SUPP (1) SCC 323

[26] (2014) 5 SCC 438

[27] (2017) 10 SCC 1

[28] WP(Crl.)No.76/2016

RECENT AMENDMENTS IN CRIMINAL LAWS: EFFECT – Kavya Jhawar

TOPIC:

RECENT AMENDMENTS IN CRIMINAL LAWS: EFFECT

AUTHOR : KAVYA JHAWAR

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

ABSTRACT:

  • The overall purpose of study is to highlight the effect of the Criminal law (Amendment) Act, 2013 and the effect of Criminal Law (Amendment) Act, 2018 on the society especially the offenders of such crime and the findings reveal that the crime despite being reduced by such amendment is increasing now and such amendments have not stopped the occurrence of the crime especially ‘Rape.’
  • The study goes further to show the instances which led the Parliament to frame the Criminal law (Amendment) Act, 2013 and the next Amendment Act of 2018.
  • The study reveals that in spite of such serious punishments being provided by the acts, this has not stopped the victim from committing the heinous crime of rape and the crime is occurring in more brutal form and manner.
  • The study also shows the reason behind such crimes increasing which is the lack of strict implementation of the law and that the Parliament is making various and innumerable law time and again but fails in the enforcement of the laws which are made and suggests the strict enforcement as a solution to reduce such crime. India has probably the best laws in the world owing to the manner in which they are framed but then they are useless if they cannot help the society to alleviate.

RECENT AMENDMENTS IN CRIMINAL LAWS: EFFECT

Criminal law in India! Ah, India, a country which is a mixture of heterogeneous masses spread over its territory; the way there is diversity amongst people similarly there are a lot of diverse laws- dealing with different subject matter in India which includes laws ranging from criminal and civil matters to the succession, inheritance etc. Laws are made on each and every subject and nothing is left out. Here we are going to focus on criminal laws and their effect on society.

In India, for the first time, criminal law was codified as early as 1860 when the Indian Penal code, 1860[1] came into force. This act is substantive and defines various acts which are to be considered a crime and thereby prescribes the punishment for the same. Since 1860 the society has undergone a vast change and hence there was a need to change and mould the law as per the societal conditions. Hence many amendments have been made in I.P.C. since then but the major amendment was the one of the year 2013 in which whole new amendment called the Criminal Law (Amendment) Act, 2013[2] was passed. This act was passed owing to the horrific Nirbhaya Rape case[3] which happened in December 2012 which shocked the entire nation. In this case, a 23-year-old girl was brutally raped by 5 persons (one of whom was a juvenile) in such a bad condition that her whole intestines were removed from her body and she died later on. Owing to such a horrific case, the parliament was compelled to pass the amendment act of 2013. It has included some major changes in this act. The major change brought by this act is that if a person commits rape and at that time he is between the age of 16- 18 years, he should be treated as a major and punished accordingly[4]. Justice Verma Committee[5] made some recommendations on laws relating to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, educational reforms and even recommended quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.

After passing the Criminal Law (Amendment) Act, 2013, it was thought that the whole of the ongoing rape crimes will either come to a halt or decline but even though passing of such an Act and increasing punishment, it has till now not stopped the offenders from committing such heinous crime and now such crimes are increased and are done more brutally. The recent example of this is the Kathua Rape case[6] which again shook the whole nation wherein a girl of 8 years was brutally raped in a temple by some 2-3 persons and thereafter killed by them. She was just 8 years old. After such an inhuman act, the President was compelled to pass an ordinance increasing the punishment for such crimes to a greater one which later on became an act. This act has punished the offenders severely even to the life imprisonment or death sentence in case rape is committed on a girl below 12 years of age or if she is subjected to gang rape in such a tender age[7].

 After passing this amendment of 2018, it was then expected that the rape crime will end in the society but then there comes another example of the recent Bihar Shelter home rape case[8] wherein the orphan girls were sexually assaulted and raped by the very owner therein. Day in and day out in the newspapers there are cases of rape being committed on a girl of 6 months to a lady of 80 years; we are heading towards a society wherein there are many many laws but no enforcement and this is compelling people to commit more and more crimes.

These laws with their severe punishment have not been able to instil fear in the minds of the individual. They think they can take the law in their hands and nothing will happen to them. The mindset of the people should be law governs the society and not the society governs the law.

The amendments in the criminal law were seriously been made to stop the ongoing crime which was taking a severe form but the major problem with India is we make a hell lot of laws on even a minute subject-matter but the implementation is left hanging and no one bothers to implement the laws seriously and sincerely. The people here are committing more crimes because they know the judicial process which takes a lot of time, which is very slow and they even are aware of the loopholes of law which ultimately passes the judgment in their favour due to the lack of evidence though the judge himself knows he is guilty nothing can be done. In our country like India, people feel if they have money and power, they can keep the law in their pocket and mould it accordingly as per their need. This mindset is a serious hindrance which is coming in the way of our development and the principle of fair justice because in such cases the poor and innocent suffer. We should adopt the principle of “LAW BEING SUPREME” in the strict sense.

Any amendment is useless if not implemented and hence we need to work in the direction of IMPLEMENTATION so that such amendments in criminal laws have a positive effect on society rather than the negative one.

People should feel-

“KANOON SABHI KE LIE BARABAR HAI”

“IN THE EYES OF LAW NOONE IS SUPREME”

[1] https://indiacode.nic.in/acts/1_Indian%20Penal%20Code,%201860.pdf

[2] http://harsamay.gov.in/PDF/The_Criminal_Law_(Amendment)_ACT_2013.pdf

[3] https://www.mid-day.com/articles/national-news-nirbhaya-rape-case-verdict-flashback-dark-night-of-december-16-2012-delhi/18226167

[4]http://harsamay.gov.in/PDF/The_Criminal_Law_(Amendment)_ACT_2013.pdf

[5] https://www.ndtv.com/cheat-sheet/recommendations-of-the-justice-verma-committee-10-point-cheat-sheet-511292

[6] https://www.hindustantimes.com/india-news/kathua-rape-victim-was-sexually-assaulted-died-of-asphyxia-doctors-tell-court/story-4nOgLfG4v65R6ZAPJA93UI.html

[7] https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf

[8] https://www.indiatoday.in/india/story/bihar-muzaffarpur-shelter-rape-case-timeline-1304200-2018-08-03

Adultery : Curse for Indian Society -Sahaj Karan Singh.

Adultery –Curse for Indian Society

Author: Sahaj Karan Singh

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

Abstract

Adultery is taken as a sexual morality violation since centuries. Adultery breaks ethos and morality of the Indian culture. As per the verdict of Supreme Court given on dated 27 Sept. 2018 for section 497 of IPC i.e. now adultery is not a criminal offence, it’s just ground for divorce under section 13(1) (i) of Hindu Marriage Act, 1955. The current scenario for adultery in India has to be associated which influence the ethical values for new generation. As the concept of adultery is now a ground of divorce i.e. grounded in the institution of marriage, it needs to be discussed strictly on the parameters of morality and moral stands of the Indian society. Marriage loses their essential value, and this in itself is enough of a reason to hold on to the value and ethics of monogamous relationships and label adultery as immoral.

It seems that society needs to remember that there is indeed something wrong with adultery. No society would accept that and adultery is certainly a moral crime and is thought-out a sin by almost all religions.

My research article emphasizes that an amendment is required in the context of punishment and filing petition, there should not be any gender inequality.

Introduction

A crime is a crime. If women can be punished for murder, theft and other offences then why not for adultery also? Time has come when this gross injustice perpetrated on men alone is rectified suitably and necessary amendments are made to section 497 IPC, so as to do away with the irregularities and in the interest of doctrine. Section 497 of Adultery states that Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor[1]. As per the verdict of Supreme Court given on dated 27 Sept. 2018 for section 497 of IPC i.e. now adultery is not a criminal offence, it’s just a ground for divorce under section 13(1) (i) of Hindu marriage act, 1955, which given open license to married couple for adulterous relationship.

Adulterous indulgences are a hard fact of social life the world over. In Indian social parlance, adultery manifests as a deeply ingrained and nearly inseparable figment of moral turpitude running parallel to the sanctified form of sexual union permissible within matrimony. Indian scenario, like adultery, in other words, is a “violation of marriage bed”. In the great epic “Ramayana” it was also concluded there that after the abduction of Sita by Ravana, Sita had to go

for “Agnipariksha” to prove her chastity, her purity. The dictionary defines ‘adultery’ as “voluntary sexual activity between a married man and someone other than her husband” and the term comes from the words “ad”(towards) and “alter”(other)[2]. Adultery is extramarital sex that is considered objectionable on social, religious, moral or legal grounds[3]. However, the feminists in India today said that the Indian law relating to adultery is premised on the outdated notion of “marriage”. The law, according to them, is not only based on the husband’s right to the fidelity of his “wife” but also treats “wife” merely as a chattel of her husband. Adultery is often seen as a breach of trust and of the commitment that had been made during the act of marriage[4]. Adultery may lead to ostracization from certain religious or social groups[5].

Research methodology

The methodology employed in this study is ‘Doctrinaire’ and includes the review of literature available from law journals, case law references, periodicals, library researches, books and the internet.

Research questions

  • Are not the women involved in adultery equal culprit? Is this a discrimination or not?
  • Does this concept of equality not apply in cases of adultery also?
  • What are the effects of adultery as per analysis with the reference of case laws?
  • Is this decriminalising of adultery encourages man and woman an open license to committee adultery?
  • In our country, it is assumed when the topic is ‘sex’ women are the victims. I ask why? Why we tend to think that they don’t do it for their own guilty pleasure but do it under pressure, under some obligation and is always somehow being victimized in this scenario?

Review of adultery law in other countries.

Though, Islamic countries like Afghanistan, Nigeria, Pakistan, Yemen, Sudan, Saudi Arab, and Iran have provisions for death penalty as the maximum punishment for adultery[6].  Countries governed by Islamic law, including Saudi Arabia, Pakistan and Somalia, all strictly prohibits zina, or “fornication outside marriage”. Prosecutions are common and punishment can include fines, arbitrary detention, imprisonment, flogging and in extreme cases, the death penalty[7].

In Pakistan, it has been criminalised by a law called zina ie extramarital or hudood ordinance which zina laid to 100 lashes for a fornicated up to 10 years[8].

According to Islam, adultery is a violation of marital contract. As per Sharia law to seek sex outside the limits set by God is a sin. Both would be charged under adultery[9].  Adultery is illegal in 20 states in the US, in 20 stated like Michigan, Idaho here prosecutions are rare and usually involved fine for adultery.

In regions of Iraq and Syria under ISIL, there have been reports of floggings as well as execution against people who engage in adultery. The method of execution was typically through stoning. ISIL would not merely oppose adultery but also oppose behaviour that from their point of view could lead to adultery, such as women not being covered, people of the opposite sex socializing with one another, or even female mannequins in store windows.

In Michigan adultery is punished by fine of 10 dollars as they will be taken under Michigan Penal code, 1931. In 2007 ruling made adultery first-degree criminal sexual conduct with the possibility of life in prison[10].

In New York and Utah, felony in Wisconsin. In South Carolina, the fine for adultery is up to

$500 and/or imprisonment for no more than one year (South Carolina code 16-15-60), and South Carolina divorce laws deny alimony to the adulterous spouse

Adultery is a crime in Taiwan under Taiwan’s criminal code – Article 239[11] and in the Philippines punishable under Article 333 of the Revised Penal Code. Adultery is punishable by imprisonment of Prison Correctional in its medium and maximum period (range of 2 years, 4 months and 1 day to 6 years imprisonment). Both your wife and her paramour shall be subjected to such punishment if found guilty[12].

In Scandinavia, in the 17th century, adultery and bigamy were subject to the death penalty, although few people were actually executed[13]. In the U.S. military, adultery is a potential court-martial offence [14]. [14] In the United ‘States’:’ Pennsylvania,’ it is punishable by 2 years of imprisonment or 18 of months ‘treatments for insanity[15].

Historical touch and scriptural teachings

The great law of Manu, adultery is a matter of consideration. Historically it was rigorously condemned and punished, usually as a violation of the husband’s rights.

In Judaism, married women engage in sexual intercourse with another man was concluded as adultery and both the man and woman were considered as guilty[16]. With the exception of the Kharijites, Islamic theological schools agreed that Muslims who committed grave sins, such as adultery, should not be banished from the fold of Islam[17].

The Hindu Sanskrit texts present a range of views on adultery, offering widely differing positions [18] [19] . The hymn 4.5.5 of the Rigveda calls adultery as pāpa (evil, sin)[20] [21]. Other Vedic texts, states Rick Talbott, state adultery to be a sin, just like murder, incest, anger, evil thoughts and trickery. In Rigveda mandala it was mentioned that adultery is a sin as stated “(You) pursuing (it) like brotherless maidens pursuing (men), (you) of evil ways like wives cheating (their) husbands, though being wicked, untruthful, untrue, you begot this deep track”[22]

Jesus Crist also stated that “Whoever looks at women to lust after her has committed adultery already within his heart”.

Thirukkural says a blemishless mind is the basis of all virtue; everything else is just an empty show (Kural 34 – Manathukkan maacilan aadhal anaitharan aakula neera pira). The word ‘Maacil’ in Kural 34 refers to the impurity of the mind, which has to be eschewed if one is to progress in virtue. Jesus Christ also highlighted this concept of purity of heart, when he said that a man who entertained in his mind lustful thoughts with reference to another woman is already guilty of adultery (Matt. 5:28).  Every one of us needs to cultivate the principles of ethical living in whatever we do. Ethical living needs no time or place (Kural 33 – Ollum vakaiyan aravinai ovate cellum vayellan ceyal). There are five precepts that representative of Buddhist ethics. They include one should refrain from taking life (all animails life) one should refrain expression of sexuality, fornication, adultery.

People also wonder if romantic relationships outside of marriage are permissible as long as there is no actual sexual intercourse. However, in Bible teachings, marriage is an exclusive romantic and sexual relationship between husband and wife. Jesus said: “You have heard that it was said, ‘Do not commit adultery.’ But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. (NIV, Matthew 5:27-28).

In Guru Granth Sahib ji also it was mentioned by Bhagat Beni Ji as stated ‘When lust springs up and mind is darkened, one embraces someone’s wife. In the glow of youth, one stares at somebody’s wives and does not recognize difference between good and evil. Drunk with sexual desires and other great sins, one goes astray and does not distinguish between vice and virtue.’ And also by Guru Arjun Dev Ji stated that ‘An adulterer may have all sorts of beautiful women, but still, he commits adultery in the homes of others. He does not distinguish between good and bad[23].’

Critical Analysis with case law references

Thus as adultery is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow whose husband consents to it or with his connivance. “The scope of adultery under the section is limited to adultery committed with married women, and the male offender alone has been made liable.

Hence as far as ‘adultery’ is concerned a case of adultery cannot be filed against women even if she is guilty of having been involved in the extramarital relation. A case under this section can only be filed against the male with whom she enters into such a relationship.

Apart from IPC, there is another penal legislation in India that regulates ‘Adultery’ in India. Ranbir Penal Code, 1932 especially applicable to the State of Jammu and Kashmir is one such legislation. It provides under S.497 for the punishment for the offence of adultery, it reads.

“Adultery: Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case the wife shall be punishable as an abettor.”[24]

According to gall up poll 91% of respondent believe that married men and women having an affair is morally wrong. Our ethics and religion talk panel weighted on whether sexting or sending explicit photos of oneself via text message, was akin to adultery. Adultery is viewed by law in many jurisdictions as an offence injurious to public moral and mistreatment of the marriage relationship.

The special treatment given to the women under cl. 3 of Article 15 should be restricted to such cases which must be related to some features or disability which are so peculiar that it differentiates women from men as a class[25].

In State of U.P. v Deoman it was stated that “the equality clauses in the Indian Constitution were framed on the basis of the American Constitution, so to ignore the background is like not only violating the basic norms of comparative Constitutional law but violating the basic principles of interpretation of the constitution[26].”

In Reed v Reed it was stated that The American Supreme Court has stated that where both the sexes are on equal footing and discriminations to particular sex as a class would be like denying the equal protection clause as enshrined in the constitution; – “the very kind of arbitrary legislative choice [is] forbidden by the Constitution.[27]

In Loretta LESLEY v. STATE of Mississippi. It was taken that The wife had extramarital affairs perhaps supports the prosecution’s assertion that she had a motive to kill her husband, but it does not prove that she in fact did kill him. Other evidence is necessary to prove the murder and the defendant’s culpability in the murder; the testimony about extramarital affairs only goes to prove the adultery[28].

In a number of cases, courts have accepted evidence of extramarital affairs as proof of motive in homicide cases,A famous example is that of navy commander KM Nanavati who shot dead businessman Prem Ahuja on April 27, 1959 for an illicit relationship with his wife Sylvia. While Nanavati faced prosecution, Sylvia went scot free.

In United States v. Russell upholding the admission of extramarital sexual affairs evidence, and opining that the prior bad acts exceptions “are not to be construed narrowly”[29]

In People v. Smith, “No rule is more firmly established than that, upon the trial for the murder of husband or wife, evidence tending to show illicit relations of the accused with another is admissible to show lack of love and affection for the defendant’s lawful spouse.”[30]

In Commonwealth v. Heller, ‘approving the use of evidence of adultery to show a motive for murder[31].[33]

In Cantrell v. Commonwealth, upholding the admission of sexual relationship evidence as “probative of a motive for the murder”. Even evidence of conduct subsequent to the murder may be admissible[32].

