127th Constitution Amendment Bill: All you need to know

The Indian Constitution has been subject a plethora of times to amendments and changes that suit the needs of the concerned time period. One of the unique features of the Constitution is that it can neither be classified as rigid or flexible. This is in the sense that amendments are not extremely easy to bring in, but they aren’t too difficult either. There have been over a 100 amendments to the Constitution so far and the latest has come in the form of the 127th Amendment Bill which was passed by the Parliament this month. 

Continue reading

Laws Related to Old Age

“Growing Old” is a natural process that every human undergoes in one’s lifetime. It basically refers to the decline in the functional capacity that occurs due to physiological transformation. Senior citizens are an asset to a society with their pool of varied experiences, ideas, knowledge and expertise. Looking at the present scenario, where the roots of the joint family system are eroding and with the intrusion of more and more number of women in paid employments, the older citizens are facing a lot of difficulties in terms of loneliness and social maladjustments. In rural areas where the joint family system continues to prevail, the older members are respected more and are considered as an integral part of families.

Most senior citizens are unaware of their rights, either because of illiteracy or lack of alertness. Their biggest problems could be subdivided into the following categories –

  • Economic problem
  • Physical and physiological problem
  • Psycho-social problem

Various international attempts have been made by the U.N. General Assembly 1991 to address the concerns of senior citizens. 18 principles have been adopted, which have been grouped into five clusters namely, independence, participation, care, self-fulfillment, and dignity of the older person. United Nations have also declared 1st of October as International day of older persons.

Various national efforts have also been made to protect the interests of the old aged:-

1)   Constitution of India, Directive Principle of State Policy, Article 41 states that “the state shall, within the limits of its economic capacity and development, make effective provision for old age, sickness and disablement and in other cases of underserved want.”

2)   Code of Criminal Procedure (Chapter IX) , Section 125(1)(2) requires persons having sufficient monetary means to take care of their parents if the latter are unable to take care for themselves.

3)   Hindu Adoption and Maintenance Act,1956 Section 20 requires Hindu sons and daughters to maintain their elderly parents when parents are unable to maintain themselves.

India has also played a major role in safeguarding and protecting the vulnerable group of our country by granting various concessions and facilities and also by implementing various policies and programs for them:-

  1. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – It is a legislation initiated by the Ministry of Social Justice and Empowerment, Government of India and attempts to address the problems of the elderly population of our country in various ways.

This Act makes it obligatory for children and their heirs to provide as maintenance a monthly allowance to their parents and other senior citizens of the family. It also provides a simple, speedy, and inexpensive mechanism for the protection of their life and property. Mandate for setting up of old age homes is also included.

Senior citizens who are unable to maintain themselves have a right under this statute to make an application to the designated tribunal to effectively claim their maintenance amount from their errant children/heirs.

State government has the power under this Act to set up a maintenance tribunal in every sub-division that would have the power to decide upon the level of maintenance. All appeals from the maintenance tribunal would lie in the Appellate tribunal (established at the district level).

The Act caps the maximum monthly allowance at Rs 10,000 per month. The establishment of old age homes has significantly taken off, with at least one old age home per district[1].

  1. Reverse Mortgages– Under such scheme the senior citizen mortgages his property to a lender in the capacity of a borrower, the lender thereby makes periodic payments to the borrower during his lifetime[2].
  2. New Pension scheme– This scheme enables an individual to save a certain amount through his working life[3].
  3. Health– The Ministry of Health and Family Welfare provides separate queues for older persons in hospitals for procedures of registration and clinical examination. This is in addition to the concessions offered to them in the treatment of the diseases like cardiac problems, diabetes, kidney problem, blood pressure, joint and eye problem[4].
  4. Travel- i.) The Indian Railways gives 30% concessions in the ticket prices to all persons aged 60 years and above. It is 50% in case the senior citizen is a woman aged over 60 years. Other facilities like, priority for lower births, separate counter for booking (and cancelling tickets), ramps to roll in wheel chairs at the entry points (in few important stations), specially designed coaches with provisions for accommodating wheel chairs, handrails, and specially designed toilet for  disabled older citizen have also been put in place.                                                                                            While travelling by air, most elderly persons are encouraged to board first. Besides this, the Indian Airlines provides 50% concession on purchase of economy class tickets. And, Air India has been offering discount to senior citizen aged 60 years and above on international flights[5].
  5. Banking– Indian government gives high rate of interests to its senior citizens on certain savings plans which are run by the post offices and other private banks. They can also avail of Income tax rebate up to an income of Rs 1.85 lakhs per annum.[6]
  6. Housing-The Indian government provides housing facilities such as retirement homes and recreational or educational centers. These centers provide older persons with opportunities to spend their free time doing various activities. Most recreational centers have yoga clubs, fitness club, parks, spiritual session, picnic, food fests, libraries, art and craft, music classes and indoor games.[7]
  7. Miscellaneous- Courts in the country accord priority to cases involving older persons and ensure their expeditious disposal.[8]
  8. Annapurna scheme is being implemented since 2001 where 10 kgs of food grains are provided free of costs to old destitute people who are above the age of 65 years.[9]

International Comparison

Internationally also various laws have been developed for securing the interests of the old aged:-

  1. United States: Older American Act of 1965- created the administration on ageing within the department of health, education and welfare; authorized grants for the research and training in the field of ageing, for community planning, for implementing services for the elderly.[10]
  2. South Africa: Older Person Act no. 13 of 1996- provides strict control for registration of various kinds of facilities for the older people, makes abuse of the elderly a criminal offence; creates social and culture community- based services for the elderly.[11]
  3. Sri Lanka: Protection of Rights of Elder’s Act 2000- has established a National Older Persons’ Council, which requires children to provide care for their parents[12].
  4. Canada: Parents Maintenance Act, 1978 and 1993 respectively- mandates children to pay maintenance to dependent parents. The amount of maintenance has an upper limit, fixed at $20 per week[13]
  5. China: Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly Act 1996- places responsibility on family members to care for the elderly members; establishes a state based old age insurance system, increases legal protection available to the elderly (the most important being, speedy trials and other court procedures).[14]

Conclusion:

 The government has tried its best to provide for the upliftment and protection of older persons (that could make their everyday living better) by drafting various governmental concessions, schemes and policies specifically for them. However the implementation of these well-intended instrument is very poor.

The other concern that has not been adequately addressed by legal instruments is the increased crime rate against the elderly populace on the streets and within the confines of their homes, robbery and dacoity being the primary reasons for their attack. Proper police patrolling, SOS facilities seem to be the urgent needs of this hour along with the implementation of the instruments that are already in place.

Photo Courtesy: https://www.google.co.in/search?q=old+age+rights+india&biw=1366&bih=623&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMI8PmdiL_uxwIVzRuOCh1vvASJ#imgrc=BZbt0A0qIlbGOM%3A

…………………………………………………………………………………………………………………………………….