The figures range from a high of 70% of men and 50% of women cheating on their spouses to more conservative estimates that 25% of married men and 15% of married women have engaged in adultery. Bradford Bigler, Comment, Sexually Provoked: Recognizing Sexual Misrepresentation as Adequate Provocation stated that “adultery statistics are hotly debated,” noting a “relatively high incidence of marital infidelity,”[33]

Like any sexual contact, adultery may result in sexually transmitted diseases. Since most married couples do not routinely use barrier contraceptives, the cheating spouse is very likely to transmit any infection to their unwitting spouse. This is a form of physical victimization that extends beyond the emotional and social consequences often associated with adultery. It is still illegal in some jurisdictions, such as Wisconsin, where it is a felony. Muh. ammad ‘Al¯ı al-B¯ar added that homosexuality is the primary factor in the spread of AIDS in the USA, Canada, andWestern Europe where 70% or 80% of the HIV-positive people are homosexuals. On the other hand, adultery and fornication play a similar role in Africa and Thailand and also in India, where 70% of the prostitutes are HIV-positive. This percentage goes up to reach 80% and 90% among prostitutes in African countries such as Kenya and Angola.[34]

Now men will just abandon women or not give talaq. They wil have polygamy or nikah hallala which creates heel for women[35]. [37] De-criminalisation will result in adulterous relationships having a more free play and weakening sanctity of a marital bond. Sexual union between husband and wife is morally correct and legally acceptable by both society and law. Seeking solace outside marriage is tantamount to betrayal and breach of trust by whosoever solicits it and with whomsoever, be it a sex worker, married spouse of someone else or unmarried person of either sex, with or without consent of husband or wife of a person engaged in sexual union.[36]

Divorce is allowed on paying of fine of RS 50/- if the sought by the husband and RS25/- if the ask for it. Polygamy is forbidden,if women commit adultery, expelled from the caste and funeral feast is given to symbolise her death[37].

Honour killings are acts of violence, especially death committed by male members of the family against female family members, who are held to have brought dishonour to the family. A woman can be targeted by her family for a variety of reasons, including refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce even from an abusive husband and allegedly committing adultery[38]. [ In England the fifth wife of Henry VIII was beheaded based on the allegation of adultery. In British literature, Shakespeare’s Desdemona was killed on an allegation of infidelity and Romeo and Juliet tracked an ancient family feud over honour. King Aurther and the Knights of the Round Table centred on notion of honor.

The analysis also concluded that through adultery there are some other effects like triggers for Post-Traumatic Stress Disorder, ostracization from religious groups, suicide and in this context only child also suffers because of divorce and when one of them get custody if will be somehow difficult to give him wealthy life in every terms if they were not having wealth to fulfil their basic needs .

Government committee stands on adultery as a crime.

The Fifth Law Commission in its 42d Law Reports suggested that Section 497 should not be removed from the penal code, but it recommended that both the man and the woman should be made guilty as there is no valid justification “for not treating the guilty pair alike” and also scaled down the maximum punishment from five years to two years as the existing punishment is “unreal and not call for in any circumstances”[39].

Joint Select Committee

It suggested equal culpability of both the sexes for their promiscuous behaviour, but it was of the view that the old punishment of five years should be retained as it is.

Fourteenth Law Commission, 1997

The Fourteenth Law Commission, in its 156th Report on the Indian Penal Code, also suggested for the reformation of the criminal law of adultery as Joint Select Committee. Moreover, it also suggested that changes must be made in the relevant sections of CrPC also[40].

Justice Malimath Committee

Justice Malimath Committee in 2003 on reforms in the criminal justice system also recommended the recasting of Section 497 IPC to include women as offenders.

Article 1 of the universal declaration of human rights, 1948 declares that all are equal before the law and are entitled without any discrimination the equal protection of law[41].

Conclusion/Suggestion

Criminalising adultery is therefore indispensable for safeguarding institution of marriage. Merely calling it a breach of civil contract, which according to many a marriage is, will not suffice at the juncture[42].

An amendment is required and gender inequality shouldn’t be there. As in India, it’s a civil the offence now which is only ground of divorce, it should be criminalized too as without criminalization the rate of divorce will increase under Hindu marriage act and the conditions of monogamy will violate and moral ethics will leads to decrease in the present citizens and coming generations.

Adultery is brought under the ambit of criminal law. Criminal sanctions may be justified where there is a public element in the wrong such as offences against state security and the like. These are public wrong where the victim is not individual but the community as a whole.[43]

The institution of marriage was put in place in order to bestow moral and ethical sanctity to sexual union between a man and woman and to give children born out of it due to legality and legitimacy.

Striking down of sec. 497 will prove to be a deter mentally to be the intrinsic Indian ethos and will RIP the moral ethics so adultery should come again under penal code with an amendment regarding equality in filling petition and punishment.

Bibliography

https://www.tribuneindia.com/news/comment/adultery-needs-review-not-a-new-

definition/642199.html

https://www.britannica.com/topic/adultery
https://www.catholicculture.org/culture/library/view.cfm?recnum=6017
http://www.ilga.org/statehomophobia/LGBcriminallaws-Daniel_Ottoson.pdf
http://ieim.uqam.ca/IMG/pdf/etude-de-cas-hotte-king.pdf

www.theweek.co.uk/62723

https://www.dawn.com/news/626858/the-hudood-ordinances

https://www.legislature.mi.gov/(S(ekmll5t22j1hnx3tqakdvro0))/mileg.aspx?page=getobject &objectName=mcl-750-30

http://articles.southbendtribune.com/2007-01-20/news/26772017_1_sexual-assault-charge-oxycontin-csc

https://en.wikipedia.org/wiki/Revised_Penal_Code_of_the_Philippines https://ndvlaw.com/how-to-sue-your-wife-for-adultery-in-the-philippines/ https://books.google.com.hk/books?id=Ad0_J6T-YDQC&redir_esc=y https://www.thebalancecareers.com/adultery-in-the-military-3354158

http://www.indianjournals.com/ijor.aspx?target=ijor:ijmtlm&volume=10&issue=2&article

=008

https://www.cilecenter.org/en/wp-content/uploads/2014/11/AIDS-Ghaly.pdf

https://books.google.com.hk/books?id=pi7xAWStawYC&pg=PA161&redir_esc=y#v=onepa ge&q&f=false

https://books.google.com.hk/books?id=e7QQAQAAIAAJ&redir_esc=y https://books.google.com.hk/books?id=fgzVAwAAQBAJ&redir_esc=y

https://books.google.com.hk/books?id=6XNLAwAAQBAJ&pg=PA75&redir_esc=y#v=one page&q&f=false

www.stormwind.com/common/buddhism.html,2000

https://www.christianbiblereference.org/faq_adultery.htm
https://caselaw.findlaw.com/va-court-of-appeals/1709218.html
https://law.justia.com/cases/pennsylvania/supreme-court/1952/369-pa-457-0.html
https://supreme.justia.com/cases/federal/us/411/423/
https://law.justia.com/cases/mississippi/supreme-court/1992/89-ka-893-1.html
https://www.sikhnet.com/news/lust
https://law.justia.com/cases/california/supreme-court/2d/63/779.html
http://lawcommissionofindia.nic.in/1-50/Report42.pdf
https://www.hrw.org/tag/violence-against-women
https://indiankanoon.org/doc/481284/
https://www.law.cornell.edu/supremecourt/text/404/71
http://www.claiminghumanrights.org/udhr_article_1.html#at2
https://www.cilecenter.org/en/wp-content/uploads/2014/11/AIDS-Ghaly.pdf
https://www.tribuneindia.com/news/comment/adultery-needs-review-not-a-new-definition/642199.html
https://www.tribuneindia.com/news/comment/adultery-needs-review-not-a-new-definition/642199.html

[1] INDIAN PENAL CODE, 1860

[2] Merriam –Webster’s Dictionary of Law ©1996

[3] Adultery needs review not a new definition – The Tribune India

[4] “Encyclopedia Britanica Online, “Adultery”

[5] “Women as Guardian of purity”

[6] Daniel Otto son, legal Survey on the Countries in the World having legal Prohibitiona on Sexual activities between Consenting Adult in Private(2006), Hugo Hotte and Genevieve King Rule, A Comparative and legal Analysis of the Combodian Law on Monogamy(2007)

[7] Where adultery is still illegal? | The Week UK

[8] The hudood ordinance – 7 may 2011

[9] Payne-James J. et al, Forensic Medicine: Clinical and Pathological Aspects, lie, 2003, Greenwich Media Ltd.: London, p; 30, 35.

[10] THE MICHIGAN PENAL CODE (EXCERPT) Act 328 of 1931, Adultery could mean life in prison in Michigan

[11] 

11“Criminal Code of the Republic of China, Article 239”. Revised Penal Code of the Philippines

[12] How To Sue Your Wife For Adultery In The Philippines

[13] A Lutheran Plague: Murdering to Die in the Eighteenth Century at Google Books

[14] Rod Powers. “Adultery in the Military”

[15] Payne-James J. et al, Forensic Medicine: Clinical and Pathological Aspects, lie, 2003, Greenwich Media Ltd.: London, p; 30, 35.

[16] Kanchan T and Nagesh KR.Adultery and the Indian law. Int J Med Toxicol Legal

[17]Collective religioscientific discussions on Islam and hivaids

Payne-James J. et al, Forensic Medicine: Clinical and Pathological Aspects, lie, 2003, Greenwich Media Ltd.: London, p; 30, 35.

[18]Wendy Doniger (1995). Lindsey Harlan and Paul B. Courtright, ed. From the Margins of Hindu Marriage: Essays on Gender, Religion, and Culture. Oxford University Press. pp. 161–165. ISBN 978-0-19-508117-6.

[19] Clive Lawton; Peggy Morgan (2007). Ethical Issues in Six Religious Traditions. Edinburgh University Press. p. 22. ISBN 978-0-7486-2329-7

[20] Wendy Doniger (1995). Lindsey Harlan and Paul B. Courtright, ed. From the Margins of Hindu Marriage: Essays on Gender, Religion, and Culture. Oxford University Press. pp. 161–165. ISBN 978-0-19-508117-6.

[21] Rick F. Talbott (2005). Sacred Sacrifice: Ritual Paradigms in Vedic Religion and Early Christianity. Wipf and Stock Publishers. p. 75. ISBN 978-1-59752-340-0.

[22] Stephanie Jamison; Joel Brereton (2014). The Rigveda: 3-Volume Set. Oxford University Press. p. 566. ISBN 978-0-19-972078-1

[23] Lust in Sikhism – Guru Granth Sahib ji (page no. 93 and 213)

[24] Jammu and Kashmir State Ranbir Penal Code, 1989

[25] Durga Das Basu, Commentary on the Constitution of India at 1796 (Wadhwa 8th ed 2007); Srinivasan v. Padmasini,AIR 1957 Mad 622

[26] AIR 1960 SC 1125, 1131

[27] (1971) 404 US 76, 77

[28] 606 So. 2d 1084 (1992)

[29] 971 F.2d 1098, 1106-07 (4th Cir. 1992)

[30] 203 P. 816, 821 (Cal. Dist. Ct. App. 1921)

[31] 87 A.2d 287, 289-90 (Pa. 1952)

[32] 373 S.E.2d 328, 337 (Va. Ct. App. 1988)

[33]53 UCLA L. Rev. 783, 805 & n. 112 (2006

[34] Collective religion scientific discussions on Islam and hivaids

[35] Indian exprees news – stated by Renuka chaudhary (INC leader)

[36] Adultery needs review not a new definition – the Tribune Article

[37] Agharia tribe adultery custom

[38] Violence against women and “honor” crime, Human Right Watch

[39] Law Commission of India, Indian Penal Code Report Number: 42 326-327 (1972)

[40] Law Commission of India, One Hundred Fifty Sixth Report; Indian Penal Code, (Govt. of India, 1997) para 9.46, 9.47

[41] The Universal Declaration of Human Rights.

[42] Adultery needs review not a new definition

[43]Indian express news article – stated by justice Indu Malhotra

Shedding Light on the Criminal Law (Amendment) Act, 2018 – A Change in the Rush? – Saundarya Sinha

Shedding Light on the Criminal Law (Amendment) Act, 2018 – A Change in the Rush? 

Author : Saundarya Sinha

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

Abstract

In the year that has passed, the country has observed several instances, that happened to cause a massive uproar in the society, primarily because of the unspeakable nature of those acts. The Kathua Case and the Unnao Case helped the society realize of the grievous nature that the offence of rape was, and the threat it posed. What followed suit was a roaring demand for a stringent set of laws, and the Government gave that to the agitated public in the form of the Criminal Laws (Amendment) Act, 2018. What seemed at first as a stringent set of laws, amending the provisions governing offence of rape, was welcomed with applause. However, the closer perusal of the changes that were implemented would reveal the gaping flaws that were accompanied by these changes, which was nothing more than a mere hasty effort of the government to pacify the agitated public. This article is an effort to analyse the changes that the Criminal Laws (Amendment) Act, 2018 has brought to the criminal justice system prevalent in the country. Although the Amending Act of 2018 has brought changes in several legislations, this article shall assess the changes implemented to the Indian Penal Code and the Code of Criminal Procedure, which happen to be the basis of the criminal justice system in the country. The Article has also attempted to briefly analyse the lacunae that accompany these changes, and how the ensuing implication will hinder the criminal justice system, whether imminently or in the long run. The paper concludes with a summary of the gaping flaws in the changes made.

Keywords – Amendment, Lacunae, changes, criminal justice, flaws.

Shedding Light on the Criminal Law (Amendment) Act, 2018 – A Change in the Rush?

  • Saundarya Sinha

Introduction

There has been an unnatural surge in the heinous incidents within the country, and it is only obvious that the society would demand stringent laws to be in force, of the nature that would help facilitate the curbing of such incidents. The nation has been in a state of uproar, where the Indian society observed a soaring public resentment over the most heinous incidents that took place in the year 2018. Of such an unspeakable nature were the Kathua and the Unnaorape cases that took place this year, and it was only natural for the society to demand more stringent laws for offenders. In the history of incidents of rape in India, more often than not, the legal response in the form of a new amendment being introduced is often of a hasty nature and does not always take into considerations all the factors before being promulgated. This hasty measure, which may placate the public and help subside the soaring resentment for a little while, but often leaves behind loopholes that happen to be exploited in the later stages of the implementation of the laws. The Kathuaand theUnnaocases of rape were a reminder of the heinous incident that occurred in the year 2012 and was the founding reason for the radical amendments that were introduced to the Indian Penal Code for matters relating to the cases of rape.[1] The Nirbhaya Incident was the reason why there came about a certain awakening for the Government and the Society alike, to deal with the matters concerning rapes happening in the society with a grain of severity, and also give it the due recognition as one of the main societal issues faced by the women in the society.

The Kathuacase was none different and was horrifying in an equal measure. The abduction, rape and then followed by murder, of the 8-year-old girl, AsifaBano, near Kathua, a small village in the state of Jammu and Kashmir, sent ripples of horror and hatred down the citizens of the country, as well as the globe.[2] The incident was horrifying in itself, and more so was the reason why it was committed, which was to drive out the community to which the victim belonged, out of the area.[3] The event attracted a plethora of contempt from the people around the world, and the resultant uproar forced the government of the country to take immediate remedial measures, and thus came the Criminal Law (Amendment) Ordinance, 2018. The ordinance was later assented to by the President, and it came into force on April 21, 2018. However, there is still deliberation ongoing from the time when the ordinance was implemented, as to whether the Government had carried out thorough research into crafting the provisions of the Ordinance, before having hastily promulgated the same.[4]

However, after the Lok Sabha and the Rajya Sabha passed the Bill as well, on July 30 and August 6, 2018, respectively, the Bill further received the Presidential Assent on August 11, 2018, and was later implemented as the Criminal Law (Amendment) Act, 2018.[5] In essence, this Amending Act, which replaced the ordinance in force earlier, and did so with a retrospective effect, happened to bring changes to four legislations in entirety, which are – the Indian Penal Code, 1860 (IPC)[6], the Code of Criminal Procedure, 1973 (Cr.P.C.)[7], the Indian Evidence Act, 1872 (IEA)[8] and the Protection of Children from Sexual Offences, 2012 (POCSO)[9].

In this Article, we shall explore the changes that have been made to the IPC and the Cr.P.C. by the Amending Act of 2018, since these two laws are two of the most prominent pieces of criminal legislation governing the criminal offences in the country. It is noticeable that the changes that have been implemented, have been done in a very short time interval, which is uncharacteristic of the laws that are implemented in a natural course. However, it so appears that the aim of the government in the implementation of these laws was to pacify the public that stood outraged at the events that had unfolded in recent. The flaws of these changes so implemented have been mentioned alongside with the description of these changes, and also have been discussed in the later stages of the Article.

Changes Made to The Indian Penal Code, 1860

Before the Criminal Law (Amendment) Act, 2018 (hereinafter referred to as the ‘CLAA’), the IPC had been amended by means of the Criminal Law (Amendment) Act, 2013. However, the CLAA further amends the IPC in a different way, since while at one hand it amends the existing provisions of the IPC, at the same time, the CLAA also has added some separate provisions to the existing act, thereby adding new offences to the criminal laws existing as they are. However, whether the sought effect of these changes, which is to induce a deterrent effect in the society to curb sexual offences against minors, is being achieved or not, is still a questionable aspect of these rushed changes.

The most prominent change that the CLAA has introduced to the IPC is the enhancement of the punishment that had been previously provided for in the Code. This much is evident from a brief overview that the CLAA has introduced, and is another doubtful aspect of the efficacy of the changes that have been introduced. On the contrary, the nature of this change so brought about does not take into account the nature of the sexual violence in the country, nor does it include in it the founding principles of the criminal legislation in our country.

The most prominent change brought by the CLAA is to the provisions punishing the offences of rapes in the country i.e. the Sections 375 and 376, IPC. If one reads these provisions of the Code with a careful eye, it is evident that the provisions distinguish between two forms of the offence – rape simpliciter[10], and the other aggravated forms of rape.[11] The prior is the normal offence, and tends to attract punishment not so severe, but, on the other hand, the second form of rape, which is committed in an aggravated form, has considerably higher punishment. Section 376 lays down 14 situations, within which if the act happens to fall, it will be considered as an aggravated form of rape, due to the presence of the essential of aggravation.[12]

Prior to the CLAA, the maximum punishment that was awarded for rape under Section 376(1) i.e. the normal form of the offence, was imprisonment between 7 years and ranging all the way to life imprisonment. However, the CLAA has amended this, and as of after the changes, the minimum punishment for the offence u/S. 376(1) has been increased to a period of 10 years.[13] In essence, this means that now, the punishment under both sub-sections i.e. Section 376(1) and 376(2), has been levelled and made the same. While it may appear a consolidates step against the offence of rape, it has some considerable effects that are worrisome, such as the blurring of the distinction the previously existed between the simple form of rape, and the aggravated form, for starters.

In addition, another change that has been introduced to the punishment for offences of rape was to the provision that concerned the offence being done against the girl under 16 years.[14] However, this particular clause has now been omitted, and instead, the sub-Section (3) was introduced by the CLAA.[15] This change now introduced provides for minimum punishment for a period of 20 years, and this may stretch up to life imprisonment for the offender, however, this is a questionable aspect of the nature of this punishment, especially from the perspective of the constitutional validity of the nature of this punishment. A punishment for a period of 20 years under Section 376(3) is questionable, and hard to justify. The current society is now unknown to sexual relationships between adolescents, and awarding such a harsh judgment in such a situation would be unreasonable, at least. In a situation where the girl under the age of 16 years of age enters into a sexual relation with a man of 18 years of age, which would be a case of statutory rape, since the consent would become irrelevant, since the law believes a woman under 16 years of age to be unable to think in a rational manner.[16] Thus, a situation identical to this would invoke the application of Section 376(3) of the Code, but a sentence of 20 years of minimum imprisonment, in addition to the absence to judicial discretion for the same, happens to be too unreasonable.[17] This furthers the fact that the legislators did not think through in entirety the proposed changes to the existing laws, since awarding a man of 18 years the punishment for life imprisonment, would imply that the man would not be released for the remainder of life, something completely irrational. Especially, in the absence of the judiciary discretion, which makes the sentence mandatory, the punishment so being awarded must be proportionate to the crime and must include the variety of the circumstances into consideration.[18]

At the same time, the CLAA also has introduced several new offences into the Indian Penal Code. The provisions that have been included, provide the punishment for conducting the offence of rape against a minor girl under the age of 12 years, and the section provides that the offender may be provided with the punishment of minimum 20 years of imprisonment, which may also extend to imprisonment for life, while the capital punishment has been set as the bar for the maximum punishment under this section.[19]On the other hand, the other sections that have been introduced further the provisions that prior existed for the offence of gang rape. After the CLAA, the offence of raping a girl under the 16 years of age now attracts a mandatory life imprisonment sentence.[20] At the same time, the offence of rape, if committed against a girl under the age of 12 years now attracts enhanced punishment, which ranges from a minimum of life imprisonment, and extends to even the death sentence to the offender.[21] The repercussions of these changes so introduced by the CLAA in 2018 as a hasty measure will be discussed in the later sections.

Changes Made to The Code of Criminal Procedure, 1973:

Before the CLAA was enforced in 2018, the Cr.P.C. was last amended in a slight manner by the Amendment that was enforced in 2013, but as of now, the CLAA has further amended the Code, which will be discussed below.

The Code of Criminal Procedure is essentially a procedural law and lays down the mechanism for the implementation of the criminal laws as have been laid down in the various criminal laws. It is undeniable that the role that is played by the speedy investigation in the cases of criminal nature, and when such speedy investigation is neglected, and inordinate delays happen in the process of the investigations, this causes several problems overall, and may often result in the tampering of the evidences. As it was before, the Cr.P.C. demanded that the investigation process in the cases where the offence of rape has been committed against a minor girl, must be completed within a period of 3 months, but the CLAA has made changes to this time period, and now demands that the investigation process must be completed within a period of 2 months, instead of 3. This change has been mandatory in all categories of the offences of rape, be it rape, gang-rape, and even the rape done against minor girls below 16 or 12 years of age. However, the CLAA continues to remain silent for the situations as to what shall follow if the concerned authorities are unable to complete the investigation process within a period of 2 months and if the appeal is unable to be disposed within a period of 6 months. It I evident from the perusal of the statistics from the NCRB that the pendency of the cases as of the year 2016, the percentage of cases pending remains at 30.3 per cent, and as many as 16,678 cases remain queued for investigation processes.[22]

The provision of appeals in the Cr.P.C. does not lay down any specific provision which concerns with the disposal of the appeals that are filed in the cases of criminal nature.[23] This is what gives a credible basis to the claims made that the appellate process under the Cr.P.C. works to become a hurdle for the implementation of speedy justice to the public[24], and the Law Commission too, has expressed in its opinion that there needs to be a change that lays out a mechanism which helps speedy disposal of appeals in the cases of rape.[25] To that effect, the CLAA has now added a sub-section to Section 374 of the Cr.P.C., that mandates that the appeals must be disposed of within a period of 6 months.

Aside from that, Cr.P.C. also includes several provisions that provide for the anticipatory bail being granted to the individuals.[26] The anticipatory bail is usually made available to the people who are under the fear that they may be arrested for having committed a non-bailable offence. However, the situation after the enactment of the CLAA stands changed, and the CLAA has included a severe provision in the form of a sub-section being introduced to Section 438, which makes the availability of anticipatory bail to the offenders who anticipate their arrest for having committed the offence of rape against the minors under the age of 16 or 12 years. However, this effort does not have an effect that is absolute in nature. Ever since the case of Maneka Gandhi v. Union of India[27], the courts have approached the cases of anticipatory bail with the notion of advancing fairness and the courts have resorted to invoking the doctrine of proportionality. The misuse of the existing mechanisms of laws has caused to spring to life several measures that have been intended to curb this misuse, such as the blanket removal of the provision of availability of anticipatory bail in the State of Uttar Pradesh since the year 1976.[28] Yet there have been cases, where the absence of this provision has been bypassed in several other ways, which was evident in the case of Amaravati v. State of U.P.[29], and also in the case of Lal KamlendraPratap Singh v. State of U.P.[30].

There exists no certainty that the removal of the provision of anticipatory bail in the cases of rapes and gang-rapes, as has been sought to be done by the CLAA will be an effective measure to curb the instances of rape in the country, since as is evident from the precedents, the lack of anticipatory bail has not been a considerably potent hurdle in the past.

Conclusion

Indeed, a change in the penal provisions within the Indian Penal Code, and in the mechanisms that exist for their implementation in the Code of Criminal Procedure was called for, in light of the events that had unfolded earlier this year, but there was a more acute need of thinking them through. The amendment so implemented in the form of CLAA is apparent to be lacking, and it is as clear as day that the changes needed far more deliberation than was accorded to them. Be it the changes that were made to the existing sections, or the sections that were added as new offences to the Indian Penal Code, all have left behind several lacunae, and also have considerable implications because of the way that they exist as of now.

For instance, the new provisions that have been included into the Indian Penal Code, for the offences of rape being committed against minors under the age of 12 and 16, the punishment awarded is considerably stringent, and that could run backwards for the law enforcement agencies. This is chiefly because of the fear of such a stringent punishment would cause a decline in the reporting of the child marriages. Capital Punishment, in this case, will indeed act as a deterrent factor, but the result would be counterproductive, since the reports of rapes in the cases where the victim is in a married relationship and under the age of 12, will go drastically go down due to this change.

The changes so implemented by the CLAA also run counter to what has been provided under the Juvenile Justice Act. As of after the enforcement of the CLAA, the Sections 376DA and 376DB have made the punishment as mandatory to the offenders, which is contrary to what the Juvenile Justice Act states. The provisions of the JJA prohibit the sentences of life imprisonment or death sentence to be awarded to a minor who stands in a conflict of law.[31] Contrary to that, the Section 376DA has provided the life imprisonment to be a mandatorily awarded to an offender who has committed an offence u/S. 376DA. This intersection is evidence that the changes were not thoroughly assessed before having been implemented by the Government.

In regards to the changes being implemented to the Code of Criminal Procedure, the changes are hasty as well, which is a situation identical to the changes brought about in the Indian Penal Code. Although the CLAA brought changes to the mechanism of appeals in the Code, yet it persisted to remain silent in cases where the proposed changes were not fulfilled. The appeals now need to be dismissed within a period of 6 months, in accordance with the changes that the CLAA introduced to the Section 374 of the Code, but the repercussions that should follow in case of non-compliance have not been provided for.

This plethora of blunders is evidence for the fact that the changes that have been made are redundant, and not effective, in their pursuit for achieving what they seek. The sought after deterrence by the lawmakers is not achieved in full by these changes, rather they only serve to provide the offenders with another wave of lacunae to exploit for being charged with the offences. The changes, when hastily implemented tend to undermine the quality of law reforms and leads to congestion within the Judicial system. Such a hasty measure should be avoided, and proper deliberated should be done where its due.

[1]Criminal Law (Amendment) Act, 2013. Available at – http://harsamay.gov.in/PDF/The_Criminal_Law_(Amendment)_ACT_2013.pdf.

[2]“The Brutal Crime that has Kashmir on Edge”, BBC News, 12 April, 2018, Available at – https://www.bbc.com/news/world-asia-india-43722714.  

[3]Eltagouri, Marwa (11 April, 2018), “An 8-year-old’s rape and murder inflames tensions between Hindus and Muslims in India”, Washington Post, ISSN 0190-8286, Available at – https://www.washingtonpost.com/news/worldviews/wp/2018/04/11/an-8-year-olds-rape-and-murder-inflames-tensions-between-hindus-and-muslims-in-india/?noredirect=on&utm_term=.bd3b255c25f3.

[4]“Was any study done before bringing out the rape ordinance?”, The Hindu, April 24, 2018, Available at – https://www.thehindu.com/news/cities/Delhi/was-any-study-done-before-bringing-out-rape-ordinance/article23651748.ece.

[5]The Criminal Law (Amendment) Act, 2018 (22 of 2018), Available at – https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf. 

[6]The Indian Penal Code, 1860 (Act 45 of 1860), Available at – https://www.ncib.in/pdf/indian-penal-code.pdf.

[7]Code of Criminal Procedure, 1963 (Act 2 of 1974), Available at – https://indiacode.nic.in/acts/11.%20Code%20of%20Criminal%20Procedure,%201973.pdf.

[8]The Indian Evidence Act, 1872 (Act 1 of 1872), Available at – https://indiacode.nic.in/acts/5.%20Indian%20Evidence%20Act,%201872.pdf.

[9]Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), Available at – http://wcd.nic.in/sites/default/files/childprotection31072012.pdf.

[10]Punishable u/S. 376(1), IPC.

[11]Punishable u/S. 376(2), IPC.

[12]Section 376(2), sub-clauses (a) to (n), Indian Penal Code, 1860.

[13]CLAA, Section 4.

[14] Earlier, Section 376(2)(i), Indian Penal Code, 1860.

[15]Supra note 13.

[16]Vibhute, K.I., 2017, PSA Pillai’s Criminal Law, 824 (Lexis Nexis, 13th edn.).

[17]Satish, Mrinal, 2016, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India(Cambridge University Press).

[18]Singh, Indira J., “Stringent punishment to score political points” Deccan Herald, April 28, 2018,Available at: https://www.deccanherald.com/national/sunday-spotlight/stringent-punishments-score-political-points-667220.html.

[19]Section 376AB, IPC.

[20]Section 376DA, IPC.

[21]Section 376DB, IPC.

[22]National Crime Records Bureau, Report on Crime in India 2016, 148-149 (Ministry of Home Affairs, 2017).

[23]Section 374, Cr.P.C.

[24]T. Mehta, Neha, “The slow road to justice for India’s rape victims”, Al-Jazeera, Aug. 18, 2016, Available at: https://www.aljazeera.com/indepth/features/2016/08/slow-road-justice-india-rape-victims-160817 095526223.html.

[25]Law Commission of India, 172nd Report on Review of Rape Laws, (March, 2000); Law Commission of India, 84th Report on Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence (1980).

[26] Section 438, Cr.P.C.

[27]Maneka Gandhi v. Union of India (1977) 1 SCC 248.

[28]Section 9, The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (Act 16 of 1976), Available at – http://www.lawsofindia.org/pdf/uttar_pradesh/1977/1977UP18.pdf.

[29](2005) Cr. L.J 755.

[30](2009) 4 SCC 437.

[31]Section 21, Juvenile Justice Act.

Problems faced by LGBT Community in the society – Himanshu Chhipa and Aishwarya Singh Hada

Problems faced by LGBT Community in the society

AUTHOR : HIMANSHU CHIPPA

CO AUTHOR: AISHWARYA SINGH HADA

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

Abstract: –

LGBT has turned into a broadly acknowledged assignment for minorities in light of sexual and sex introduction. All individuals from these subgroups are liable to comparable biases established in convictions and customs about sexuality also, sex. LGBT individuals, as individuals from a social minority gathering, are experiencing different types of socio-financial and social unfairness. The absences of social acknowledgment affect the limit of LGBT individuals to completely get to and make the most of their rights as natives. They will probably encounter narrow mindedness, separation, provocation, and the risk of savagery because of their sexual introduction, then those that recognize themselves as hetero. Being lesbian, gay, swinger, or transgender in this general public isn’t actually observed as “expected.” Though the Declaration of Independence expresses that, “all men are made equivalent,” fairness is something these people battle with, and presently can’t seem to accomplish. LGBT separation comes in numerous structures. It can change from something as minor as a hostile look to a noteworthy issue like the refusal of work. Separation towards the individuals who are LGBT makes many live inadmissible lives, for a reason they have no influence over. In spite of the fact that segregation is a consistent issue for the LGBT people group, the advancement of LGBT acknowledgment from society in these previous years demonstrates that balance for these people is profoundly achievable, potentially sooner rather than later. Featuring some real issues looked by LGBT individuals over the world is the topic of this article.

Introduction:

  “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”-Justice Kennedy

Laws enforcing sexual morality may cause misery of a special degree.”

                                                                                                    -H.L.A. Hart in Law, Liberty and Morality

Section 377 of the Indian Penal Code, an invention of pilgrim creation, has criminalized „unnatural sexual acts‟ since its application as law in 1862. Homosexuality falls inside such acts and may pull in reformatory measures.[1] In the earlier century, lawmaking bodies and judiciaries over the globe have maintained laws criminalizing homosexuality and transgender conduct, legitimizing them on grounds of open tolerability and ethical quality. With the coming of the contemporary age, the development against the severe and harsh nature of Section 377 developed exponentially and achieved its climax in Naz Foundation v. Administration of NCT of Delhi[2], wherein the Delhi High Court perceived the time misplacement related with Section 377 and deciphered it to avoid sexual acts between consenting grown-ups, along these lines decriminalizing homosexuality. In spite of the fact that the consequences are constrained and might be controlled by a demonstration of Parliament, the judgment is a milestone in common liberties‟ case and might be viewed as one of the venturing stones to the liberation of the sexual minorities in India from oppression and pressure because of the law.

This paper is an endeavour to remove the essentialness and extensive impacts of this judgment despite foundational maltreatment of gay people and transgenders, by masters of the law under the exterior of maintaining Section 377, preceding this judgment. Further, the sacred parts of the judgment will be talked about and its application to whatever remains of India, in light of the Supreme Court‟s choice in Kusum Ingots v. Association of India[3], will be inspected.

Violence and apathy towards sexual minorities by the law enforcement Agencies: –

Section 377 has been widely utilized by the law masters to bug and adventure gay people and transgender people. Different such occurrences have become exposed in the ongoing past. In Jayalakshmi v. Province of Tamil Nadu[4], Pandian, a transgender, was captured by the police on charges of burglary. He was explicitly manhandled in the police headquarters which at last drove him to immolate himself in the premises of the police headquarters. Essentially, policemen captured Narayana, a transgender, in Bangalore on doubt of robbery without advising him of the grounds of capture or stretching out any chance to him to guard himself. His journal was appropriated by the police and he was debilitated with desperate results on the off chance that he didn’t help with identifying different transgenders he was familiar with[5 ].Homosexuals have additionally been at the wronged end of money related coercion by the police in return for not uncovering their characters to society[6]. A curious utilization of Section 377 was found in Lucknow when specialists of Bharosa, an NGO went for spreading mindfulness about AIDS, were captured for circulation of leaflets giving tips on safe sex to gay people[7].

Similar offices of the law have been impassive towards these sexual minorities in the domain of their wellbeing and security. At the point when a restorative group reviewed Tihar Jail, revealed a high frequency of homosexuality in the jail and prescribed arrangement of condoms to detainees to keep an expansion of ailments, the Inspector-General of Prisons denied any such fortune, supposing it to be a dormant admission of uncontrolled gay conduct in the prison.[8] As a result of the latency of the jail staff, the AIDS Bhedbhav Virodhi Andolan recorded a request of in the Delhi High Court testing the official position and the dependability of Section 377[9]. Similarly, the Indian Council for Medical Research (ICMR) and Indian Medical Association (IMA) have not endorsed any rules for sex-reassignment Surgery (SRS). This hesitance with respect to the medicinal circle has driven numerous transgenders to approach quacks, putting themselves at grave risk.[10]

Concept of LGBT:-

LGBT is an initialism that stands for lesbian, gay, promiscuous, and transgender. The initialism LGBT is proposed to accentuate an assorted variety of sexuality and sex personality-based societies and is now and then used to allude to any individual who is non-hetero or non-cisgender rather than solely to individuals who are lesbian, gay, swinger, or transgender. To perceive this incorporation, a mainstream variation includes the letter Q for those who recognize as eccentric or potentially are scrutinizing their sexual way of life as LGBTQ, recorded since 1996. Regardless of whether or not LGBT individuals straightforwardly distinguish themselves may rely upon whether they live in an unfair domain, and in addition the status of LGBT rights where one lives. Prior to the sexual upheaval of the 1960s, there was no regular non-slanderous vocabulary for non-heterosexuality; the nearest such term, “third sex”, follows back to the 1860s however never increased wide acknowledgement in the United States. The principal broadly utilized term, gay, was thought to convey negative meanings and tended to be supplanted by homophile in the 1960s, and in this way gay in the 1970s. As lesbians produced more open characters, the expression “gay and lesbian” progressed toward becoming more typical. Lesbians who held a more essentialist see that they had been conceived gay and utilized the descriptor “lesbian” to characterize sexual fascination, regularly thought about the nonconformist, furious assessments of lesbian women’s activists to be hindering to the reason for gay rights. This was before long pursued by swinger and transgender individuals additionally looking for acknowledgement as authentic classes inside the bigger network. After the underlying happiness of the Stonewall riots wore off, beginning in the late 1970s and the mid-1980s, there was an adjustment in discernment; some gays and lesbians turned out to be less tolerating of androgynous or transgender individuals. It was suspected that transgender individuals were carrying on generalizations and bisexuals were essentially gay men or lesbian ladies who were reluctant to turn out and speak the truth about their personality. Every people group that is altogether included has attempted to build up its own personality including whether, and how, to line up with other sex and sexuality-based networks on occasion barring different subgroups; these contentions proceed to this day[11]

Problems Faced by LGBT People:-

Lesbian, gay, swinger, transgender (LGBT) individuals confront huge challenges experiencing childhood in a general public where heterosexuality is regularly exhibited as the main worthy introduction also, homosexuality is viewed as degenerate. They keep on confronting separation and rejection over the world in all circles of life. Homophobic brutality and misuse focusing on LGBT individuals happen all the time. In most EU Member States, same-sex couples abhor indistinguishable rights and securities from inverse sex couples, and thusly experience the ill effects of separation and burden in access to social insurance plans, for example, wellbeing care and annuities. In the work showcase, a lion’s share of LGBT individuals keeps on concealing their sexual introduction or to persevere badgering out of dread of losing their activity. Especially helpless are youthful LGBT individuals who encounter irritation from family and companionship systems, badgering at school and imperceptibility, which can lead at times to underachievement at school, school drop-out, mental sick wellbeing and vagrancy separation not just denies LGBT individuals break even with access to scratch social products, for example, work, human services, instruction and lodging, yet it additionally minimizes them in the public arena and makes them one of the helpless gatherings who are in danger of winding up socially barred. Here I am featuring some real issues looked by LGBT individuals over the world.