[1] Information obtained from http://www.prsindia.org/billtrack/the-maintenance-and-welfare-of-parents-and-senior-citizens-bill-2007-441/

[2] Information obtained from http://indiatogether.org/seniors-laws

[3] Information obtained from http://indiatogether.org/seniors-laws

[4] Information obtained from http://socialjustice.nic.in/consd.php

[5] http://socialjustice.nic.in/consd.php

[6] http://socialjustice.nic.in/consd.php

[7] http://socialjustice.nic.in/consd.php

[8] http://socialjustice.nic.in/consd.php

[9] http://pib.nic.in/infonug/infyr2000/infoaug2000/i010820001.html

[10] Information obtained from  http://indiatogether.org/seniors-laws

[11] Information obtained from http://ossafrica.com/esst/index.php?title=Summary_of_the_Older_Persons_Act%2C_no._13_of_2006  and  http://indiatogether.org/seniors-laws

[12] Information obtained from http://www.socialwelfare.gov.lk/web/index.php?option=com_content&view=article&id=131&Itemid=106&lang=en and

http://indiatogether.org/seniors-laws

[14] Information obtained from http://indiatogether.org/seniors-laws

Mobile Applications and the Right to Privacy

With the release of the first ever Smartphone in 1992[1] (the IBM ‘Simon’) to the launch of the iPhone in 2007 and that of the first ever android Smartphone in 2008[2] (the HTC ‘Dream’), smart phones have rapidly emerged to become our preferred method of communication. The advent of Smartphone technology gave rise to what essentially made the Smartphone ‘smart’- the mobile applications, or apps as they are referred to now. There are hundreds of thousands of different applications available from a range of app stores for each popular smart device type. The era is long gone when mobile devices were just a means of voice communications. Mobile applications now provide an array of services from social networking, shopping, banking, ticketing to corporate applications such as email, calendar and address book applications – there seems to be an app for almost everything. The Apple iPhone and iPad, as well as all subsequent Smart phones and smart tablets, owe their popularity and most of their functionality to their ability to run mobile applications.

It has been reported that more than 1,600 new apps are added to app stores daily.[3] An average smart phone user downloads 37 apps[4]. These mobile applications thus are being released in a flurry. In the times of Facebook, Viber and Whatsapp, privacy aspect has been left redundant. These mobile applications have gone from being a means of connectivity to a means of inconvenience and imposition of surveillance. As these applications are easier to download and more consumers purchase Smart phones and tablets, a very real privacy concern emerges.

There’s a plethora of security and privacy risks regarding them as these apps store and transmit a lot of private and sensitive information about their users without the user’s knowledge or consent. Information includes location, contacts, photos and corporate information, such as login credentials, private contact details, credit card details, invoices and purchase orders and other private information that the consumer does not consciously share. Even when mobile applications obtain a user’s consent to collect private data, other issues remain. For instance, consent is usually obtained in such a manner that even subsequent to consenting; the user stays ignorant in the matter of what particular data he or she has released.

Recent research showed that many apps abundantly collect data from smart phones, without any meaningful relationship to the apparent functionality of the app[5]. For over a week, Facebook has been pushing users to download the new standalone Messenger app in light of the fact that it is disposing off the feature in its regular application. Some users were notified that their in-app message function was disabled, and they needed to download the new app if they wanted to use the private chat service. But Messenger’s user agreement terms for Android-run devices were seen by many as increasingly invasive and yet another way Facebook was making privacy rights immaterial and irrelevant.

Some of the questionable terms incorporated permitting the app to make calls without the user’s knowledge, record audio, take pictures and feature any time. The app also reserves the right to scroll through users’ contacts and call logs, and in addition gather personal information stored on the mobile devices including data stored in other apps. Backlash against the app’s terms is just the latest privacy controversy Facebook has had to manage.

The social network admitted in June that it performed psychological experiments on users by manipulating their timelines. News of the experiments, which tried to alter users’ moods based on what they read, incited public furor over the company’s continuous push of privacy boundaries[6]. Moreover, Facebook and other tech companies have been under pressure to tighten their privacy policies domestically and abroad in the wake of former U.S. National Security Agency contractor Edward Snowden’s document leaks in 2013.

Facebook is currently tussling with European lawmakers, and awaiting a European Union court to rule whether the company broke privacy laws when it gave the NSA access to German citizens’ profiles. Adding fuel to fire of privacy concerns, the cloud system of data storage went kaput a few months back, wherein hackers leaked private risqué photos shared or stored via such mobile applications. Even more on the flipside, there has been an increase in stalking and numerous instances of bullying be it the young or old. These mobile applications encroach upon the private spheres in the most disastrous ways possible.

Research shows mobile apps are growing at a rate of 29.8% each year, and that the 1.2 billion mobile users currently using apps will climb to 4.4 billion by the year 2017[7]. Applications for mobiles are being developed at a tremendous rate but often without proper security implementation. These applications can cause serious information security and data privacy issues and can have severe repercussions on users and organizations alike. Therefore, all applications must undergo a thorough security assessment before being released into production to confirm that all the privacy and security issues have been addressed[8].

The legal right to privacy is constitutionally protected in most democratic societies. This constitutional right is expressed in a variety of legislative forms. Examples include the Privacy Act (1974) in the USA, the proposed Open Democracy Act in South Africa (1996) and the Data Protection Act in England. During 1994 Australia also accepted a Privacy Charter containing 18 privacy principles which describe the right of a citizen concerning personal privacy as affected by handling of information by the state. The Organization for Economic and Coordination and Development (OECD) also accepted in 1980 the Guidelines for the Protection of Privacy and Trans border Flow of Personal Data[9].

India has no dedicated privacy and data protection laws, which makes us vulnerable to violations of privacy by mobile apps. Courts have read the right to privacy into the other existing fundamental rights, namely the right to freedom of speech and expression under Article 19(1) (a) and right to life and personal liberty under Article 21 of the Constitution of India. However, these Fundamental Rights under the Constitution of India are subject to reasonable restrictions given under Article 19(2) of the Constitution that may be imposed by the State. However, the relevant laws in India dealing with data protection are the Information Technology Act, 2000 and the (Indian) Contract Act, 1872. India is also weak at protecting civil liberties in cyberspace. The right to privacy is a right that the Indian government can no longer ignore, especially with the growing use of apps in everyday life. One can only hope that an effective law regarding protection of privacy comes out in the near future, to avoid infringement of our privacy.

Photo Courtesy: https://www.google.co.in/search?q=Mobile+applications+privacy&biw=1366&bih=667&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMI6N3rtKWcxwIVz1uOCh1smwiQ#imgrc=QPsy71t20Hf4FM%3A

……………………………………………………………………………………………………………………………

[1] http://time.com/3137005/first-smartphone-ibm-simon/

[2] http://news.softpedia.com/news/Remember-The-First-Android-Smartphone-Was-the-HTC-Dream-or-Google-G1-472839.shtml

[3] Report in ConceivablyTech of 19 August 2012, available at www.conceivablytechcom/10283/business/apple-app store-to-reach-1mapps-this-year-sort-of. Quoted by Kamala D. Harris, Attorney General California Department of Justice, Privacy on the go, Recommendations for the mobile ecosystem, January 2013, http://oag.ca.gov/sites/all/files/pdfs/privacy/privacy_on_the_go.pdf

[4] This is a worldwide estimate for 2012 by ABI Research, http://www.abiresearch.com/press/smartphone-users worldwide-will-download-37-apps-o

[5] Wall Street Journal, Your Apps Are Watching You, http://online.wsj.com/article/SB10001424052748704694004576020083703574602.html

[6] http://thinkprogress.org/culture/2014/08/10/3469599/facebook-messenger-app-privacy/

[7] Ajay Sharma, ”Can you feel me now”-The new age of mobile apps, available at http://www.charterglobal.com/can-you-feel-me-now-the-new-age-of-mobile-apps/

[8] J. Burns, “Developing Secure Mobile Applications for Android,” iSEC, Oct. 2008; www.isecpartners.com/files/iSEC_Securing_Android_Apps.pdf.

[9] Collier, G. (1994). Information privacy. Just how private are the details of individuals in a company’s database? Information Management and Computer Security, 3 (1): 41-45.

Job application rejected on religious grounds: Morally reproachable but not legally culpable?

Many will be familiar with the story of Zeeshan Ali Khan, who was allegedly denied a job by a private company because of his religion. The twenty-two year old MBA graduate applied for a marketing job at Hare Krishna Exports Pvt. Ltd., a diamond export company in Mumbai. According to him, he received a response within fifteen minutes, which said that the firm only hired non-Muslim candidates.[1] Two friends who had applied with him, both Hindu, received job offers.[2] Mr. Khan posted a screenshot of the shocking email on Facebook, and the story soon went viral. An outpouring of support for Mr. Khan and criticism for the company followed on social media.  An FIR for this alleged discrimination was filed against the company, under Section 153-B (1) (b) and (c) of the Indian Penal Code 1860.  However, there is a very important question here that cannot be overlooked: Does this private company’s rejection of the application on religious grounds, however distasteful and morally reprehensible it may be, attract civil or criminal liability under the law in India as it exists today?

 In this post, I shall examine the relevant Indian law and assess whether it would apply to a situation like this one. I shall also be discussing the legal framework that exists in other countries, that addresses this serious social issue as well as any attempts in India made in the past to bring in a law that could adequately cover cases like these.

Before we turn to the law, however, it would be appropriate to bring up the social dynamics that are behind this fact situation. In a country where the relations between people of different religions has been marred with numerous incidents of hatred and often bloodshed, this incident, sadly does not come as an altogether large  surprise. To what extent religious discrimination with reference to employment exists in India cannot be precisely ascertained, however, there has indeed been some research on this topic. A study[3] that appeared in the Economic and Political Weekly in 2007 attempted to answer this question. The methodology followed by the researchers was this: The researchers collected advertisements announcing job openings in entry level positions in various private sector firms. Sets of resumes and application letters were prepared, with identical educational qualifications and work experience. All the applications purported to present strong candidates with suitable degrees from reputed universities. The only difference in the applications was that one set of applications, had in the name of the ‘applicant’ section a visibly Muslim name, while the names in the other set of applications were suggestive of individuals belonging to high-caste Hindus. (No explicit mention of religion was made) The study found that the Muslim ‘applicants’ were statistically, significantly less likely to receive a call for the next stage of the selection process than equally qualified Hindus.

 

The law in India

Having presented a situation where religious discrimination can play a role  in hiring, we now look at the legal scenario here. The first to be examined is Section 153-B of the IPC under which the FIR in this case was filed. Section 153 B (1) (b) penalizes, inter alia, assertions that any class of persons by reason of their religious beliefs be denied their rights as citizens of India. Employment in the private sector is not a ‘right’ guaranteed to people by virtue of their being Indian citizens. Thus it is very obvious on a plain reading that the statement made by the company would not amount to an ‘assertion’ within the meaning of this Section.  Section 153 B (1) (c) criminalizes any assertion concerning the ‘obligation’ of any person by reason of their belonging to a religious group, which is likely to cause feelings of enmity between such members and other persons. Firstly, the company’s rejection did not mention an ‘obligation’ of any kind and it seems unlikely that it can be proved that it is likely to cause ‘hatred’ or ‘enmity’ between religious groups. Thus whether a conviction will result in this case is a doubtful matter.

Another related provision is the ‘hate speech’ Section 153-A, which makes it an offence to attempt to promote enmity, hatred or ill will between,  among other things, different religious community, as well as any such conduct which is likely to disturb the public tranquility. As with Section 153-B, the language of the Section is disproportionate to this factual situation, howsoever appalling the company’s conduct was.

It is true that the Constitution of India guarantees equality before the law under Article 14 and prohibits discrimination on grounds of among other things, religion under Article 15. However these Fundamental Rights are only enforceable against the State (that is, the government, its agencies and establishments).  Thus private companies are not constitutionally bound to treat persons of all religions equally. In fact, it is possible that the Supreme Court may have actually endorsed the reverse proposition. In a Supreme Court decision[4] dated 2005, with a somewhat related factual situation, namely, persons from different religions being barred from buying plots in an exclusively Parsi housing society, it was held that the Society was entitled to do this on religious grounds, on of the reasons being that “ …Part III of the Constitution has not interfered with the right of a citizen to enter into a contract for his own benefit and at the same time incurring a certain liability arising out of the contract.”[5] 

 Thus, it could easily be argued that under the present law, the private company enjoys the freedom to contract with whomever they please. Even if a conviction does result in this case, one rather vaguely worded Section of the IPC is not sufficient to address the various permutations and combinations of situations related to religious discrimination at the workplace. There is clearly a serious need for such a law in India.

 

Applicable legislations abroad

Various nations such as the U.S.A, U.K., and Australia have laws that prohibit employers from discriminating against employees or prospective employees on the basis of religion.

The most prominent among these is Title VII of the Civil Rights Act[6], 1964 in the U.S.A.  Some key features of this extremely comprehensive legislation are:

  • It holds employers responsible for religious discrimination not only by supervisors but also by co-workers. Employers are duty bound to have clearly communicated policies that deal with such discrimination, train managers to deal with complaints of discrimination and make it clear to employees that such conduct is prohibited.
  • It applies not only to the hiring stage, but also to any discrimination that may take place in promotions, transfers, and related matters.
  • An interesting feature of this law is ‘religious accommodation’ which means that employers are required to reasonably accommodate religious practices of employees such as wearing headscarves or not working on a particular day of the week, unless such an accommodation causes unreasonable hardship to the employer

In a recent case[7] the U.S. Supreme Court ruled in favor of a case where a woman was denied a job because she wore a hijab, with the company arguing that such attire violated the dress code under their corporate policy, holding that this did indeed amount to workplace discrimination. In another case,[8] a settlement was arrived at in favor of a Muslim woman who wanted to wear a headscarf with her bus drivers uniform as well as a Pentecostal woman who wanted to wear skirts with her uniform instead of pants.

Therefore the U.S.A law is clearly sensitive to the various ways in which religious discrimination at the workplace may manifest itself.