Social networks and family:-

LGBT people frequently chance losing their informal organizations if their sexual introduction or sex personality is uncovered. Indeed, even individuals from families that are not poor may wind up in destitution if their family walks out on them. The family, for some the fundamental wellspring of security, may for LGBT people be the single most noteworthy risk to their wellbeing and security. Respect related brutality guided at LGBT people may prompt demonization, avoidance and, even from a pessimistic standpoint, passing. It isn’t exceptional that “therapeutic” assaults – rapes expected to “convert” lesbian what’s more, swinger ladies and FTM transgender people – are endorsed, or even completed by, the unfortunate casualty’s very own relatives. Ladies who don’t wed may wind up being subject to their family, while not having any impact over their very own life. Brutality and dangers of savagery against relatives may likewise confine LGBT people’s opportunity and be an obstruction in taking an interest straightforwardly in activism for LGBT rights. The nonattendance of a legitimate system for same-sex families makes vulnerability for youngsters living in families that are viewed as flighty. Certain LGBT issues can be raised under the heading of sexual orientation mainstreaming. Sex-related brutality, for example, is an idea that covers the two men’s viciousness against ladies and detest roused savagery against LGBT people. Exchanges between the experts and common society associations, LGBT associations in the event that they exist or ladies’ associations that are LGBT comprehensive, can be helpful fora to raise such issues.

Legal Human Rights: –

It is trusted that the network of LGBT people is underrepresented in the social equality zone. Globalization influenced the battle of the LGBT people group to accomplish balance in their legitimate rights. In the USA, the Second World War joined various men with untraditional sexual introduction and consequently their acknowledgement is higher than in Europe. After the war, those men settled on a choice to stay joined together and settle down in huge urban communities as opposed to going home. Such people group before long ended up political and began the development for gay rights. These days, one can discover a ton of lesbian and gay networks situated in huge urban communities. Various advanced education foundations open help places for LGBT individuals. At the point when the Universal Declaration of Human Rights was received, the activists of the LGBT people group adhered to its real uniformity idea. Regardless of the way that the assertion does not specify the privileges of gay individuals, despite everything it talks about correspondence for all individuals and opportunity from any kind of segregation.

To whole up, it is conceivable to state that the LGBT people group still needs to battle for its equivalent rights in light of the fact that not all individuals are prepared to acknowledge the way that sexual assorted variety is a standard. It is additionally important to recall that things that are viewed as conventional in current society may wind up unsuitable in future. That is the reason it is conceivable to express that the LGBT people group gets all opportunities to accomplish correspondence in the closest future and its individuals will get a chance to carry on with their life minus all potential limitations. Diverse LGBT associations do their best to convey attention to the general public about the issue of segregation because of the sexual introduction. On the off chance that you need to find out about the LGBT issue, you are allowed to purchase the LGBT exposition on the web. There is a lot of data identified with the LGBT point.

Conclusion and Necessary Recommendations: –

Unmistakably LGBT people who fundamentally have a distinctive sexual introduction, confront segregation, prohibition from the general public, accordingly regularly, address with obstructions to fulfil their issues. This rejection and alienation could fluctuate from the least difficult individual relations to the broadest social obliviousness, rejection, shunning, working all the while together, and can even damage the privileges of life. Lesbian, gay, swinger and transgender individuals have for quite some time been associated with endeavours for racial and monetary equity. Today, LGBT coordinators, what’s more, bunches are progressively drawing associations between the development for LGBT rights and the development for monetary and racial equity, taking note of that individuals to have different, layered personalities and are individuals from more than one network in the meantime, at the same time encountering mistreatment and benefit.

There is no short cut solution that can address the problems facing many LGBT people across the world. Therefore, in the light of the above-mentioned discussion, following recommendation can be developed in recognizing the role that individuals, as well as institution, can take effectively.

  1. Bolster the most underestimated of the LGBT people group—minorities, low-salary, youthful, elderly and transgender individuals.
  2. Set up joint efforts on cross-issue work that incorporates LGBT issues influencing low-pay and non-white individuals’ populaces.
  3. Draw in establishment staff in government-funded training around issues influencing LGBT low wage individuals and LGBT minorities, particularly as they identify with transgender issues.
  4. Schools and instructor training programs are vital locales where LGBT issues and concerns should be tended to.
  5. Consider LGBT issues as a focal topic in all monetary and racial equity work.
  6. Backer with magnanimous associates to help LGBT racial and monetary equity work.
  7. To change societal state of mind media needs to assume a dependable job by writing about LGBT issues and advancing a culture of resistance and opportunity for minorities.
  8. Lawful supports should be made that can go up against Public Interest Litigation on LGBT issues.

[1] 3 R. A. NELSON, INDIAN PENAL CODE 3738 (S. K. SARVARIA ED., 9TH ED. 2003).

[2] WP(C) No.7455/2001, DELHI HIGH COURT; Decision on 2nd July, 2009.

[3] AIR 2004 SC 2321: (2004) 6 SCC 254

[4] (2007) 4 MLJ 849

[5] People’s Union for Civil Liberties (PUCL) Report on Rampant violation of rights of Sexual Minorities, p.14 (2000).

[6] Ibid.

[7] Arvind Narrain, The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in the Era of Hindutva, in HEALTH AND HUMAN RIGHTS 153 (2004)

[8] Siddharth Narrain, The Queer Case of Section 377 (http://www.sarai.net/publications/readers/05-bareacts/06_siddharth.pdf; last accessed on 13th August, 2009).

[9] RUTH VANITA, QUEERING INDIA 15 (2002).

[10] Siddharth Narrain, being a Eunuch in India (http://www.countercurrents.org/gen-narrain141003.htm; last accessed on 13th August, 2009).

[11]International Journal of Interdisciplinary and Multidisciplinary Studies (IJIMS), 2014, Vol 1, No.5, 317-331.

TIME TO SCRAP THE DRACONIAN LAW – Shiva Tiwari and Mukhtar Ahmad


TIME TO SCRAP THE DRACONIAN LAW

Author’ s Name: Shiva Tiwari

Co-Author’s Name: Mukhtar Ahmad

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

“Openness may not completely disarm prejudice but it is a good place to start.”

ABSTRACT

Societal perspective toward same-sex relationships has multifarious over time and place. The right of homosexual people has not been sanctioned in our prestigious country. As one of the pretended section of Indian penal code i.e. section 377 of Indian Penal Court clearly states that this section criminalizes the voluntarily carnal intercourse against the order of nature done by any individual of same-sex, women and animals. The nature of the transgender in India is that the privilege of equity under the steady gaze of law and equivalent assurance of law is ensured under Article 14, Article 15, Article 19 and Article 21 of our constitution. Several religious groups, as well as their member in India, don’t support the decriminalization of this right. In Hindu narrative tradition also proclaimed those as a part of our society which is clearly demonstrated in Hindu sacred books like Mahabharata and several others book. These people are materialized in every spare of society. There wants and interest is being condemned in our society. Now they wanted to trounce public fear. The paper aims to enormously analyse the section 377 as well as the theory of various intellectual like Wolfenden Reports and Mill’s Harm Principle Certain case which are also been filled by the homosexual activist Naz foundation for decriminalizing homosexuality.

                        ****************************************************

INTRODUCTION

Draconian law i.e. section 377 which is currently prevailing in our society states that voluntarily having anal intercourse between same-sex as well as different sex as unnatural. This is a law established in the year 1860 when our country deals with criminal law i.e. Indian Penal Code. This law is established by the country which itself scarab this draconian law before 50 years by establishing the law sexual offence Act 1967.

HISTORY OF HOMOSEXUALITY

Homosexuality was frequent in ancient Greece and in many other countries. Their culture was influenced by Abrahamic religion, the law and the church established sodomy as a transgression against divine law or crime against nature. Many historical figures like Socrates, Lord Byron, Edward II and Michael Foucault termed gay or bisexual and regarded them as a risk of anarchistic introduction of the social construct of sexuality. Homosexual and transgender are also the part of pre-conquest civilization in Latin America. Homosexuality in Japan is known as Shudo or Nanshok. They were documented over one thousand years and had a connection with Buddhist Monastic life and Samurai tradition.

‘HOMOSEXUALITY NOT AN ILLNESS’

The Indian Psychiatric Society has said it is not a type of mental illness stating that there is no such scientific evidence by which their sexual orientation can be altered by any treatment and if any such act should be done then it would lead to low self-esteem and stigmatization of person. In fact, homosexuality was inborn and therefore not immoral, that it is not a disease, The I.P.C recognizes same sex as a normal variant of human sexuality.

WOLFENDEN REPORT 1957 ON HOMOSEXUALITY

The report recommended that “homosexual behaviour between a consenting adult in private should no longer be a criminal offence”. The main aim of report is to question the legitimacy of labelling homosexuality as a disease and to intervene in the private life of citizens or to seek to inform any particular pattern of behaviour. As a result of this report sexual offence act, 1967 was passed in England.

JOHN STUART MILL VIEW ON HOMOSEXUALITY

On Liberty, John Stuart Mill kicked of a crucial and extremely influential non-interference principle which precludes interference by government and society in those areas of life which only that solemnly concern individuals themselves. Mill writes, “The solely a part of the conduct of anyone for which he is amenable to society is that which concerns others[3]. In the part which merely concerns himself, his independence is, of right, absolute. [4]Thus, Mill suggests that the only conduct for which an individual is appropriately subject to sanction by either the state or society is conduct which is “other-affecting;” that which only affects himself is not appropriately subject to external penalization.

SEXUAL ORIENTATION

Sexual orientation refers to an inner feeling and behaviour of emotional, romantic and/ or sexual attractions to men, women or both sexes. Sexual orientation also refers to a person’s sense of identity based on those attractions, related behaviours and membership in a community of others who shows hose attractions[5]. Examine over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. However, sexual orientation is usually discussed in terms of three categories: heterosexual (having emotional, romantic or sexual attractions to member to members of others sex), gay/lesbian (having emotional, romantic or sexual attractions to members of one’s own sex) and bisexual (having emotional, romantic or sexual attractions to both men and women). This type of behaviours and attractions has been described in various cultures and nations throughout the world. In the United States of America, the most frequent labels are lesbians (women attracted to women) gay men (men attracted to men), and bisexual people (men or women attracted to both sexes). Although, some people may use different labels or none at all. Sexual orientation is distinct from other components of sex and gender, including biological sex (the anatomical, psychological sense of being male or female) and social gender role (the cultural norms that define feminine and masculine behaviour).

Thus, sexual orientation is closely tied to the intimate personal relationships that meet deeply felt needs for love, attachment and indemnity.[6]

HUMAN DIGNITY

As an extremely volatile principle, dignity is sometimes even invoked on opposite sides of the same debate, for instance with regard to abortion where it can refer to both the dignity of the woman and the unborn.[7]

In Germany, dignity is enshrined in article 1 of the Basic Law and is understood as “the most basic and foundational of rights.”[8] The European Court of Human Rights has relied on human dignity in interpreting human rights abuses[9]. Supreme Court of India’s view on Human Dignity; right to life includes the protection of health and strength of the worker is a minimum requirement to enable a person to live with human dignity.

The Council of Europe further relied on dignity with regard to human rights and biomedicine.[10]

The right of human dignity, development of personality, social protection, right to rest and leisure are fundamental rights to workman assured by the Charter of human rights, in the Preamble and Arts. 38 and 39 of the Constitution.[11]

INDIA

In August 2017, the Supreme Court, in its ruling that privacy is a fundamental right, gave hope to lesbian, gay, bisexual, and transgender (LGBT) people in India by stating that section 377 of India’s penal code, which effectively criminalizes same-sex relationships between consenting adults, had a chilling effect on “the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.”

NAZ FOUNDATION ROLE

Naz Foundation is one of the prestigious non-government organization established in the capital New Delhi with the prime objective as to work on HIV/AIDS and sexual health. This organization is formed by a social activist as well as human rights and animal rights activist Anjali Gopalan. She established this prestigious institution in the year 1994 at New Delhi. Kalyani Subramanyam is currently the director of this foundation. International netball federation is among one of his partners and Standard Chartered Bank is among the crucial funder. Chevalier de la Legion d`Honneur award by French Government in the year 2013. This is organization who fought the case to decriminalize the section 377 of Indian Penal Court so that the rights of people belonging to LGBTQ community should not be harmed.

Suresh Kumar Kaushal V. Naz foundation

The Naz Foundation filed a writ petition in the Delhi High Court Challenging The constitutional validity of section 377 of Indian Penal Court. This section penalizes unnatural intercourse even consensual intercourse between two adults of same-sex or even of the opposite sex indulging in penile non-vaginal sexual activities. The petitioner submitted that section 377 of Indian Penal Court encroached upon Articles 14, 15, 19 and 21 of the Constitution of India and also that the section ought not to criminalize consensual intercourse even non-vaginal. They put emphasis on the Indian constitution is a vibrant, living document and its wide insurance must be alterably translated to include new circumstances and tests.

The High Court applied the principle of Yogyakarta and worldwide patterns for security and nobility and held: “The sphere of privacy allows a person to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her own choice, and fulfil all legitimate goals that he/she may set. In the Indian Constitution, the right to live with dignity and the right to privacy are recognized as dimensions of Article 21. Section 377 of IPC denies a person’s dignity and criminalizes his or her core identity solely on account of his/her sexuality and thus violates article 21 of the Constitution. The Court reiterated that the term ‘personal liberty’ is of “the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man.”[12]

National Legal Services Authority v. Union of India[13]

The New Zealand court in Secretary, Department of Social Security v. “SRA”[14]–(as of raising a purely psychological question regarding gender determination which is one of the self-perception as well as a social question and also how society perceives the individual.

The court recognized that identity is one in every of the foremost elementary aspect of life that refers to a person`s intrinsic sense of being a male, feminine or transgender or transsexual person. They opined that guarantee to equality and fairness on the bottom of identity is increasing and gaining acceptance worldwide which it may also be applied in the Republic of India. Article 15 provides for social action for the advancement of minority and backward communities. The Transgenders are for long denied their rights beneath Article 15(2). They’re shunned from several public places together with the academic establishment, health care institutes, etc. the court control that TGS is entitled to social action as secure beneath Article15(4) and additionally to reservation within the matter of appointment. The state is certain to take social action to relinquish them due to illustration publicly services. The court any emphatic on the necessary for legal recognition of third or transgender identity and over that they belong to a definite socio-religious and cultural cluster and should be thought of as a “third gender”, excluding male and feminine. Justice K.S. Radhakrishnan, speaking on behalf of the court, over the judgement by holding that discrimination on the premise of the sexual orientation of identity includes any discrimination, exclusion, restriction or preference, that has the result of nullifying or transposing equality by the law of equal protection of law secure beneath our constitution. In lightweight of the aforesaid, it created numerous declaration and direction to the Centre and the state government Hijras, Hijras, Eunuchs are to be treated as “third gender”.

  • TGs have the right to decide their self-identified gender.
  • Take steps to treat TG as socially and educationally backward classes of citizens in cases of admission in educational institutions and for public appointments.
  • Governments to operate separate HIV Zero-Surveillance Centers.
  • Governments to seriously address the problems faced by TGs.
  • Provision for separate public toilets and appropriate medical care in hospitals.
  • Governments to frame various social welfare schemes for the betterment of TGs.
  • Governments to create public awareness so that TGs will not be treated as untouchables.
  • Take measures to regain the respect and place of TGs in the society which they once enjoyed.[15]

CANADA

In June 2017, Bill C-16 received royal assent amending the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination. The bill also amends the criminal code to extend protection against hate propaganda to any section of the public that is distinguished by gender identity or expression while deeming that any offence motivated by bias, prejudice, or hate based on gender identity and expression as an aggravating circumstance in sentencing.[16]

UNITED KINGDOM

The governor of Bermuda, a UK overseas territory, signed a law in February 2018 that strips same-sex couples of the right to marry. The law replaced same-sex marriage with the option of a domestic partnership, a status which will be open to both same and different-sex couples. Bermuda is the first country in the world to reverse its laws on same-sex marriage, after its Supreme Court ruled in May 2017 to allow same-sex couples to marry.[17]

UNITED NATIONS AND OTHER HUMAN BODIES – ON GENDER IDENTITY AND SEXUAL ORIENTATION

United Nations, in this regard, has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender persons. The Universal Declaration of Human rights Article 6, 1948, and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the vested right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. International Commission of Jurists and the International Services for Human Rights on Behalf of a coalition of human rights organizations, took a project to develop asset of international legal principles on the solicitation of International Law to Human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to state’s human rights obligations. A distinguished group of human rights experts has drafted, developed, discussed and reformed the principles in a meeting at Gadjah Mada University in Yogyakarta, on the Application of International Human Rights Law in relation to Sexual Orientation and gender identity the following Yogyakarta principles is unanimously adopted on the first decade of November 2006 in Indonesia.

YOGYAKARTA PRINCIPLES

Principle 1 which deals with rthe ight to the universal enjoyment of Human Rights, reads as follows: –

“All human being is born free and equal dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.

States shall:

  • Embody the principles of the universality, interrelatedness, interdependence and indivisibility of all human rights in their national constitutions or other appropriate legislation and ensure the practical realization of the universal enjoyment of all human rights;
  • Alter any legislation, including criminal law, to ensure its consistency with the universal enjoyment of all human rights;
  • Organize programs of education and awareness to promote and enhance the full enjoyment of all human rights by all persons, irrespective of sexual orientation or gender identity;
  • Integrate within state policy and decision-making a pluralistic approach that recognizes and affirms the interrelatedness and indivisibility of all aspects of human identity including sexual orientation and gender identity.

UN bodies, regional Human rights Bodies, National courts, government Commissions and the Commission of Human Rights, Council of Europe, etc. have endorsed the YOGYAKARTA PRINCIPLES and have considered them as an important principle for identifying the obligations of States to respect, protect and fulfill the Human Rights of all persons, regardless of their gender identity[18].

CONCLUSION

Finally, I would like to conclude that these people round the world face violence and inequality- and generally torture, even execution- because of United Nation. Sexual orientation and personal identity square measure an integral aspect of themselves and may be the near cause for discrimination or abuse. Human Rights Watch works for Lesbian, gay, bisexual and transgender people’s rights and with the activists representing a multiplicity of identities and problems. We have a tendency to document and expose abuses supported sexual orientation and personal identity worldwide, as well torture, killing and executions, arrests beneath unjust laws, unequal treatment, censorship, medical abuses, discrimination in health and jobs and housing, violence, abuses against kids, and denial of family rights and recognition. We have a tendency to advocate for laws and policies which will shield everyone`s dignity. We have a tendency to work for a world whoever all individuals will fancy their rights totally. While discussing several leading cases national as well as the international, various theory of intellectuals as well as report of United Nation we come to know that we are still far behind the other nation who themselves scrap the law in mid-20th century and we are still pretending that it is unnatural. We are living in a dilemma of justice we say that there must be an equal justice to all but we are here just snatching their rights as just by their behavior. Nowadays these people face a lot of humiliation in every corner of society so it’s my humble request to finish up this dilemma and led the equality to be furnished into the air.

[1] Author Law 2nd year, Aligarh Muslim University centre Murshidabad West Bengal,                                             phone number-9953630909

[2]  Co-Author Law 2nd year, Aligarh Muslim University centre Murshidabad West Bengal,

phone number-7586018292

[3]https://gould.usc.edu/why/students/orgs/ilj/assets/docs/15-2%20Strasser.pdf

[4] (JOHN STUART MILL, ON LIBERTY (Elizabeth Rapaport ed., Hackett Publishing Co, Inc. 1978) (1859)

[5] Sociology: A Global Perspective by joanFerrante

[6]http://www.apa.org/topics/lgbt/orientation.aspx (American Psychological Association) (last modified September 14 2018)

[7] Reva B. Siegel, Dignity and Sexuality: Claims on Dignity in Transnational Debates over Abortion and Same-Sex

Marriage, 10(2) Int’l J. Const. L. 355 (2012).

[8]Grundgesetzfür die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBL I (Ger.),

art. 1(1) (“Die Würde des Menschen istunantastbar. Siezuachten und zuschützenistVerpflichtungallerstaatlichenGewalt.”).

[9]Tyrer v. United Kingdom, App. No. 5856/72, Eur. Ct. H.R. (Apr. 25, 1978), para 32

[10] Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicines: Convention on Human Rights and Biomedicine, Council of Europe CETS No. 164 (1997)

[11]Air 1995 Supreme Court 922

[12]‎Civil Appeal No. 10972 OF 2013

[13]Writ Petition number-400 of 2013 in supreme court

[14](1993) 43 FCR 299)

[15]https://indiankanoon.org/doc/193543132/

[16] https://www.hrw.org/video-photos/interactive/2018/04/16/sexual-orientation-gender-identity-country-profiles

[17] https://www.hrw.org/video-photos/interactive/2018/04/16/sexual-orientation-gender-identity-country-profiles

[18]https://indiankanoon.org/doc/193543132/-[(2014) 5 SCC 438]

Efficacy of Village Panchayats in the Era of Lok Adalats: A Socio-Legal Study – Rishabh and Prateek.

Efficacy of Village Panchayats in the Era of Lok Adalats: A Socio-Legal Study

AUTHOR :RISHABH KUMAR SRIVASTAVA

CO AUTHOR: PRATEEK SINGH

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

Abstract

An ounce of mediation is worth a pound of arbitration and a ton of litigation” – Joseph Grynbaum

The concept of Alternative Dispute Resolution (hereinafter referred as ADR) is not a new concept to the world. In India also it has been aged since time immemorial. The only difference between the old ADR system and modern ADR system is that the modern ADR system is more systematized and civilized. In the older days, the most famous and the most practised ADR mechanism was the “Village Panchayats”. The small family disputes or property disputes, even the gruesome offences were sorted at the village level by the Village Panchayats organized weekly or monthly. The term “Panchayat” literally means “a group of five people” whose words were considered equal to the pronouncement of God. Mahatma Gandhi also quoted in one of his speech that “India lives in its villages” and almost half of the Indian population lives in villages having almost no income or a very lesser income. So it becomes tough for them to bear the expenses of court. Thus, the most approachable place for mediation for them is the Village Panchayats. Article-40 of the Indian Constitution also states that “The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self- government.”

But the Panchayati Raj System failed due to certain reasons and gave birth to the concept of “Lok Adalats (People’s Court)” under the Legal Services Authorities Act, 1987 to solve disputes by compromise and conciliation. This became the cheapest form to get justice by the weaker sections of the society.

This research paper would be dealing with the problems related to the traditional panchayat system in India as a mode of dispute resolution. This paper would be talking about the modern mechanism of ADR i.e. Lok Adalats, the panchayats still play an important role and hence deserve attention in the present system too.

INTRODUCTION:-

‘Awake to freedom’ “Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes which comes but rarely in history, when we step out from the old to the new, then an age ends, and when the soul of a nation, long suppressed, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to India and her people and to the still larger cause of humanity.– Pandit Jawaharlal Nehru (1)

It was the year 1947 when after facing so many hardships India finally got its independence from the long and brutal clutches of British rule. During those days India was a land of villages, and most of the rural Indians depend on farming and agriculture. India’s economy during that period was mostly generated out of agriculture. Inspired by the village economy Mahatma Gandhi denoted India as a land of the village and quoted in his words that “the future of India lies in its village.” Also during those days, there was no as such awareness amongst the people and for any dispute resolution the most appropriate method was the ‘Village Panchayats”. In simple word village panchayats consist of five elderly members of the village who are generally considered as god and there words were considered as “word from the god”. Gram Panchayats or the Village Panchayats are one of the cheapest and easiest forms of ADR (Alternative Dispute Resolution) System in India having roots from time immemorial.  The panchayats in India plays a titular role. But, here the basic question that arises is that is an ADR System and the importance of Panchayat due to the emergence of ADR in India.

Overview of Alternative Dispute Resolution

Dispute resolution is an indispensable process for making social life peaceful. Dispute resolution process tries to resolve and check conflicts, which enables persons and group to maintain co-operation. It can thus be alleged that it is the sin qua non of social life and security of the social order, without which it may be difficult for the individuals to carry on the life together. Alternative Dispute Resolution (ADR) is a term used to describe several different modes of resolving legal disputes. It is experienced by the business world as well as common men that it is impracticable for many individuals to file lawsuits and get timely justice. The Courts are backlogged with cases which result in the delay of a year or more for the parties to have their cases heard and decided. To solve this problem of delayed justice ADR Mechanism has been developed.

ADR System basically stands for Alternative Disputes Resolution Technique. In simple words, ADR refers to any method of resolving the disputes without involving in any sort of litigation. It is a means of settling the disputes outside the courtroom. Alternative dispute redressal techniques can be employed in several categories of disputes, especially civil, commercial, industrial and family disputes. ADR is usually a less formal, less expensive and less time-consuming than regular trial. ADR can also give people more opportunity to determine when and how their dispute will be resolved. It generally includes methods like early neutral evaluation, negotiation, conciliation, mediation, and arbitration.

  • Early neutral evaluation: it is a court-based ADR process applied to civil cases, it brings parties and their lawyers together early in the pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced, neutral attorney with expertise in the substance of the dispute, or by a magistrate judge. The evaluator may also provide case planning guidance and settlement assistance in some courts. It is purely used as a settlement device and resembles evaluative mediation
  • Negotiation: it is a self counselling between the parties to resolve the dispute. It is the process which does not have any fixed rule but follows a predictable pattern. It is the simplest mean to resolve the dispute. The main aim of negotiation is the settlement of the dispute between the parties by exchange of views and issue of the parties. In negotiation, the party can talk and can share their views without the interfering of any third person.
  • Mediation: Mediation is a process of alternative dispute resolution in which a neutral third party, the mediator, assists two or more parties in order to help them negotiate an agreement, with concrete effects, on matter of common interest; lato sensu is any activity in which an agreement on whatever matter is researched by an impartial third party, usually a professional, in the common interest of the parties.
  • Arbitration: Arbitration, in the law, is a form of alternative dispute resolution — specifically, a legal alternative to litigation whereby the parties to a dispute agree to submit their respective positions (through agreement or hearing) to a neutral third party (the arbitrator(s) or arbiter(s)) for resolution
  • Conciliation: Conciliation is an alternative dispute resolution process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.

Lok Adalat as

The concept that is gaining popularity is that of Lok Adalats or people’s courts as established by the government to settle disputes through conciliation and compromise. It is a judicial institution and a dispute settlement agency developed by the people themselves for social justice based on settlement or compromise reached through systematic negotiations. The first Lok Adalats was held in Unaaim the Junagadh district of Gujarat State as far back as 1982. Lok Adalats accept even cases pending in the regular courts within their jurisdiction.

Section 89 of the Civil Procedure Code also provides as to referring the pending Civil disputes to the Lok Adalat. When the matter is referred to the Lok Adalat then the provisions of the Legal Services Authorities Act, 1987 will apply.

The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee, thus making it available to those who are the financially vulnerable section of society. In case the fee is already paid, the same is refunded if the dispute is settled at the Lok Adalat. The Lok Adalat is not as strictly bound by rules of procedure like ordinary courts and thus the process is more easily understood even by the uneducated or less educated. The parties to a dispute can interact directly with the presiding officer, which is not possible in the case of normal court proceedings

On the flip side, the main condition of the Lok Adalat is that both parties in the dispute have to be agreeable to a settlement. Also, the decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of finality attached to such a determination is sometimes a retarding factor for however be passed by Lok Adalat, only after obtaining the assent of all the parties to the dispute. In certain situations, permanent Lok Adalat can pass an award on merits, even without the consent of parties. Such an award is final and binding. From that, no appeal is possible.

Lok Adalat is especially effective in the settlement of money claims. Disputes like partition suits, damages and even matrimonial cases can also be easily settled before a Lok Adalat as the scope for compromise is higher in these cases. Lok Adalat is a definite boon to the litigant public, where they can get their disputes settled fast and free of cost. The appearance of the lawyers from the side of parties is not barred.

Lok Adalat are not necessarily alternatives to the existing courts but rather only supplementary to them. They are essentially win-win systems, an alternative to ‘Judicial Justice’, where all the parties to the dispute have something to gain.  When the matter is referred to the Lok Adalat then the provisions of the Legal Services Authorities Act, 1987 will apply.

Criteria For Lok Adalat:

Every person who was going file a case under this act should be—–

  • A member of a scheduled caste or scheduled tribes; 
  • A victim of trafficking in human beings or beggar as referred in Article 23 of the constitution; 
  • A woman or a child; 
  • A person with disabilities; 
  • A person is a victim of a mass disaster, ethnic, violence, caste atrocity, flood, earthquake, drought and industrial disaster; 
  • An industrial workman; 
  • In custody; 
  • In receipt of annual income less than rupees nine thousand or such other higher amount and less than rupees twelve thousand or such other higher amount; 

Every Lok Adalat should have own jurisdiction to determine and to arrive at a compromise and settlement between the parties to the dispute in respect of any case pending before the court and any dispute at pre – litigative stage.

Composition of Lok Adalat-

At the national level: 

The central government might constitute the body called National legal services authority in which they had conducted Lok Adalat at regular intervals. For every month the Lok Adalat has been held on a single day for throughout the country right from the Supreme Court till Taluk level court. The national legal services authority consists of the chief justice of India, the sitting or retiring judge of the Supreme Court and such other members. These would develop a fund called National legal aid fund which should be utilized for state-level legal aid programmes and schemes. These authorities had constituted the Supreme Court legal services committee for the purpose of performing their powers and functions.

At the state level: 

The state government might constitute the body called State legal services authority in which they had conducted Lok Adalat at regular intervals. The state legal services authority consists of the chief justice of the High court, the sitting or retiring judge of the High Court and such other members. These would develop a fund called state legal aid fund which should be utilized for state-level legal aid programmes and schemes. These authorities had constituted the High Court legal services committee for the purpose of performing their powers and functions. 

At the district level: 

The state government in consultation with Chief justice of High court might constituted the body called District legal services authority in which they had conducted Lok Adalat at regular intervals within the district itself. The district legal services authority consists of the district judge and such other members. These would develop a fund called district legal aid fund which should be utilized for district-level legal aid programmes and schemes. These authorities had coordinated the activities of the Taluk legal services committee and other legal services in the district. 

At taluk level: 

The state authority might constitute the committee called Taluk Legal services committee for each taluk or mandals or for the group of taluks or mandals to coordinate Lok Adalat and their legal services within the taluk or mandala itself. This committee was headed by a senior civil judge who is its ex – officio chairman operating within the jurisdiction of the committee. Here all the administrative expenses and cost of functions were met out from district legal aid fund.

The function of Lok Adalat-

  • They were laid down effective policies and programmes for the purpose of making legal services available easily under this act. 
  • They were made most effective and efficient schemes for the sake of parties to the disputes. 
  • They have utilized their funds only for legal services efficiently and also allocated their funds to state level and district level authorities. 
  • They took various necessary steps by way of social justice litigation with consumer protection and environmental protection activities. 
  • They had trained social workers for legal skills and also encourage the settlement of disputes by way of negotiation, arbitration and conciliation. 
  • They had periodically monitored and evaluated the legal services aid programmes and policies. 

National legal service authorities, 1987

A Legal services authority act was enacted in 1987 which was enshrined in Article 39 – A of the Constitution of India for free legal services to the citizens of India. In this act, all the authorities were called as statutory bodies in which they were provided free aid to a person who hadn’t capable of bear case expenditures and also appointed a lawyer for a person who is going to be a defendant in their case. These authorities were organized LOK ADALAT (called PEOPLE’S COURT) from out of the court settlement

It is an act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize.  Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. Be it enacted by Parliament in the Thirty-eighth year of the Republic of India.

Section 19 of the act provides for organizing of the Lok Adalat- 1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluka Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.

2) Every Lok Adalat organised for an area shall consist of such number of:- (a) serving or retired judicial officers; and

(b) other persons, of the area as may be specified by the State Authority or the District Authority or the Supreme Court Legal Services Committee or the High Court Legal Services Committee, or as the case may be, the Taluka Legal Services Committee, organising such Lok Adalat.

3) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats organised by the Supreme Court Legal Services Committee shall be such as may

be prescribed by the Central Government in consultation with the Chief Justice of India.

4) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats other than referred to in sub-section (3) shall be such as may be prescribed by the State Government in consultation with the Chief Justice of the High Court.

5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of –

(i) any case pending before it; or

(ii) any matter which is falling within the jurisdiction of, and is not brought before any court for which the Lok Adalat is organised: Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law.

Section 21 of the Legal Services Authorities Act, 1987 is also required to be referred.

Section 21 states about the awards that are given by the Lok Adalat.

Section 21 Award of Lok Adalat- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under subsection (1) of section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870).

(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.

Section 22 of the act talks about the powers of the Lok Adalat- (1) The Lok Adalat shall, for the purposes of holding any determination under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely :

  • the summoning and enforcing the attendance of any witness and examining him on oath
  • the discovery and production of any document;
  • the reception of evidence on affidavits
  • the requisitioning of any public record or document or copy of such record or document from any court or office; and
  • such other matters as may be prescribed.

(2) Without prejudice to the generality of the powers contained in sub-section(1), every Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it. All proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code and every Lok Adalat shall be deemed to be a civil court for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Village Panchayat

Gandhi ji said that concentration of economic and political power would violate all the essential principles of participatory democracy and thereby of Swaraj. Therefore to promote decentralization, Gandhi ji suggested that the institution of village republics both as institutions of parallel politics and as units of economic autonomy. The village being the lowest unit of a decentralized system, politically a village has to be small enough to permit everyone to participate directly in the decision-making process. It is the basic institution of participatory democracy.

Therefore the idea of village panchayat has come into existence. With the 73rd amendment in the constitution, the legislature has come up with the concept of Panchayati Raj which is commonly known as Village Panchayat. The 73rd amendment added the new article in the constitution that is article 243 and article 243B states about Village panchayat that every village should constitute a village panchayat and it also give direction to the state that it is their duty to constitute village panchayat at every level that is at village, intermediate and district level as per the provision of this article and it also stated that Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.

As per Article 243C, the Legislature of a State is empowered to make Provisions with regard to composition of Panchayats. The Panchayat area shall be divided into territorial constituencies. The State is empowered to provide for the representation of the chairpersons of the Gram Panchayats, at the village level, the intermediate level or, in the Panchayats at the district level;and MPs of LS / RS, and MLAs/MLCs at a level other than the village level in such Panchayat; where they are registered as electors in Panchayat at the intermediate level and in Panchayat at the district level.

The chairperson of a Gram Panchayat shall be elected in such manner as provided by law, and of a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members.