 

Possibility of a relevant law in India in the future

In 2013, there were reports that the government would possibly introduce the Equal Opportunities Commission Bill in the budget session that year.[9] In fact, an expert committee had presented a report along with a draft bill[10] on such a proposal in 2008.  It was recommended that the proposed Equal Opportunities Commission was to be given the functions of holding inquiries into complaints of discrimination at the workplace, conciliate such disputes and support proceedings in the Courts wherever necessary, or to direct the Government to take action including prosecution against persons who had acted against the directives of this Commission. However, since 2013, this Bill has not been heard of. In 2014, there were reports[11] that this Commission would only protect minorities. This is a rather disappointing development. Indeed, minorities are more vulnerable to discrimination, however a community that constitutes a majority nationwide could very well be a minority in a State, district or locality, shifting the balance of ‘vulnerability.’ Further, religious discrimination needs to be condemned irrespective of who is committing it. Since 2014, the proposal to set up the EOC has not been heard of.

 

Conclusion

The much publicized incident has only highlighted an issue which has been substantially  prevalent in India for a long while. It should hopefully act as a catalyst to enact a law prohibiting religious discrimination even in the private sector following the example set by various countries.  Clearly, the Constitutional promise of non-discrimination is not sufficient in India where eighty percent of the workforce is in the private sector,  where discrimination is probably continuing unobstructed.[12]This is critically important in a deeply religious society like India. To those who argue that the autonomy of the private sector [1]must be respected, it must be said that what is at stake here is unity and security of the country, which should certainly take precedence.

  1. Photo Courtesy:
    https://www.google.co.in/search?q=employment+discrimination+religion&espv=2&biw=1368&bih=639&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMIktmchrDaxgIVSiOOCh1E-QIT#imgrc=iLMFRJcpst6pAM%3A
  2. http://www.yourlawyer.com/topics/overview/employment_discrimination

 ………………………………….

[1] http://www.firstpost.com/politics/mba-grad-zeeshan-ali-khan-denied-job-muslim-accepts-offer-adani-2271434.html

[2] http://www.thehindu.com/news/cities/mumbai/zeshans-friends-reject-job-offer-from-diamond-firm/article7236313.ece

[3] The complete study can be accessed here:

http://web.iitd.ac.in/~sbpaul/HUL736/Caste/thorat%20and%20attewell,%20epw.pdf

[4] Zoroastrian Cooperative Housing Society v District Registrar

The judgment may be accessed here: http://indiankanoon.org/doc/713373/

[5] Supra, para. 16.

[6] The statute can be viewed here: http://www.eeoc.gov/laws/statutes/titlevii.cfm

[7] http://news.adventist.org/all-news/news/go/2015-06-01/us-supreme-court-rules-abercrombie-discriminated-against-applicant-in-workplace-religious-discrimination-case/

[8] United States v. Washington Metropolitan Area Transit Authority: Consent decree may be accessed here:

http://www.justice.gov/crt/spec_topics/religiousdiscrimination/wmata_motion.pdf

[9] http://www.firstpost.com/india/equal-opportunities-commission-bill-to-be-introduced-in-budget-session-613504.html

[10] https://www.nls.ac.in/csseip/Files/Additional/EOC.pdf

[11] http://www.ndtv.com/india-news/upa-ready-with-equal-opportunity-panel-for-minorities-ahead-of-national-elections-547112

[12]http://www.kentlaw.iit.edu/Documents/Institutes%20and%20Centers/ILW/Jackson%20Louis%20Writing%20Competition/Shenoy_EmploymentLawIndia.pdf

A Rape Covered Under The Veil Of Marriage

1.  Introduction

Whenever Mahira, who is 25 years old, has a fight or a heated argument with her husband, he takes it out on her in the bed. She is merely a toy for him whom he can use differently every night. He forces himself on her, every single day, even during her periods. Their relationship has never been about ‘consent’ and ‘equality’.

Similarly, many women are subjected to dowry harassment and brutal rape which involves inflictions with torch lights leading to serious injuries.

These are just a few examples out of the plethora of such cases. These women are all married and they have to go through such kind of violence and forced intercourse. Is a wife merely a tool to vent out sexual and emotional tension and frustration? Marital rape is an oxymoron. Yet marriage and rape have an unfortunate continued relationship in India. Both rape and marriage are considered ways of gaining control over a woman’s body since time immemorial. This was also exemplified in the infamous Imrana rape case[1] where back in 2005, 28-year-old Imrana, a mother of five, was raped by her 69-year-old father-in-law. And the Panchayat (local council) declared her marriage to her husband as void since she had had sex with her father-in-law and by virtue of her physical relationship with her father-in-law she was also told to treat her own husband as her son.

The dictionary meaning of the word “rape” is “ravishing or violation of a woman” which in its generic term “Raptus” implies violent theft, applied to both property and person. Rape is the word for forced or coerced sex. It is when the woman has not had the opportunity to freely give consent or she is unable to give consent. Marital rape is the non-consensual sex committed by the spouse. It is also known as partner rape or rape in marriage.

2.  Indirect laws addressing Marital Rape

Marriage in India is considered a holy sacrament between a husband and his wife. When a man marries a woman, it not only brings implied consent of sexual intercourse but also the man’s duty to give due respect to the dignity of his wife. When the husband commits unwanted/ forceful intercourse with his wife, he breaks the confidence of his wife and breaches her trust in him. Lately, Section 498A of the Indian Penal Code i.e. the anti-dowry law is voluminously misused by the women and a considerable number of rape cases reported each year are also false. Proving marital rape and taking bedrooms to courtrooms in such cases is not only a difficult but also a dangerous idea.[2]

As per the Indian penal legislation i.e., Section 375 of the Indian Penal Code- “Sexual intercourse” or “sexual acts” by a man with his own wife, the wife not being under fifteen years of age, is not rape.” [3] Exception to Section 375[4] of IPC provides immunity to the husband who rapes his wife and declares marital rape as legal and does not consider it as rape. This shows that the concept of marital rape goes beyond the virtues of Article 21[5] of the Constitution of India i.e. right to live with human dignity. Marital rape prima facie violates Article 14[6] of the Constitution as it creates a classification between married and unmarried women and denies equal protection of the criminal legislation to the former.[7] Though marital rape violates basic human rights that are attributed to every human being under the purview of these Articles there are not many remedies available to the victim.

Therefore, in India, marital rape can come under cruelty clauses of section 498A of IPC. Cruelty covers physical and mental harassment. Punishment is imprisonment for a maximum period of three years with fine. The remedies for cruelty under the Indian Penal Code take years to reach an outcome. In view of this, victims remain victims. They either give in, or give up.

Another remedy available to the wife is under the Protection of Women from Domestic Violence Act, 2005 which deals with protection of women from physical and mental cruelties of all forms, including sexual abuse. Family Courts as well as Magistrates provide counselling to the husband under domestic violence laws. But unfortunately, the provisions of this Act provide civil remedies only and a wife who wants to see her husband (rapist) punished finds no solution to that. Instead she is the one who struggles and suffers especially if she has children or is financially dependent or is without family support.

The only lasting solution to the problem of marital rape is legal separation or annulment of the marriage itself. A legally separated wife can only file a complaint for rape against her husband under Section 376A[8] of IPC.[9]

3. Startling Statistics

Marital rape is both common and an un-reported crime. A study conducted by the Joint Women Programme – an NGO, found that one out of seven married women had been raped by their husbands at least once. They frequently do not report these rapes because the law does not support them.[10] According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49 years, have been beaten, or forced to provide sex.[11] Bertrand Russell in his book Marriage and Morals saw marriage as one of the most conventional forms of livelihood for a woman where the frequency of undesired intercourse she has to give in to is in all probabilities higher than that endured by a prostitute. [12]

Still the problem of marital rape has received very little attention from the activists, criminal justice system and the society at large. The concept of rape in marriage got recognition only after 1970s. The right of a husband to have sexual intercourse with his wife was considered to be one of the most natural implications of the contract of marriage.[13]

International Instruments

Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.[14] Also the unanimous resolution at the UN conference in Beijing, September 1995 guarantees every woman the right to say no to sex as she wishes, specifically wives. In accordance with these Declarations and Conferences many countries have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. These States include Albania, Algeria, Australia (in 1991), Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, Mauritius (in 2007), New Zealand (under Crimes Act, 1961), Norway, the Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom (in 1991), the United States, and recently, Indonesia, Thailand (in 2007), Turkey (in 2005).[15] In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition. Lord Keith, compared a marriage of the modern times with a partnership of equals where the wife is no longer the subservient chattel of the husband.[16]

4. Rethinking of the existing law

In India, the 42nd Law Commission Report (1972) suggested that marital rape should be criminalised. However, actions were not taken to that effect and the 84th Report (1980) was not in favour of the criminalisation. In the year 1996 the Supreme Court of India in Bodhisattwa Gautam v. Subhra Chakraborty[17] classified rape as a crime against the basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. However, the Apex Court negated this very pronouncement by not recognizing marital rape.[18] This shows that the Indian courts as well as the law makers have made recommendations and pointed out the need for penalising marital rape several times. Still there has not been any substantial change in this field.

5. The gray areas

There are a lot of loopholes in the Indian legal system when it comes to marital rape. It not only provides immunity to the rapist husband but is also silent with regard to a lot of questions. For example, there are no provisions to deal with the cases of rape which are committed by the husband in collusion with a third person or if rape is committed by both the husband and a third person. Whether the third person will only be punished for rape, or whether the husband, would escape punishment for marital rape owing to his relationship with the victim are some of the many questions which the law has failed to adequately answer.[19]

 The honourable High Court of Delhi has rightly pointed out in the case of Meena & Anr. v. State & Anr.[20] on 17 October, 2012 where the Court observed that if a girl who is not the wife of the man but is below 16 years of age (15 as per the Criminal Law Amendment 2013) then even the consensual intercourse between the two amounts to rape. But if the girl is above 16 years and is wife of the man, then even the forced intercourse is not rape. This provision in the Indian Penal Code, 1860 is a specific illustration which shows that the legislature has legitimized the concept of child marriage by keeping a lower age of consent for marital intercourse.

6. The deep scars left from the crime

Marital rape causes both mental as well as physical trauma which has severe and long-lasting consequences on women. The immediate physical and gynaecological effects of marital rape include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue, vomiting, miscarriages, stillbirths, bladder infections. It may also lead to infertility and HIV. Rape in marriage has a lot of long-lasting psychological consequences also. It causes anxiety, shock, intense fear, depression, sleep problems, suicidal ideation, etc. [21]

7. Conclusion

The concept of marital rape is an oxymoron. It is a rape under the veil of marriage. Marriage is not a licence for sex. Just because a woman says “I do” to marriage it does not mean that she has said “I do” to sex whenever, wherever, and however her husband wants it. Sex is not an implied ‘right’ under the contract of marriage rather it is a clear communication of love, mutual consent, caring and respect between husband and wife.

A recent incident of gang rape and murder of a student on a bus in Delhi in 2012 led to a mass outcry. This outrage took place when the girl was raped by strangers. Had she been raped by her husband, would it have the same effect? If rape is the violation of human rights then it would continue to be a violation whether committed by her husband or a stranger.

The dignity of women either married or unmarried is alike. She cannot be considered as a property or the subservient chattel of the husband In today’s scenario we require generation of awareness along with judicial awakenings. What really needs to be done is to teach both boys and men to not rape and educate them to view women as valuable partners in every aspect of life.

 

[1] http://archive.indianexpress.com/news/imrana-rape-case-fatherinlaw-gets-bail/1143012/

[2] http://www.bbc.com/news/world-asia-india-32810834

[3] As per the Criminal Law (Amendment) Act, 2013

[4] Section 375- Definition of Rape

[5] Article 21 of Indian Constitution- Protection of life and personal liberty

[6] Article 14 of Indian Constitution- Equality before law

[7] http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html

[8] Section 376A – Intercourse by a man with his wife during separation

[9] http://www.firstpost.com/living/law-marital-rape-domestic-violence-act-reasonable-substitute-2223674.html

[10] http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&i

d=586

[11] www.ijmr.net.in

[12] http://www.ndtv.com/opinion/the-sordid-reality-of-marital-rape-760245

[13] http://www.ebc-india.com/lawyer/articles/645.htm

[14] http://www.un.org/documents/ga/res/48/a48r104.htm; Usha Badri Poonawalla vs K. Kurian Babu [AIR 2002 Bom 292]

[15] Refer – Law Commission of India’s 20th Report on Proposal to Amend The Prohibition Of Child

Marriage Act, 2006 And Other Allied Laws

[16] http://nlrd.org/wp-content/uploads/2013/01/121798698-Justice-Verma-Committee-report.pdf

[17] (1996) 1 SCC 490

[18] http://www.theglobaljournals.com/ijar/file.php?val=December_2013_1385986800_cc62d_76.pdf

[19] www.jstor.net

[20] W.P. (Crl.) 1231/2012

[21] http://www.vawnet.org/research/summary.php?doc_id=248&find_type=web_desc_AR

A Case Analysis: Of the Maneka Gandhi Case

BRIEF FACTS OF THE CASE –

On the 4th of July, 1977, Smt. Maneka Gandhi received a letter from the Regional Passport Office, Delhi, asking her to submit her passport (No. K-869668) within seven days from the day on which she had received such letter, i.e. before 11th July 1977. The letter stated that it had been the decision of the Government of India to impound her passport under Section 10(3)(c)of the Passport Act 1967. The grounds for such an impounding, as told to her, was “public interest.”

 Smt. Maneka Gandhi immediately sent a letter to the Regional Passport Officer, inquiring about the grounds on which her passport had been impounded. She also requested him to provide a copy of the ‘Statement of Reasons’ for making of such an order. The reply sent by the Ministry of External Affairs was that it was the decision of the Government of India to impound the passport in the interest of the general public. Also, there were orders to not issue her a copy of the Statement of Reasons. Smt. Maneka Gandhi thus filed a petition with regards to the matter.