Three tier of Panchayati Raj System India:-

  1. Village Panchayat
  • In the structure of Panchayati Raj, the Village Panchayat is the lowest unit
  • The Panchayat primarily consist of five representatives elected by the people of the village
  • The members of the gram panchayat are elected for a period of five years by the members of Gram Sabha
  • Only the people who are registered as voters and do not hold any office of profit under the government are eligible for election to the Panchayat
  • There is also provision for co-option of two women and one member of the Scheduled Castes and Scheduled Tribes, if they do not get adequate representation in the normal course
  • As a body, the Panchayat is accountable to the general body of the village known as Gram Sabha, which meets at least twice a year
  • Every Panchayat elects a President or Sarpanch and a Vice-President or Upsarpanch. In some states, the Sarpanch is directly elected by the Gram Sabha either through the show of hands or through secret ballot while in other states the mode of election is indirect
  • The Sarpanch is an ex-officio member of the Panchayat Samiti and participates in its decision-making as well as in the election of the Pradhan and of the members of various Standing Committees.
  1. Panchayat Samiti
  • The second tier of the Panchayati Raj, the Panchayat Samiti is the single representative of vigorous democratic institution to take charge of all aspects of development in rural areas
  • Usually, a Panchayat Samiti consists of 20 to 60 villages depending on area and population. The average population under a Samiti is about 80,000, but the range is from 35,000 to 1, 00,000
  • Generally, the Panchayat Samiti consists of about 20 members elected by and from the panchayats falling in the block area and two women members and one member each from the Scheduled Castes and Scheduled Tribes to be co-opted, provided that they do not get adequate representation otherwise
  • The President of the Panchayat Samiti is the Pradhan, who is elected by an electoral college consisting of all members of the Panchayat Samiti and all the Panchas of the Gram Panchayat falling within the areas. The Up-pradhan is also elected
  • He ensures the implementation of the decisions and resolutions of the Samiti and its Standing Committees
  1. Zilla Parishad
  • Zilla Parishad is the top-most tier of the Panchayati Raj System
  • Generally, the Zilla Parishad consists of representatives of the Panchayat Samiti; all the members of the State Legislature and the Parliament representing a part or whole of the district; all district level officers of the Medical, Public Works, Public Health, Agriculture, Veterinary, Engineering, Education, and other development departments
  • There is also a provision for special representation of women, members of Scheduled Castes and Scheduled Tribes provided they are not adequately represented in the normal course
  • The Chairman of the Zilla Parishad is elected from among its members
  • The Zilla Parishad, for the most part, performs co-ordinating and supervisory functions. It coordinates the activities of the Panchayat Samitis falling within its jurisdiction. In certain states, the Zilla Parishad also approves the budgets of the Panchayat Samitis.

Judicial Powers

Panchayats decides the minor & minor criminal nature cases such as assault, theft of property, mischief. With the emergence of panchayats the people who have any dispute did not need to go to the district headquarter or district & session court to solve their dispute as the panchayats have the power to give the decision on the matters which are referred to them. They can impose a fine up to Rs. 200/-  as well as they can impose a fine up to Rs. 25 openly those who defy its orders. Normally the decision of the Panchayat is final but an appeal can be made to the Court of District Magistrate with its prior sanction. In criminal cases, the Panchayat can only impose a fine and it cannot sentence anybody to imprisonment.

Procedure in Nyaya Panchayats

The procedure followed by village panchayats is very simple and informal. The procedure codes like Code of Civil Procedure, Criminal Procedure Code and Indian Evidence Act apply to the panchayats, but they have the power to call witnesses and the parties for recording their evidence or producing any relevant document or fact. Unlike courts, they have the power to investigate the facts to find out the truth and at the same time, they have the power to punish for its contempt. Lawyers cannot appear before panchayat in any of its proceedings.

Duration of Panchayat:

Every Panchayat shall continue for five years from the date of its first meeting. But it can be dissolved earlier in accordance with the procedure prescribed by State Law. Elections must take place before the expiry of the above period. In case it is dissolved earlier, then the elections must take place within six months of its dissolution. A Panchayat reconstituted after premature dissolution (i.e., before the expiry of the full period of five years) shall continue only for the remainder of the period. But if the remainder of the period is less than six months it shall not be necessary to hold election.

Constitutional Status of Village Panchayat

In the case of Village Panchayat Calangute vs Additional Director of Panchayat the apex court of the country held that Panchayats can formulate their own programmes of economic development and social justice as they enjoy a Constitutional status. The apex court also stated that the framers of the constitution have visualized that the country’s political democracy lies in the village, therefore, they came up with the formation of Panchayats which is a decentralized form of government where each village has to be responsible for its own affairs.  

Efficacy of Village Panchayat in the era of Lok Adalat

Panchayats are the is the judicial components of the judiciary which form the lowest part of the Judiciary. Panchayat is created for the administration of justice at the local or rural levels.

The Panchayat are formed to solve the dispute of people at the grass root levels that are at the beginning of any dispute, there are many advantages which we have of panchayat over the Lok Adalat that are discussed below:

  • As panchayats solve the dispute at the base level of the people which results in the speedy justice and it saves a lot of time of people and courts as they neither have to go to courts nor have to file a case which saves the time and money of people and of court both.
  • The Panchayats give the opportunity to people to developed their leadership skills in the people as in the panchayats the people who are responsible to give decision are selected by the election process so it gives them the opportunity to develop their leadership skills as once they have been selected they have the huge responsibility of the whole village to provide justice as well as to do work for the welfare of the village.
  • Village panchayats provide the inexpensive and speedy justice to the people of rural areas as they have not to pay any types of fees to anyone to get the justice neither they have to wait for a long time to get to the decision as happen in the court.
  • Panchayats provides the protection to the customs and traditions of the village as whenever anyone violates the customs or traditions of the village they punish them due to which the people do not dare to get punished by the panchayats as it leads to the insult to them as well as to their family. So in this way panchayats help to protect the long practising custom and tradition of the village.

As there are so many valid points for the Panchayats but there are some reasons which lead to the declining effectiveness of panchayats and which results in the emergence of Lok Adalat. The reason which leads to the declining status of village panchayats is discussed below.

  • Sometimes the decision of the panchayats is based on the basis of caste and religion as if the one of the party is from the lower caste or from the opposite caste or from the religion which they are opposed off than most of the decision of the panchayats are against them. In this way, the decision of the panchayats is based on the religious biases.
  • Panchayats are the institutions managed by the laymen. They do not have much idea of the law due to which sometimes they can give the decision which can be against the fundamental right of the individual.
  • Justice provided by them is based on caste, community, personal or political considerations. Therefore, chances of injustice cannot be ignored.
  • The people who act as a judged in the panchayats are corrupt or sometimes they are cruel against the people of the same village which directly affect the judgment or decision.

Lok Adalt is the form of Alternative dispute resolution which came into effect in the year 1987 Lok Adalat has emerged one of the best forms of ADR in India. It has some advantages which have made it the most favoured form of ADR. The advantages which the Lok Adalat have are been discussed below:

  • Lok Adalat does not charge any fees in the form of court fees from the people who approach lok Adalat for the settlement of dispute. Which make it free for the people to get the justice.
  • Secondly, the decision of the lok adalt is delivered on the same day which saves the time of the party as they do not have to wait for a long time to settle the dispute.
  • The person who are sitting as a judge to give the decision are basically the retired judges of the courts and also some of them are renowned personality in the field of law. So they give the decision which does not affect the individual fundamental right.
  • The judges of lok Adalat give the decision without any biasness on the behalf of the party appearing before them.
  • Their judgements are binding on the party and the judgment of the lok Adalat have the same status as of the decision of the Trial Court or lower court and the decision of lok Adalat cannot be appealed in any court.

Conclusion

So we can see that the lok Adalat have many advantages over the panchayat as their decision is binding on the parties and the decision is also given by properly following the procedure and by seeing every aspect of the law. Their decision is equivalent to decision of the lower court and is binding on the parties to follow and non-compliance of the order will result in serious action to be taken by the court. Whereas such things do not apply to panchayats as their decision is not binding on the parties as well as the decision does not have any value in the eye of law and can be challenged and most of the decision is biased decision and vague which can be against the fundamental rights of the individuals which we can see in many decision of the panchayats like once the panchayats have given the decision that the person has have raped a girl have to marry that girl and one of the panchayats of Maharashtra regarding the virginity test of the bride on their first night of marriage by putting the white bed sheet on the bed, such types of the decision directly affect the fundamental right of the individual whereas such types of decision is not been given in the lok Adalat their decision is not vague.

This is the main reason due to which the effectiveness of the panchayats has been decreased in the recent years and people faith have increased on the Lok Adalat to get the justice quickly, free of cost and without any biasness.

References

  1. http://www.theholidayspot.com/indian_independence_day/voice_of_freedom.htm
  2. https://www.planetizen.com/node/50694
  3. http://www.yourarticlelibrary.com/essay/rural-development-in-india-before-independence/31992
  4. http://www.nird.org.in/gpdpmanuals.aspx
  5. https://www.law.cornell.edu/wex/alternative_dispute_resolution
  6. http://www.spea.indiana.edu/icri/terms.htm#ENE
  7. Alternative Dispute Resolution, Practitioners’ Guide, Centre for Democracy and Governance, Washington, 1998
  8. http://www.adrgroup.co.uk/types.html
  9. Park and Burger, Introduction to the Science of Sociology p. 735
  10. ADR – Its Facets, by Snajay Kishan Kaul. J. Chairman, Overseeing Committee Delhi High Court
  11. https://nalsa.gov.in/acts
  12. https://www.bankexamstoday.com/2017/12/lok-Adalat-legal-services-authority-act-1987.html
  13. https://www.importantindia.com/12422/function-of-lok-Adalat/
  14. http://www.legalserviceindia.com/issues/topic1332-section-22-powers-of-lok-Adalat-or-permanent-lok-Adalat.html
  15. https://www.srdlawnotes.com/2017/03/powers-of-lok-Adalats-or-permanent.html
  16. https://indiankanoon.org/doc/1472158/
  17. http://www.yourarticlelibrary.com/politics/the-three-tier-system-of-panchayati-raj-in-india/4827
  18. https://www.lawctopus.com/academike/concept-village-panchayat-constitutional-analysis/
  19. https://www.dnaindia.com/india/report-panchayats-enjoy-constitutional-status-sc-1710148
  20. https://indiankanoon.org/doc/63349732/
  21. https://www.legalbites.in/nyaya-panchayats/
  22. https://brainly.in/question/2363591
  23. https://www.srdlawnotes.com/2017/01/what-are-benefits-of-lok-Adalat.html?m=1
  24. http://www.legalserviceindia.com/articles/lok_a.htm

Critical Analysis on the Judgement of Adultery – Akar srivastava and Monica Chhabra

Critical Analysis on the Judgement of Adultery

Author: Akar Srivastava

Co-author: Monica Chhabra

Volume 1 Issue 1

January 2019

ISSN: Applied for…

1. Introduction

‘Marriages are made in heaven.’ Over centuries this has been believed and marriages have always been considered as the building block of the society and its sanctity has been accepted and respected in all societies and across cultures. But the cosmopolitan societal environment and approach, the excessive tendency on capitalism, the breakdown of family bondage, lack of skills and motivation to solve the problems of conjugal life drive the spouses to drift away from their marriage and start searching for a new partner in whom they find happiness and satisfaction. Though the laws of India uphold the sacredness of the matrimonial tie and punish the intruders, there remain many lacunas and loopholes. The penal provision of adultery is one of them. 

The objective of the article is to achieve the following goals:

  1. To analyse the judgement of Joseph Shine v. Union of India
  2. To address such debated issue of exemption from the legal point of view and under the present social context.

General definition

Generally, adultery refers to the illegitimate relationship with the opposite sex; sexual intercourse between individuals who are not married to each other. The term ‘adultery’ has its origin in the Latin term ‘adulterium’. The term comes from the words ‘ad’ (towards) and ‘alter’ (other).[1] At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse. Under the Common Law, the crime of fornication consisted of unlawful sexual intercourse between a married woman and a man, regardless of his marital status is adultery. Almost every religion condemns it and treats it as an unpardonable sin.2 however, this is not reflected in the penal laws of countries. 

The question of the constitutional validity of Section 497 of the Indian Penal Code and Section 198 of the Criminal Procedure Code has arisen before the Supreme Court multiple times.

In the case of Yusuf Abdul Aziz v State of Bombay[2], the appellant was being prosecuted for adultery under Section 497 of the Indian Penal Code. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional validity of the provision, under article 228. The case was decided against the appellant by observation was made by Justice Chagla about the assumption underlying Section 497:

“Mr Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that the offence is only cognizable with the consent of the husband emphasizes that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are passed, when women were looked upon as property by their husbands.”

A narrow challenged was addressed before the Court. The challenge was only to the prohibition on treating the wife as an abettor. It was considered violative of Article 14 of the Indian Constitution. However, the court held that this provision was saved by clause (3) of Article 15 of the Indian Constitution which provides for special provisions in the case of women and children.

The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency. Thus, this section was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become evident when the provision is considered as a whole. A person engaging in sexual relations with the wife of another man won’t be charged for adultery if the husband of the wife so involved gives his consent. This clearly indicates how women are objectified in the hands of their husbands.

In one more case, Sowmithri Vishnu v Union of India[3], three grounds of challenges were kept in front of the court. First, Section 497 gives the right to the husband to bring an action upon the adulterer but does not give this right to the wife to prosecute the woman with whom her husband has committed adultery. Second, the section does not give the wife whose husband has committed adultery to prosecute him and third, it doesn’t cover cases in which the husband has sexual relations with an unmarried woman.

At first blush, it may appear as if it is beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in a kind of romantic paternalism which stems from the assumption that women are like chattels of men. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other hand, it does not protect the other woman. In this judgement, it was said by Chandrachud, CJ that by definition, the offence of adultery can be committed by a man and not by a woman.

The task of making this provision gender neutral is the job of the Legislative. The judgement says that:

“…It is commonly accepted that it is the man who is the seducer and not the woman. The position may have undergone some change over the years, but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to make note of the ‘transformation’ which the society has undergone.”

This case fails to deal with the actual problem, i.e. the aspects of constitutional jurisprudence which have a bearing on the validity of Section 497.

In another case, V Revathi v Union of India[4], the court noted that this section does not allow either the husband of the offending wife to prosecute her nor does it permit the wife of the offending husband for being disloyal to her. It was held that since neither of the spouses can bring a charge against their disloyal and offending spouses, therefore, this section doesn’t discriminate on the ground of sex.

2. ISSUES

Whether Section 497 IPC is unconstitutional?

The petitioners wanted certain problems with Section 497 to be addressed:

  • Adultery law is made gender neutral. This is because the law calls for the man to be punished in case of adultery, but no action is suggested for the woman
  • As per Section 497, a woman cannot file a complaint against her husband for adultery because there is no such legal provision.
  • Women are treated as an object under the adultery law because according to section 497 if the husband agrees, the act is not a crime.

3. JUDGMENT

In December 2017, Joseph Shine filed a petition challenging the validity of Section 497. A three-judge bench, headed by the then-Chief Justice of India, Dipak Misra, had referred the petition to a five-judge Constitution Bench, admitting that the law does seem to be archaic.

While hearing the matter previously, the court had observed that the law seemed to be based on certain “societal presumptions”. In four separate but concurring judgements, the court struck down the law and declared that the husband cannot be the master of his wife. The five-judge bench comprised Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra.

  • The judgement held the following things –

3.1SECTION 497 IS ARCHAIC AND IS CONSTITUTIONALLY INVALID.

Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Equality is subverted by lending the sanctions of the penal code to a gender-based approach to the relationship of a man and a woman. Sexual autonomy is a value which is an integral part and falls within the ambit of personal liberty under Article 21 of the Indian Constitution. Along with other things, it is very important to recognise the expectations one has from a relationship and to acknowledge them. One of these expectations is that each will provide the same element of companionship and respect of choices. Respect for sexual autonomy is established only when both the spouses treat each other with equality and dignity.

This section is a denial of substantive equality in that it reinforces the notion that women are unequal participants in a marriage; incapable of freely consenting to a sexual act in a legal order which regards them as the sexual property of their spouse.

In this way, it is violative of Article 14. It is based on gender stereotypes and violates the non-discrimination clause of Article 15. Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, it clearly offends Article 21 of the Constitution.

3.2 SECTION 497 TO NO LONGER BE A CRIMINAL OFFENCE.

A crime is something which is committed on the society as a whole, while adultery is more of a personal issue. Treating adultery as a crime would tantamount to the State entering into a real private realm. Adultery doesn’t fit into the concept of the crime as that would otherwise invade the extreme privacy sphere of marriage. However, it continues to stand as a civil wrong and a grounds for divorce. What happens after adultery is committed should be left to the husband and wife to decide as it is something which should only involve their personal discretion. It is difficult for the court to construe the different circumstances which have to lead them to this stage. Hence, declaring adultery as a crime would somehow creep injustice into the system.

3.3A HUSBAND IS NOT THE MASTER OF HIS WIFE.

The judgement places reliance on the fact that women should not be considered as the property of their husbands or fathers, for that matter, anymore. They have equal status in society and should be given every opportunity to put their stance forward.

3.4 SECTION 497 IS ARBITRARY:

Throughout the judgement, it was pointed out that the nature of Section 497 is arbitrary. For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his wife have an affair with someone else. Rather, the judgement points out, it serves to preserve the ‘proprietary rights’ a husband has over his wife. Moreover, the wife cannot file a complaint against her husband or his lover. There are no provisions to deal with a married man having an affair with an unmarried woman or a widow.

4. ANALYSIS

In the instant case, Supreme Court struck down Section 497 IPC. With a single stroke of a pen, the Court has added its bit to endanger the institution of marriage. Winds have been cast to dilute the institution upon which the strong foundation of the Indian Society rests. The deterrence effect has been outrightly blown. This cessation will lead to rapid profiling in the crimes related to adultery. With absolute rights come absolute consequences. Hence, this verdict can lead to sexual anarchy. Adultery is no longer a criminal offence now. It is just a civil wrong for which divorce is the remedy.

A moral wrong can never be a legal right. The reasons are unconvincing and hence this cannot become Lex Loci. If Adultery is not a crime or a wrong, then obtaining a divorce on this ground would be an unending chase.

Criminal law is a guardian of the historical roots and moral principles of the society.

“If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter-narrative would always exist.”

In State of UP v. Deoman Upadhyaya[5], Constitution Bench of the Supreme Court observed:

“In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced, it has to be remembered that the legislature has to deal with practical problems. The question is not to be judged by merely enumerating other theoretically possible situations to which the statute may have been, but has not been, applied.”

Even the Legislative intent was to protect the women. That’s why the Law Commission while drafting the new Penal Code in 1847 rendered only the male offender liable. Moreover, it is for the legislature to decide what is a crime and what is not.