 

JUDGEMENT OF THE CASE –

It was held that Section 10(3)(c) of the Passport Act confers vague and undefined power on the passport authorities, it is violative of Article 14 of the Constitution since it doesn’t provide for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not affirm to the word “procedure” as mentioned in the clause, and the present procedure performed was the worst possible one. The Court, however, refrained from passing any formal answer on the matter, and ruled that the passport would remain with the authorities till they deem fit.

RATIO DECIDENDI OF THE CASE –

Ratio Decidendi is commonly defined as the reasons for the judgement. It basically refers to the material part of the judgement without which the judge would have been unable to reach to the present conclusion of the case.

Before stating the ratio of the case and the reasons for the same, let’s first look at Section 10(3)(c) of the Passports Act  1967 – “if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;”

Following is the ratio of the case, with an analysis of the same –

  1. Section 10(3)(c) of the Passport Act is violative of Article 14 of the Indian Constitution –

Article 14 of the Constitution talks about equality before law. This provision is absolutely against arbitrariness or vagueness of any sort as far as the actions of the executive are concerned. Section 10(3)(c) of the Passports Act confers unlimited powers on the passport authorities. Since it is vague in its wordings, the application of such a provision has not been very clearly defined in the Act. Thus, this leaves a lot of scope for the executive to interpret it in whichever way they want, and hence get away with a lot of actions under the guise of varied interpretation.

The provision also leads to arbitrariness in the actions of the executive. The arbitrariness comes from the fact that it is completely in the hands of the passport authorities to decide whether or not, and how to proceed in a particular case. The words ‘deems it necessary’ give the passport authorities complete freedom to act in whichever manner they want, and in whichever cases they want. Thus there is no uniformity or reasonableness in the actions of the passport authorities, and their actions could differ from case to case.

E.P Royappa v. State of Tamil Nadu & Another,[1974] 2 SCR 348, was the judgement applied by the Supreme Court to further justify their views. It was held in this case that Article 14 is one of the pillars of the Indian Constitution and hence cannot be bound by a narrow and inflexible interpretation. Article 14 should thus be given the widest interpretation possible, which also includes reasonableness and arbitrariness of certain provisions of the legislations.

Based on these observations the Court held Section 10(3)(c) of The Passport Act violative of Article 14 of the Constitution.

 

  1. Violation of the Principle of Natural Justice: The Audi AlteramPartem Rule –

The audialterampartem rule is one of the three principles of natural justice, and forms an important part in defining the constitutionality and fairness of any procedure. The literal translation of audialterampartem is “hear the other side”. In a layman’s language it basically means that both the sides should be given the opportunity to present their case before a decision is formulated for the case. In the present case, Maneka Gandhi was denied reasons for the impounding of her passport, which is unfair since every person has the right to know the grounds on which any executive action is being taken against him/her. Also, she was never given a chance to present her own case before the authorities.

The principle of audialterampartem requires that before the final order for the impounding of her passport was passed, Smt. Maneka Gandhi should have been given a chance to approach the authorities and to bring to light her part of the story so that the order for impounding of the passport would have been just. There is always the possibility of arriving at a one sided conclusion when only one party has been heard and the other is denied that opportunity. Thus to keep the orders completely objective and free from bias, it is absolutely imperative that both parties to a situation must be given a chance to put forward their side of the story.

In the present case, during the Court proceedings itself, the passport authorities ultimately ceded to the fact that they had been wrong in not providing Smt. Maneka Gandhi a chance to present her case. Thus, they ultimately agreed to withhold the order and give her a chance to present her case before the concerned authorities. But what is important to note is that the authorities had been held wrong in the first place, and only to mitigate the blame had they accepted to let her present her case. The final change of events prevented them from being held liable. Otherwise, they were definitely in the wrong and even the Court had held that their action had been arbitrary and contrary to the principles of natural justice.

  1. Section 10(3)(c) not Violative of Article 19(1)(A) and Article 19(1)(g) of the Constitution –

Article 19(1)(a) of the Constitution talks about the freedom of speech and expression guaranteed to all citizens of the country. Article 19(1)(g), on the other hand, talks about freedom to carry out any trade and profession. Smt. Maneka Gandhi had alleged that the order to impound her passport also violates these two rights of hers. She alleged that the freedom of speech and expression also includes in its ambit the right to travel abroad to express oneself among the people of other nations. Thus according to her, the freedom of speech and expression also included the right to go abroad to mingle with people, to carry out an exchange of ideas, to be able to converse with the people of other nations, and thus to be able to freely speak and express oneself outside India as well. Now since she had been denied the right to travel out of India due to the impounding of her passport, she alleged that her right to freedom of speech and expression had been violated. The same way, she said that since she was a journalist, it was part of her profession to travel to different parts of the world, to cover news issues. Thus by denying her the opportunity to travel abroad, the passport authorities had violated her right of trade and profession.

It was held by the Court that even though the above mentioned contentions were correct and that such an order would in fact amount to violations of Article 19(1)(a) and 19(1)(g), there was nothing to prove that Ms. Gandhi was scheduled to travel on an official tour at the time the impugned order was passed and her passport was impounded. Neither was there anything to prove that she had some earnest need to travel abroad towards realization of her right of expression under article 19(1), for eg. Public speaking, dancing, literature, art, etc.Thus this argument was rejected and the order was not held to be violative of Articles 19(1)(a) and 19(1)(g).

However, the Court did go on to clarify that if at any point of time in the future she was denied her passport from the government when sheneeded or wanted to travel abroad to exercise either of the two rights under 19(1)(a) and 19(1)(g) and the government denied such rights it would be considered to be an infringement of these two fundamental rights.

 

  1. The order is violative of Article 21 of the Indian Constitution.

In the case of Satwant Singh Sawhney v D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors, the Supreme Court held by a majority judgement that the expression 'personal liberty' in Article 21 takes in the right of locomotion and travel abroad, and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law. This decision was accepted by the Parliament and the infirmity pointed out by it was set right by the enactment of the Passports Act, 1967.

Keeping in mind this right, Smt. Maneka Gandhi alleged that her right to travel abroad had been violated by the passport authorities. Also, the clause talking about ‘procedure established by law’ was contended in that the procedure adopted in this case was arbitrary and unfair. Maneka Gandhi contested that the procedure in this particular case was violative of the audialterampartemrule; it was arbitrary in that she was denied the statement of reasons for the impounding of her passport; and it was also violative of her fundamental rights because she was being denied the right to travel abroad under Article 21, without being given valid reasons for the same.

As far as the procedural discrepancy was concerned, the attorney for the government accepted the fact that the actions had been arbitrary and hence she was given the chance to put forward her contentions. Thus that anomaly was taken care of. As far as the question of her fundamental rights was concerned, it was held that true her fundamental right had been violated, but it was in the interest of the general public. The Court has adopted a liberal interpretation of Article 21 in the case, and expanded its ambit by leaps and bounds. However, the Court has refrained from outrightly commenting on this issue in this particular case.

 

OBITER DICTA OF THE CASE –

  1. Freedom of Speech and Expression {Article 19(1)(a)} is not bound only to the national territories of India –

This was a landmark opinion of the Court and one that was highly celebrated by the entire country. The Court in the course of this case opined that the right to freedom of speech and expression, as guaranteed to all the citizens of the country, was limitless in that it had given to the citizens a vast number of rights irrespective of whether they were in India or abroad. The Court held that if the Constitution makers had intended this right to be bound by the territories of the country, then they would have expressly mentioned so as they have done for various other rights, such as the right to settle down freely, or the right to assemble freely. However, since no such words had been added at the end of this provision, the Court felt that it was its duty to give it the widest interpretation possible.

Also, supporting this view was the fact that the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10th December, 1948 and most of the fundamental rights which we find included in Part III were recognised and adopted by the United Nations as the inalienable rights of man in the Universal Declaration of Human Rights. This further supported the view of the Court in that even though Indian Courts may not have jurisdiction outside the territory of India, but these rights as guaranteed by the Indian Constitution would still be maintained since they were now fortified by the Universal Declaration of Human Rights which was adopted by almost all the countries around the globe.

Giving this kind of an opinion was a landmark judgement and even though it may not have the value of a precedent (since it is an obiter),Courts all over the country have adopted this view of the Supreme Court, and used it in their judgements.

  1. Article 21 is not to be read in isolation; all violations and procedural requirement under Article 21 are to be tested forArticle 14 and Article 19 also.

The Supreme Court in the present case had adopted the widest possible interpretation of the right to life and personal liberty, guaranteed under Article 21 of the Constitution.  Bhagwati, J. observed:

The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.”

Also, with respect to the relationship between Article 19 and Article 21, the Court held that Article 21 is controlled by Article 19, i.e., it must satisfy the requirement of Article 19. The Court observed:“The law must therefore now be settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty, and there is consequently no infringement of the fundamental right conferred by Article 21 such a law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenges of that Article.”Thus a law “depriving a person of ‘personal liberty’ has not only to stand the test” of Article 21, but it must stand the test of Article 19 and Article 14 of the Constitution as well.

CONCLUSION

The case is considered a landmark case in that it gave a new and highly varied interpretation to the meaning of ‘life and personal liberty’ under Article 21 of the Constitution. Also, it expanded the horizons of freedom of speech and expression to the effect that the right is no longer restricted by the territorial boundaries of the country. In fact, it extends to almost the entire world. Thus the case saw a high degree of judicial activism, and ushered in a new era of expanding horizons of fundamental rights in general, and Article 21 in particular.

 

Picture Credits: http://www.detectiveupdate.com/advocate/a-new-begining-of-the-right-to-life-and-liberty-maneka-gandhi-case/attachment/second_life_passport-774657/

Judiciary- Status & Standing

The Indian judiciary has been performing the sacrosanct function of delivering justice to people. The impartial and unbiased attitude of the judiciary makes it dependable. It is needless to mention that the judiciary has served the country with fortitude and determination. However, it is an undeniable fact that even the best men fall prey to corrupt practices. Under such circumstances ascertaining the accountability of government organs become significant.There has been a little vagueness as to whether these corridors of power fall under the domain of state or not.

The status of judiciary under Article 12 of the Indian Constitution is not clear, which leads to various interpretations of the word ‘judiciary’. It is important to know that if judiciary falls within the purview of Article 12 of the constitution, the fundamental rights can be enforced against it and if it does not, the fundamental rights cannot be enforced against it. The foremost benefit of bringing the judiciary under Article 12 will be to make the judges accountable for the violation of fundamental rights which they generally do in many cases by giving contrasting decisions based on same facts in different cases.

The following text will talk about the different judicial decisions, which throw light on the situations when the judiciary can come under the ambit of Article 12 and when it cannot. Another part of this article will deal with the interpretations of the judiciary on whether the definition of “state” includes judiciary in itself or not? The next part of the Article will scrutinize the exact language of Article 12 of the Constitution. And lastly the conclusion will argue to bring the judiciary under the purview of Article 12 for the greater good.

 

Court’s interpretation through various cases:

There has been lots of discussion in the following cases on whether it was just the non judicial functions of a judiciary that would fall within the scope of Article 12 or whether the exercise of judicial function could also feature in this discussion: from the PremGarg v. Excise Commissioner[1],BudhanChoudhary v. State of Bihar[2],A.R. Antulay v.R.S.Nayak[3],N.S.Mirajkar v. State of Maharashtra[4] to Rupa Ashok Hurra v. Ashok Hurra[5]” the conclusions arrived at by the court has been contrasting.

The most recent case on this matter was in 2002 in the case of, “Rupa Ashok Hurra v. Ashok Hurra[6]”. It was pointed out by Justice Syed Shah Mohamed Quadri that Article 32 can only be invoked for the enforcement of fundamental rights and it should be maintained that no judicial order by any superior court in any situation should violate any fundamental right. As it has been seen, the superior courts do not fall within the purview or under the ambit of the Article 12 of the Constitution as “state or other authorities”.

Semantic of Article 12:

 

It is important to scrutinize the language of Article 12[7] in order to conclude whether the judiciary is State or not under Article 12 of the Constitution.

It is conceived from the plain reading of the Article 12 that under the constitution, judiciary has not gone beyond the scope/ambitof Article 12. As it is an established fact that the “judiciary” is one of the organs of a State so it proves that it should also be subjected to the same constitutional obligations, duties and limitations like other organs.

If one reads Article 12, the term “includes” and not “comprises” has been used. There is a lot of difference between the meanings of these two terms. There are number of good reasons for mentioning just the “Parliament” and the “Legislature” and not the third organ of the State i.e. the Judiciary. It is important to note that according to Article 12[8], the Judiciary is an essential organ of the State. It has the power to make rules under certain circumstances.

Jurists like H.M.Seervai, V.N.Shukla on the question of whether judiciary is State or not, consider judiciary to be State. Articles 145 and 146 of the Constitution of India support their view as follows:

(i) The Supreme Court is empowered to make rules for regulating the practice and procedure of the Courts.

(ii) The Supreme Court is empowered to make appointments of its staffs and servants; decide its service conditions.

According to the text given in DD Basu’s, “Commentary on the Constitution of India”, “the fundamental rights were incorporated into our constitution to limit the power of executive as well as legislative authorities”.[9] It means that the main motive of the fundamental rights was to limit the misuse of power given to the two organs of the State. It cannot be ascertained that there will not be any misuse of power in judiciary. The judiciary is also one of the organs of the State hence it should also be treated like the other two organs by including it under the ambit of “State”.

Another viewpoint stipulatedby Justice Seervai, which can be read as, “It totally depends on the distinction between the judicial and non-judicial functions of courts[10]”. When the court exercises its non-judicial functions, the courts will fall under the ambit of the definition of state under article 12; whereas when courts exercises it judicial obligation there are no occasions where it attracts violation & infringement of fundamental rights, hence the question of bringing the courts within definition of state would not arise.