Adultery, though an intervention in the right to privacy, wrecks the life of another person. It doesn’t only affect the offending spouses and the victim spouses but also takes down with it the children and the families associated. With rights come duties and absolute rights destabilise a society. The children will be left in a lurch with divorce as the only option left. The present judgment does not provide for any remedies for the children born out of such adulterous marriages.

Section 497 IPC acted as a deterrent so that the adulterer does not commit the same crime again. The law didn’t fail to prevent adultery, but the enforcement did. Just because of this reason, it cannot be decriminalised. A whole house can collapse with the collapse of a single brick. Crime rates in rape, murders etc. are also increasing rapidly but these are not decriminalised relying on this argument.

India is still a semi-feudal and conservative nation. So adjudication merely on the notions of the western countries is not possible. Many factors concerning the socio-economic order of the country need to be considered.

It was well observed by Justice Frankfurter in Trop vs Dulles[6]:

“All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune from this human weakness. It must always be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint on it is self-restraint. The Court must observe fastidious regard for limitations on its own powers, and thus preclude the Court giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit on the wisdom of Congress or the Executive Branch.”

As observed by the Supreme Court in Govt of Andhra Pradesh vs P Laxmi Devi[7], “Adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges preferences “, and as held in State of Bihar vs Kameshwar Singh[8], “The legislature is the best judge of what is good for the people by whose suffrage it has come into existence.”

The instant consequences will be that the suicide rates in marital relationships will increase now and then prosecution under Section 306 relating to abetment of suicide will take place.

It would have been balanced if the section was amended instead of being struck down. The exclusion of women in this provision “delegitimizes the sexuality of women by careful erasure of it”.

Instead, Section 198 of Code of Criminal Procedure, 1973 should have been struck down as it prevents wives from filing complaints against adultery.

As rightly cited by J. Indu Malhotra in her judgment that “Women are no longer invisible to law, and they no longer live in the shadows of their husbands.”

  1. Recommendations for Reform by Law Commission

The Fifth Law Commission of India, as early as in 1971 recommended that the exemption of the wife from punishment for committing adultery to be removed from S. 497 IPC. It also felt that imprisonment for a term up to five years (stipulated in Section 497) was “unreal and not called for in any circumstances”. The recommended Section 497 reads as:

“497. Adultery.—If a man has sexual intercourse with a woman who is, and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

However, the Joint Select Committee substituted the above revised Section 497 by the following: “Whoever has sexual intercourse with a person who is, and whom he or she knows or has reason to believe to be the wife or husband as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape, commits adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

“Inspired by the spirit of equality the Fifth Law Commission and the Joint Select Committee have thus shown their inclination to the equality of the sexes by recommending equal culpability for the “man” as well as the “woman” for committing adultery. Surprisingly, however, for reasons best known to them, neither the Law Commission nor the Joint Select Committee has shown any sensitivity to the equally pertinent traditional proprietary rights of the “husband” over his “wife” and to the subordination of woman in the Indian family institution. Mrs Anna Chandy, one of the distinguished Members of the Fifth Law Commission, voicing her reservations about the revised Section 497 suggested by her other colleague Law Commissioners, observed[9]:

“The wife being considered the husband’s property, the present provision reserves for the husband the right to move the law for punishing any trespass on it, while not giving the wife any corresponding right to complain against any transgressions on the part of or relating to her husband. Perhaps to make amends for this harsh discrimination, the present section provides that the wife should not be punished along with the trespasser. The removal of this exemption clause does not cause damage to the basic idea of the wife being the property of the husband. On the other hand, it merely restates the idea and adds a new dimension to it by making not only the trespasser but the property also liable to punishment. This, as noted before, can hardly be considered a progressive step.”

It is pertinent to note that recently in 1997 the Fourteenth Law Commission, in its 156th Report[10] on the Indian Penal Code, endorsed, with minor modifications, the proposal for reform recommended by the Joint Select Committee. It also stressed that changes suggested in its revised Section 497 IPC be made in Section 198(2) CrPC. The Apex Court, curiously, did not attach any judicial significance to the proposal for reform recommended by the Fifth Law Commission and of the Joint Committee approved by the Rajya Sabha. It could have justifiably relied upon these proposals to inject gender equality in the adultery law. But it preferred to assert, time and again, that it is for the legislature to take cognizance of the social “transformation” and the changed values as they involve questions of “policy of law”.

6. Proposal for Legal Reform:

In most part of the European Union, including England, Austria and Italy adultery is not considered to be a criminal offence anymore.[11] In the United States of America the law of adultery varies from one State to another; however after the decision in Lawrence v. Texas[12]by U.S. Supreme Court the validity of adultery law is under debate.48 Though Islamic countries like Afghanistan, Nigeria, Pakistan, Yemen, Sudan, Saudi Arab and Iran have provisions for the death penalty as the maximum punishment for adultery but the concept is deeply rooted in the traditional, religious view of Shariah.49

However, the penal law of adultery in India is grounded on the one-and-a-half century old caste-based stratified “social setting” in the context of the traditional conservative property-oriented familial ideology and sexual mores. It is also premised on a few outdated and moot assumptions of sexuality, sexual agency and unequal mutual marital rights and obligations of the spouses.[13] It, in the ultimate analysis, unmistakably intends to protect the rights of the husband and not of the wife.[14] It is also bridled with deep-rooted obsolete assumptions predominantly premised on gender discrimination and the wife’s sexuality. 

Considering the social, historical and religious norms, section 497 should not be removed from the PC but it is recommended that both the man and the wife should be made guilty as there is no valid justification “for not treating the guilty pair alike”. The punishment for adultery should also be scaled down from the maximum punishment from five years to two years as the existing punishment is “unreal and not call for in any circumstances”. The recommended section is as follows: 

“Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to believe to be the wife or husband as the case may be, of another person, such sexual intercourse not amounting to the offence of rape, commits adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”

7. Conclusion

Within these 150 years after the codification of the Penal Code, there has been a huge change in the society; women are no longer considered to be the chattel of her husband. During the post-PC period, a number of Acts have been enacted to relieve women from the hitherto traditional system of seclusion and subordination and to assure them a status equal to men in every walk of life. Women are taking part in all activities of the development of the country and the social approach to a woman has changed to a positive notion. Such a law in the 21st century undoubtedly seems to be inconsistent with the modern notions of the status of women and the constitutional spirit of gender equality. 

In view of the emerging jurisprudence on Articles 14, 15 and 21 of the Constitution and changed social conditions, so Section 497 of the Indian Penal Code, 1860 as unconstitutional being unjust, illegal and arbitrary and violative of fundamental rights and to be declared as unconstitutional.

It has been said in Latin maxim, “Lex Injusta Non Est Lex,” that an unjust law is no law. It is contended that statute must be enacted justly because reasonableness and non-arbitrariness are the hallmarks of a constitutionally valid law.

Section 497 of IPC are antiquated, unreasonable and arbitrary making them unjust and as contended above ‘unjust law is no law’.

[1]Jovan Payes, “Adultery and the Old Testament”, accessed 12.06. 2013

2 Encyclopaedia Dictionary of Religion (The sisters of St. Joseph of Philadelphia 1979) 

[2]1954 SCR 930.

[3]1985 Supp SCC 137

[4](1988) 2 SCC 72

[5]1960 AIR 1125

[6](1958) 356 US 86

[7]2001 AIR para 54

[8]1952 1 SCR 889

[9] Note by Mrs Anna Chandy, Law Commission of India, Forty-second Report: Indian Penal Code, supra fn 2

[10] Law Commission of India, One Hundred Fifty-sixth Report: Indian Penal Code (Government of India, 1997), para 9

[11] Ruth A. Miller, The Limits Of Bodily Integrity: Abortion, Adultery, And Rape Legislation In Comparative Perspective at 122-23 (Ashgate 2007)

[12] 539 U.S. 558.

[13] K.I. Vibhute “Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective (2001) 6 SCC (Jour) 

[14] Alamgir v. State of Bihar, AIR 1959 SC 436 (439).

Critical Study on Decriminalization of Adultery – Apratim De

Critical Study on Decriminalization of Adultery

Author: Apratim De[1]

Volume 1 Issue 1

January 2019

ISSN: Applied for…

Authors Note:- In this research paper the author has tried to discuss the laws related to adultery from the past, the latest amendments and had tried to critically analyze the viability of the decision passed by the apex court on the same.

“ Adultery is not always the cause of an unhappy marriage but sometimes it is also the result of an unhappy marriage.”

Yes, u heard it right. Adultery is not always the cause for the failure of marriage but sometimes it is the result of a failed marriage. Most of the times people fail to understand this or are not able to move out of such a marriage due to several factors among which most of the evident ones are the family pressure and the societal pressure and thus this is where people start indulging in acts like fidelity and adultery.

Introduction

Law is an instrument of social change. It is a way by which the people who are oppressed can get justice from the oppressor and also it helps to maintain an equilibrium in the society by preventing the people from turning into barbaric and thus being inhuman.

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall

[not]

[4] be punishable as an abettor.” [2]

Historical Background

The laws related to adultery were introduced by in 1860  of the Indian Penal Code. According to Lord Macaulay, an Indian Woman is a holy cow who can never do any wrong. It is the man who commits all the wrong. Moreover, he believed that the women should neither be punished for committing adultery as this would not only be a threat to the holy sanctity of the women but also it would lead to a breaking of the institution of marriage thus leading to family disorganization at large.

Ingredients

Earlier when Section 497 was in force the following were the essential ingredients of the adultery:-

  • There should be sexual intercourse between married women and a man.
  • Such an act should be done without the consent of the husband.
  • Such sexual intercourse must not amount to rape.

NOTE:- It has to be understood that adultery can only occur when there is sexual intercourse between a married woman and a man without the consent of the husband but with the consent of the wife. Also if the sexual intercourse takes place with the consent of the husband then it would not amount to adultery.

Status of laws related to adultery in other countries of the world

  1. Philippines- In Philippines commission of adultery is a punishable offense. Here if a woman is found to have sexual intercourse or illicit sexual relations outside her matrimonial home then this would lead to an imprisonment of six years both for the wife and her partner when it is proved by the husband. But on the other hand, a husband can be charged for adultery only if the wife is able to prove that he had sexual intercourse under ” scandalous circumstances” with his concubine or had lived together with his mistress in any other place. So for this, the husband can be imprisoned up to four years and a day while his partner would be banished but would face no jail.
  2. China:- In China adultery is not an offense but can be used as a ground for divorce under Article 46 (3) of Marriage Laws of  People’s Republic of China. Also under Article 46, the aggrieved party can only claim for compensation against the wrong done to them.
  3. Saudi Arabia:-In Saudi Arabia practice of adultery is strictly prohibited and this is a punishable offense. Punishments include fines, arbitrary detention, imprisonment, flogging and in extreme cases, the death penalty.
  4. Pakistan:- In Pakistan, adultery is a crime under the Hudood Ordinance, promulgated in 1979. The controversial law mandates a woman making an accusation of rape to provide four adult male eyewitnesses of good standing (tazkiyah-al-shuhood) to “the act of penetration” as evidence to avoid being charged with adultery herself.[3]
  5. South Korea:- In South Korea adultery has been decriminalized in 2015. The law related to adultery which was invoked in 1953 was finally revoked by a majority decision of 7:2. Earlier under the old laws, the spouses could have been imprisoned for three years for committing adultery.
  6. Australia:- In Australia adultery is not an offense. Here under the federal laws which were enacted in 1994 sexual conduct between consenting adults is their personal issue throughout the country irrespective of their marital status. Moreover, adultery is abolished as a ground for divorce in Australia.
  7. United States:-  This is among one of the industrialized countries of the world which have criminalized adultery as an offense. In U.S. laws varies from one state to another like for example in the states of West Virginia, Colorado, New Hampshire and Massachusetts laws related to adultery have been repealed but in other states of U.S adultery still stands to be a punishable offense.

Causes of Adultery[4]

Some of the causes of adultery are as follows:-

  1. Internet:- Internet is one of the major reasons for causing adultery. In this era of globalization internet has brought people so close to one another but at the same time, it has negative aspects as well. Like nowadays with the help of the internet and social media it has become very easy for people to commit adultery. Like for instance, there are many online dating sites which help the individuals of opposite sex to meet one another without asking or verifying the details about them.
  2. Avoiding confrontation:-  This is another reason for causing adultery. Nowadays the couples rather than trying to clear their differences try to avoid doing so and as a result, try to find out their emotional and mental comfort outside the matrimonial home. Like nowadays it is very common to see that a spouse has found a coworker with a shoulder to lean on, so this goes without saying that these co-workers play a major role in these illicit relationships.
  3. Boredom:- Many a times boredom leads to the beginning of the affairs or such type of illicit relationships. As in this competitive world, many individuals often fail to maintain the balance between their personal life and their professional life. So many a times it is seen that to secure themselves financially individuals try to give more time to their professional life rather than their personal life, as a result, this amounts to boredom where either of the spouses or sometimes both tries to find the excitement in the relationship outside the matrimonial home.
  4. Failed Marriages:- Failed marriages is also a major reason for adultery. Very often it has been seen that people are forced to do marriages either out of family pressure or society as a result of which in the later stages it becomes very difficult for the spouses to carry on the marriage further. But due to societal pressure, many times the couples rather than bringing an end to such a marriage tries to carry on the marriage further but tries to find out the mental and physical solace outside their matrimonial home.
  5. Unhappy sex life:- Many times unhappiness in sex life is also a major reason for adultery. It has been seen that the spouses are involved in illicit sexual relationships outside their matrimonial home because they are not happy with their married life.
  6. Living Apart:- Living Apart from each other for a long period of time is also a major reason for adultery. Nowadays it is seen that living apart from each other for job has become a common affair. So many a times due to boredom, loneliness and these long distances becomes a reason for causing adultery.

                  Consequences of Adultery:-

  1. Divorce:- One of the major consequences of adultery is divorce. Though the husband and wife are able to tackle the pain of divorce like most of the adults are able to do but what about the children. Most of the times the children are not able to do the same because most of the times it has been seen that the breakdown of the marriage has adverse effects on the lives of the children thus affecting their education, health, personality etc.
  2. Suicide:- One of the adverse consequences of adultery is suicide. Many a time it has been seen that adultery often leads to commission of suicide by many. In fact, even after decriminalization of adultery in India, many cases of suicide were reported as the people had given up on their lives. As because for many it becomes difficult to believe that their loved ones can cheat them to such an extent.
  3. Family Disorganization:- Ultimately adultery leads to family disorganization. It breaks down the trust, bond and the institution of marriage between the spouses thus leaving behind broken families, pain and fear among the members affecting the children the most.
  4.  Physical and Mental Agony:- Adultery often leads to causing physical and mental pain among the spouses. Many a time it is seen that the wrongdoer tries to suppress the other spouse by torturing them both physically and mentally. Also, most of these incidents remain unreported either because of the societal pressure or due to the pressure of the family.

      Critical Analysis of laws related to adultery in India

Recently Section-497 of IPC which earlier used to deal with the laws related to adultery has now been decriminalized after the apex court has passed a unanimous judgment on the same. Also while reading the judgment the former CJI of India Justice Dipak Mishra said that “Adultery cannot and should not be a crime. It can be a ground for a civil offense, a ground for divorce,” [5]One of the important observations which the Supreme Court had made while dealing with the case was that the current law on adultery objectifies women and makes them inferior to men thus making them lose their individuality. As Justice D.Y. Chandrachud one of the five members of the ruling bench has rightly said Physicality is an individual choice,” The law was based on the concept that a woman loses her individuality once she is married, he said, adding, “adultery is a relic of past”.

So more or less the laws related to adultery have been gender biased as it been rather than providing any relief to the women had worsened the situation for them. As because many times it has been seen that in most of the divorce cases the husbands have tried to use adultery as a ground to exempt themselves from paying maintenance to their wives. Also, the Supreme Court has observed that decriminalizing of adultery does not mean that it gives license to carry out extramarital affairs. Rather if adultery is found to be a reason for commission of suicide by the spouses then it would lead to the prosecution of the other spouse committing the same.

Also, this section is gender biased as because under the following section a wife cannot file a suit against the women with whom her husband who is involved in adultery as because under this section only the husband can file a suit against the male partner of his wife with whom she is involved in adultery. So, as a result, this creates inequality between both of them.

As it was observed in the case of  Revathi v. Union of India where the court had observed that a woman cannot file a suit for adultery as because firstly in the eyes of law a woman can never do such a wrong it is the men who always do so. Moreover, the laws of adultery were drafted with the view that the women can never do any wrong it is the men who do so. As Lord Macaulay had once said that Indian women are a holy cow. Also, the framers of the code believed that a husband should never prosecute his wife for adultery as because it would not only lead to a breakdown of the institution of marriage but would also lead to family disorganization.

Conclusion:-

So now as Section-497 of IPC has been decriminalized so it means that now commission of adultery is no longer a punishable offense unless it leads to abetment of suicide. But the laws related to adultery in India has always been a part of controversy because of many factors like firstly it is gender biased then secondly under the previous laws only the husband can prosecute and not the wife. As a result, this had lead to the objectification of the women and had reduced them to a mere object rather than being an individual. Also, the older laws were in conflict with the personal laws of many communities where polygamy is allowed. So, as a result, the previous laws on adultery were not sufficient and needed an amendment rather than eliminating it totally from the statute book.


[1]  B.A.L.L.B 3rd yr New Law College, Bharti Vidyapeeth Deemed to be University Pune.

[2]Indian Penal Code“. Section 497, Act of 1860

[3]  https://indianexpress.com/article/india/india-decriminalises-adultery-a-look-at-other-countries-where-it-is-still-a-crime-or-not-5376598/

[4] https://www.divorcemag.com/blog/most-common-causes-of-infedility-in-a-marriage/he

[5] https://www.reuters.com/article/us-india-court-adultery/indias-top-court-decriminalizes-adultery-in-landmark-judgment-idUSKCN1M71FW

The Heritable Component of Crime and the Genetics of Justice – Faizan Anwer.

Title: The Heritable Component of Crime and the Genetics of Justice

Author: Mr. Faizan Anwer

Volume 1 Issue 1

January 2019

ISSN: Applied for…

Abstract

We are living in a multidisciplinary era. Since the dawn of civilization, every field of study have progressed at its own pace and there have been continuous research and findings at different levels of different diversified fields. There was a time when shooting off of various sciences was an essential phenomenon for inculcating expertise and advancement within a particular area of study. Now all these branches are converging and interconnecting and forming nodes with other fields. Legal studies are no exception to this. In this article, we will try to put some light on criminology with the glasses of biology.  The phenomenon of crime integrates multiple factors including human behaviour, psychology, sociology, parenting, forensics, and more recently genetics. The genes present in our very cells may be the causal agent for criminal behaviour, but it’s not a tool to escape from the punishment of one of the most heinous crimes done by most advanced species, Homo sapiens present on the face of the earth. In the advanced modern societies, government prepare the databases of DNA fingerprints of the evil souls of the society. There have been detailed discussions on eugenics and epigenetics. One of the interesting facts is that capital punishment may be one of the methods of implementing eugenics in the core of civilization. The phrase of nature and nurture is very analogous to genetics and epigenetics in this scenario. We all are the products of genetic composition and socioenvironmental factors. Does this rob our free will or does this make us liable?

Introduction

As the progressive advancement in the field of biology especially bioinstrumentation is taking place, the probability of increasing the accuracy will also increase as a result of which the admissibility of all these biology based evidence in the court will have greater chances. In family court matters, polygraph evidence has been accepted by the courts in certain cases although it has faced continuous rejection as evidence in criminal trials.

Genetic structure, neurotransmitters, hormones, central nervous system, autonomic nervous system and environmentally induced genetic factors work in synchronization to regulate and control the human behaviour and psyche. The correlation between biology and crime dates back to 1876 when an Italian physician Cesare Lombroso [1] published his view on the doctrine of evolutionary atavism and since then this correlation has been presented in different ways and in different magnitudes. The causal genes for correlation between the crime and genetics have been identified as MAOA gene and a variant of cadherin 13. Due its relevance to crime MAOA is also known as “The Warrior Gene”. MAOA (Monoamine Oxidase A) gene codes for an enzyme that helps in breaking down of various neurotransmitters including serotonin, dopamine and noradrenaline. These neurotransmitters are responsible for impulsive behaviour. The correlation between aggression and neurotransmitters has been found in both animals and humans.

The very important question to raise is that, Is behaviour voluntary or involuntary?

If the behaviour is an involuntary phenomenon then how do we do justice to criminals like murderers? It is very possible that in certain situation behaviour is voluntary and in some other situations, it may be involuntary. How do we identify the involuntary behaviour and what should be the legal aid for such behaviour?

A very pertinent use of Biosciences have been made for coding DNA identification act in foreign countries for identifying the accused and it is very much feasible that in near future biological evidence shall be used for convicting criminals although it requires a very extensive and exhaustive research to establish a significant correlation between the violent behaviour and biological factors.

The journey of this interrelation was given a new direction by Raine through his book

The Anatomy of Violence: The Biological Roots of Crime”. This book has changed the notion of free will, criminal responsibility and justice upside down.

In legal language crime comprises of both an act and a mental element (mens rea) and this mental element is controlled by a plethora of variables. These variables can be broadly classified as biological variables including genetic factors and environmental variables including social factors. There are multiple factors associated with the risk of engaging in criminal behaviour namely low resting heart rate, prenatal exposure to smoking, personality factors like impulsivity, family factors (like parental criminality, poor child upbringing practices, low socio-economic status, maltreatment), poor academic performance, peer rejection etc.

Although there is no direct relation between the genetic composition and a particular antisocial behaviour but the likelihood of a person in indulging violent and antisocial behaviour increases due to the presence of certain genes and moreover the social environment plays a very significant role in provoking and activating such genes. Parenting, in my view, plays a very crucial role among social variables affecting the antisocial behaviour. [2] It is the dual effect of criminal gene and activating socio-environmental factors in accomplishing a particular behavioural act. The modern view focuses on the interaction between the biological characteristics and the stimulus of social environment that activates these biological characteristics. The biological criminologist referred these interactions as biosocial theories of crime.

There are various corporations like Ancestry DNA that have collected the samples from millions of people for health and ancestry purposes.  Such companies can share the information of DNA databases of consumer genetics with law enforcement agencies if ordered by the court. The use of such techniques may pose risk to basic human rights like privacy.

The gateway of biological phenomena in the legal system is the expert evidence rule that is only a committee of experts can give green signal since the biological phenomena is out of the circumference of the understanding of the jury.

According to a report of US Bureau of Justice Statistics about 20% of people living in the developed world face the victimization of anti-social and violent behaviour. In another report of the World Health Organization (WHO) from 2002, it is established that anti-social and violent behaviour is one of the leading cause of incomplete well-being, disease, disability and sometimes even mortality. [3]

Epigenetics

Epigenetics simply means the inheritable changes in the traits without any change in the genetic material (genotype) of an individual. There are certain externally mediated modifications in the DNA that may lead to activation and inactivation of particular genes. [4] Usually these modifications are either DNA methylation (addition of methyl group) or histone modification.  For example smoking, an external factor causes DNA methylation and result in cancer. [5] Epigenetics is about the circumstances in the external environment (outside the cells) that may cause the genes to turn off or turn on. Here we are more concerned about behavioural epigenetics where our focus is to understand the externally mediated gene expression and its impact on personality, cognition, mental state and behaviour of the individual. [6]Epigenetics is ubiquitous that is to say every single event (like what we eat? Where do we live? Whom do we interact?) that takes place outside the cell may influence the mechanism of gene expression.

Genetic Structure

What we have got in our genes have nothing to do with our will like someone may have a gene for black hairs and others may have a gene for a blue or green eye. What we are is the outcome of our genetic composition. In various studies, it is found that MAOA and CDH13 gene is present in violent offenders and such genetic profile is absent in non-violent offenders. Genes are responsible for coding proteins and enzymes that may affect the biochemical reactions in the cell, sometimes they may act as promoter or enhancer and sometimes it may act as an inhibitor. This MAOA gene codes for an enzyme monoamine oxidase A which controls the concentration of neurotransmitters (dopamine and serotonin) in the brain. The experts of molecular psychiatry of Finland believe that violent crime could be attributed to the genotypes of the individual. Although these criminals cannot be screened only on the basis of the genes they carry. MAOA also plays a key role in emotional regulation. Monoamine oxidase A (MAOA) genotypic variation has been associated with variation in aggression, especially in interaction with childhood trauma or other early adverse events. [7, 8, 9, 10]

There are various mental disorders like schizophrenia, depression and anxiety that have been linked to genetic factors. Criminal behaviour is also a kind of mental disorder and very much affected by the genetic composition of the individual.

In the Indian penal code, we have come across various liabilities including vicarious liability and joint liability. Now, this is the prime time to think of including the genetic liability in the Indian penal code.

Geneticist should come up with more certain results not only to convict the accused and boosting the justice but also for crime prevention and making the society crime free and a more peaceful place to live in. There are certain behaviour that may induce other behavioural disorders for example attention deficit hyperactivity disorder (ADHD) affects the antisocial and criminal behaviour. This behaviour-behaviour interaction should be considered in crime prevention techniques. One thing should be made very clear is that the genetic factors are not deterministic for criminal behaviour. The genes present in the body simply provide a platform where the crime can flourish if provoked by the certain external stimulus.

We need to put efforts into understanding the underlying mechanism in the development of criminal behaviour.

Gender

Gender-based behaviour is a great issue; many of us will relate this to the issue of equality. But perhaps such people are confused between the equal and identical. The two genders can never be identical but yes equality is a fundamental human right irrespective of the gender. The equality of genders is sometimes exaggerated to an extent of making them identical which is against nature. We should talk about equilibrium rather than equality because the equilibrium between the two genders is about rights, duties and justice while the differences between two genders have been taken into account. Contrarily, equality ignores the differences between the genders and hence sometimes not justified. The two genders have different bodily structures, different genetic composition, a different spectrum of hormones flowing in their blood vessels, and obviously different behavioural instincts. The violent behaviour has been associated with Y chromosome and testosterone in the recent past but the correlation between the two is insignificant. Both the XYY condition and the linkage between the androgen levels and aggression are denied by the majority of the legal community as defence. [11, 12] In People v. Tanner, Millard v. State and People v. Yulk court denied the evidence of XYY. In females, premenstrual syndrome (PMS) have been associated with aggression, violence, distorted psychiatric symptoms and even suicide attempts.

Legal implication

In the United States, Supreme Court has allowed law enforcement to collect DNA of arrested persons but not of convicted persons as result of Maryland v. King. DNA analysis has helped the innocents to get released who were in the prisons since as long as 19 years.

The use of biosciences have found its place in police investigation including DNA fingerprinting and lie detector tests but they are still not accepted as evidence by the courts.

According to reports from FBI, DNA as an evidence have been used in the investigation of about 4 lacs cases and DNA analysis is considered to be an important tool in law enforcement.

There are various techniques like an electroencephalogram (EEG), computerized axial tomography (CAT), position emission tomography (PET), single photon emission tomography (SPECT) and magnetic resonance imaging (MRI) that have been used to study the criminal behaviour. Most of these studies lack the strength of correlation to be used as evidence in the court of justice.

In a 2009 criminal trial in the United States, an argument based on a combination of “warrior gene” and history of child abuse was successfully used to avoid a conviction of first-degree murder and the death penalty; however, the convicted murderer was sentenced to 32 years in prison. [13, 14]The general presumption in criminal law is that behaviour is a consequence of free will although the insanity defence is widely accepted. [15, 16] Following are the medical evidence that have been introduced by the criminal defendants.

Uncontrolled and assaultive behaviour due temporal lobe epilepsy, Brain Disease, Schizophrenia, Mood disturbance caused by extreme stress, Post-Partum Psychosis. [17, 18, 19, 20, 21, 22]

Family and Adoption Studies

Family studies have also given strength to genetic factors especially the twin studies concludes the genetic cause of criminality. The likelihood of criminal and antisocial behaviour among monozygotic twins is higher as compared to dizygotic twins. This observation establishes that the crime is more genetically mediated. On the other hand, the adopted children are separated from their biological parents at an early stage of childhood and maybe influence from the behaviour of the adopting parents. This forms the basis of socio-environmental factors affecting behaviour.

Moffitt suggests that life-course-persistent antisocial behaviour may have an underlying biological basis, whereas adolescent limited antisocial behaviour may be better explained by situational environmental factors. [23]

Eugenics

In eugenics, we try to improve the genetic composition of the human race by employing selective breeding. This can be achieved in two ways, first one is to discourage the reproduction of individuals having the defective genetic material to decline their population and the second one is to motivate the rate of reproduction of individuals having better genetic material thus increasing the population of enhanced genetic traits. The former method is termed as positive eugenics and the latter is termed as negative eugenics. This analogy can be found in the provision of punishments under various penal codes of different countries including the Indian Penal Code. Capital punishment and lifetime imprisonment can be a part of negative eugenics by either declining the criminals in the society or capping the reproduction of individuals having criminal psyche as seen in life imprisonment. After World War II, Japan has been the victim of eugenics when about 25000 citizens were sterilised under the government’s Eugenic Protection Law.[24]

Neurotransmitters

There are multiple studies that show the correlation between the behaviour, psyche and the concentration of neurotransmitters in the brain with a greater emphasis on dopamine, serotonin and norepinephrine. Neurotransmitters are the biochemical that plays a vital role in the mechanism of transmission of electrochemical impulses within the brain and processing of plethora of information present in the brain of the individual. Statistically, significant correlation has been observed between genetic defects in neurotransmitters (dopamine and serotonin) and violent behaviour. It has also been associated with certain drug abusers in various studies. These genetic variations affecting the metabolism of neurotransmitters usually causes impulsive behaviour, and this impulsive behaviour sometimes starts a cascade of various other events in the spectrum of the anti-social and criminal mentality.[25, 26]

Hormones

Aggression is a sexually dimorphic response, in males’ gonadal steroids like testosterone is considered to stimulate social aggression. Statistical evidence say that men are actively involved in violent crimes and the no. of males is higher than females in criminal activity. The correlation between the levels of circulating testosterone and criminal offending is well established. [27, 28, 29, 30, 31]

Environmental Toxins

A plethora of toxins have been discharged into the different layers of environment after the industrialization, these toxins are ubiquitous and present in every fibre of the environment. They may include heavy metals and other synthetic organic compounds and have been found to affect the behaviour of an individual. It integrates the biological with sociological and criminological theories. Biological investigations are based on the fact that criminal behaviour is highly associated with frontal lobe of the brain and is very sensitive to environmental toxins.   [32]

Social Factors

These are the factors that stimulate and activate the biological and genetic factors. In the absence of social variables, biological variables could remain dormant. It is the responsibility of the family and the society as a whole to make the environment that does not interact with the criminal genes. A positive environment may nullify and annihilate the effect the genetic composition of the criminals in the society. [33, 34]

Conclusion

There are various questions that we need to answer i.e. is there a genetic liability of crime? Are we punishing an individual for an involuntary act? Is there an innate tendency towards crime? There is an emergency to develop a legal and ethical framework to address all these issues in order to enhance the justice.

References

1- Wolfgang, Cesare Lombroso, 1835-1909, in PIONEERS IN CRIMINOLOGY

232, 232 (H. Mannheim ed. 1973).

2- Byrd AL, Manuck SB. Biol Psych. 2014:75.

3- Psychological Bulletin Copyright 2005 by the American Psychological Association 2005, Vol. 131, No. 4, 533–554 0033-2909/05/$12.00 DOI: 10.1037/0033-2909.131.4.533

4- https://www.whatisepigenetics.com/fundamentals/

5- https://www.livescience.com/37703-epigenetics.html

6- https://www.whatisepigenetics.com/what-is-epigenetics/

7- http://www.sinobiological.com/MAOA-Monoamine-oxidase-A-Protein-a  2783.html?gclid=Cj0KCQiA28nfBRCDARIsANc5BFACZ7fdpDz7Yd9L4R1hqhYmXM4L8xQKEnrmaCFi5gg4n2gBAozRAmIaAsRcEALw_wcB

8-Huang SY, et al. (2009) Association of monoamine oxidase A (MAOA) polymorphisms and clinical subgroups of major depressive disorders in the Han Chinese population. World J Biol Psychiatry. 10 (4): 544-51.

9- Guo G, et al. (2008) The VNTR 2 repeat in MAOA and delinquent behavior in adolescence and young adulthood: associations and MAOA promoter activity. Eur J Hum Genet. 16(5): 626-34

10- McDermott R, et al. (2009) Monoamine oxidase A gene (MAOA) predicts behavioural aggression following provocation. Proc Natl Acad Sci. 106 (7): 2118-23.

11- Barber N (2010-07-13). “Pity the poor murderer, his genes made him do it” Psychology Today. Blog: “The Human Beast: Why we do what we do”. Retrieved 2010-10-17.

12- Turner, Robinson, Lang & Purvis-Smith, Preventive Screening for the Fragile X Syndrome, 315 NEW ENG. J. MED. 607, 607-09 (1986)

13- Koepf, Ishihara & Hauschka, An XYY Human Male, [1961] 2 LANCET 488, 488-89.

14- Hagerty BB (2010-07-01). “Can Your Genes Make You Murder?” News > Science > Inside The Criminal Brain. National Public Radio.Retrieved 2010-10-17.

15- Keilitz, Researching and Reforming the Insanity Defense, 39 RUTGERS L. REV. 289, 293-303 (1987)

16- L. Taylor, born to crime: the genetic causes of criminal behaviour 17-20 (1984);

17- Psychomotor Epilepsy and Aggressive Behavior, 28 ARCHIVES GEN. PSYCHIATRY 210, 210 (1973).

18- V. Mark & F. Ervin, Violence AndThe Brain 148 (1970).

19- L. Caplan, The Insanity Defense And The Trial Of John W. Hinckley, JR. 82 (1984).

20- See Both Sides Rest Their Cases In Moscone Murder Trial, N.Y. Times, May 15, 1979, At A14, Col. 6; Ex-Supervisor Held Unable To Tell Right From Wrong, N.Y.Times, May 8, 1979, At A16, Col. 6

21- Sullivan, Jury, Citing Mother’s Condition, Absolves Her in 2 Babies’ Deaths, N.Y. Times, Oct. 1, 1988, at 29, col. 2.

22- Mansnerus, The Darker Side Of the ‘Baby Blues,’ N.Y. Times, Oct. 12, 1988, at Cl, col. 1.

23- Moffit, T.E. (1987). Parental mental disorder and offspring criminal behavior: An adoption study. Psychiatry: Interpersonal and Biological Processes, 50, 346-360.

24-  http://www.scielo.br/scielo.php?pid=S010412902018000200354&script=sci_arttext&tlng=en

25- Ambar, G., & Chiavegatto, S. (2009). Anabolic-androgenic steroid treatment induces behavioral disinhibition and downregulation of serotonin receptor messenger RNA in the prefrontal cortex and amygdale of mice. Genes, Brain and Behavior, 8, 161-173.

26- Celada, P., Puig, M. V., & Artigas, F. (2013). Serotonin modulation of cortical neurons and networks. Frontiers in Integrative Neuroscience, 7, 25.

27- Moffitt, T. E., Caspi, A., Rutter, M., & Silva, P. A. (2001). Sex differences in antisocial behav-iour: Conduct disorder, delinquency and violence in the Dunedin longitudinal study.

Cambridge: Cambridge University Press (http://doi.org/10.1017/CBO978051149057

28- Felson, R. B. (2002). Violence and gender re-examined. DC: American Psychological Association

29- Steffensmeier, D., & Allan, E. (1996). Gender and crime: Toward a gendered theory of female offending. Annual Review of Sociology,22,459–487.

30- Dabbs, J. M., & Dabbs, M. G. (2000). Heroes, rogues, and lovers: Testosterone and behavior. McGraw-Hill.

31- Hoskin, A. W., & Ellis, L. (2015). Fetal testosterone and criminality: Test of evolutionary neuroandrogenic theory. Criminology53(1), 54–73 (http://doi.org/10.1111/1745-9125.12056).

32- http://criminal-justice.iresearchnet.com/criminology/theories/biological-theories-of-crime/16/

33- Farrington DP. Predictors, causes and correlates of male youth violence. In: Tonry M, Moore M, editors. Youth violence. Chicago: University of Chicago Press; 1998. p.421-75.

34- Schraiber LB, D’Oliveira AF, Couto MT. Violência e saúde: estudoscientíficosrecentes. Rev SaudePublica. 2006;40(n Esp):112-20.