It can be understood with the following example. If in the exercise of its rule making powers, it makes some rules that contravene with the Fundamental Rights of the citizens, the remedy is available under Articles 32 & 226. But when the judiciary is exercising its judicial function, i.e., it has to decide whether a person’s fundamental right is violated by the legislature or the executive, it cannot be called a “State” under Article 12.

It can be argued that as guardians and sentinels of the Constitution, the courts must always be as much duty bound to defend and give effect to the directive principles as to the fundamental rights irrespective of their inclusion within the definition of ‘the state’.[11]

Sometimes the judiciary while interpreting might end up giving decisions that are per incuriam (which translates as ‘through lack of care’), which in turn might infringe the fundamental rights. If a party is aggrieved by the decision, the correct remedy is appeal/ review jurisdictions. The remedy is not in alleging that the court itself has violated a Fundamental Right by giving a wrong decision. So the courts cannot be subjected to writ jurisdiction.

Judicial analysis:

 

To give a wider dimension to Fundamental Rights, the judiciary has interpreted ‘State’ in different contexts at different times. The principle of “Ejusdem generis” was evolved in “University of Madras v. Santa Bai[12]”, the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions.

But in “UjjamBai v. Union of India[13]”, Supreme Court rejected the principle of ejusdem generis. It observed that there is no common genus between the authorities mentioned in Article 12.

Next was the case of “Ajay Hasia v/s Khalid Mujib[14]”, where the court observed that the test to know whether a juristic person is state is not how it has been brought but why it has been brought?

Contrasting judgments by judiciary proving the infringement of fundamental rights:

 

It started with the verdict in the case, “Smt. Triveniben v State of Gujarat[15]”, where the accused contended that there was a long wait in order to execute the punishment of death sentence. Hence there was violation of Article 21. The court stated that “It has been universally recognized that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra v. Delhi Administration[16], but nobody could succeed in giving him peace of mind. So it is not violative of article 21 of the constitution.”

The contrasting decision came up in the case “Harbans Singh v. State of U.P.[17]”, where the court issued a stay on the death sentence of the accused. The court decided that it has “very wide powers conferred on it for due and proper administration of justice.” The overarching idea was that of inherent power and jurisdiction of the court to deal with “extraordinary” situations in the “larger interest of justice”.

In the other similar case, “Attorney General v.Lachma Devi[18]”, the Supreme Court under Article 32 of the Constitution passed an order against the judgment and to justify it, the Supreme Court gave the reasoning that it was contravening Article 21.

Conclusion:

To sum up the above discussion, it can be said that time and again, the judiciary has always justified its position of falling under the ambit of article 12 and contrary to it in many instances judiciary has successfully justified itself to be departed from article 12 . This should notallow the judiciary to change its position according to its convenience. It should be made clear to the general public whether they can enforce their fundamental rights against the judiciary.

It is very important for the fulfillment of basic human rights to know the position of the judiciary under Article 12. There are many good reasons to include the judiciary as State under Article 12. One of the important advantages is that the judges will be made accountable for their decisions against the violation of fundamental rights.

Another reason can be that it will limit the power of the judiciary to make any rules and pass any orders without any restriction as they do not fall within the ambit of Article 12. It will also help in reducing the violation of fundamental rights by the contrasting decisions in the same type of the cases.

Therefore, it will be in the interest of the greater good that the judiciary should be brought under the ambit of Article 12 of the Constitution.

[1] AIR 1963 S.C. 996

[2] AIR 1955 SC 191

[3] 1988 AIR 1531

[4] AIR 1967 SC 1

[5] (2002) 4 SCC 388

[6] (2002) 4 SCC 388

[7]Art-12: Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India

 

[9]DD Basu, “Commentary on the Constitution of India”, pg. 200, Vol A/A1, Kolkata

[10]Cf. H. M Seervai: Constitutional Law of India, 225 ff (3rdediton, 1983)

[11]Mahendra P Singh, VN Shukla Constitution of India, pg.34 (11th ed.), Lucknow

[12] AIR 1954 Mad 67

[13] AIR 1962 SC 1621

[14] AIR 1979 SC 1628

[15] 1989 1 SCC 678

[16][1978] 4 SCC 491

[17] (1982) 2 S.C.C 101

[18] AIR 1986 SC 467

Picture Credits: blog.scconline.com

The Juvenile Justice (Care and Protection of Children) Bill, 2014: The Legal Conundrum

“There can be no keener revelation of a society’s soul than the way in which it treats its children”-Nelson Mandela

Introduction

It is a worldwide phenomenon that crime and criminal activities are on the rise. Increasingly, more youths are involved in acts of criminality, delinquent, and antisocial behaviour. The evolution of the juvenile justice system in the world was based on the idea that children and adolescents are different from adults.[1]A separate and distinct juvenile justice system was founded on the Progressive Era belief that juvenile offenders were merely delinquent and in need of individualized treatment wherein the ultimate goal was their rehabilitation.[2] At least three different justifications have been advanced for a juvenile justice system: (1) compared to adults, children are more treatable; (2) compared to adults, children are less culpable; and (3) compared to adults, children are less deterrable.[3]

Notably, the past decade marks a revolution in the attitude of the state toward its offending children, not only in nearly every American Commonwealth, but also throughout Europe, Australia, and some of the other lands.[4] In India, the horrendous gang rape on 16th December 2012 triggered a nationwide debate on a number of issues concerning the safety of women. One of such issues include the age of criminal responsibility since one of the six individuals involved was a juvenile. It led to an unprecedented outpouring of anger and triggered collective introspection on the safety of women. In the midst of this agitation, the media shared details about the juvenile offender whose odious acts of violence further sculpted public opinion.[5]There were massive protests calling for amendments in the juvenile system by reducing the age of criminal responsibility.

This furor over juvenile justice triggered one major policy initiative by Ministry of Women and Child Development i.e., introduction of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (the “Bill”).The present write-up aims to shed light on the provisions of the Bill and bring to forefront the debate on decreasing the age of criminal responsibility. The write-up in the light of various authorities contradicts the proposed amendment and argues that treating children alleged to have committed ‘serious’ crimes as irredeemable criminals, and transferring them to the adult system contradicts the essence of juvenile justice system. The write-up debates these and other issues appurtenant thereto.

The Juvenile Justice System in India

The Juvenile Justice System in India is based on the principle of promoting, protecting and safeguarding the rights of children. Recognising the vulnerability of children and the need for special and different treatment, it was in 1986 that for the first time, a uniform Juvenile Justice Act (“JJA 1986”) was enacted for the whole of India, when the Parliament decided to replace the Children’s Acts in various States in India.[6] However, the history of the implementation of the JJA 1986, is a history of hopes not realised and promises not fulfilled. A review of the Act was undertaken to look into the lacunae as well as its non-implementation. This process together with India’s ratification of the UN Convention on the Rights of the Child (CRC) in 1992, as well as the changing social attitudes towards offences by children and the need for a more child- friendly juvenile justice system were some of the factors that led to the passing of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the “JJ Act”).[7]

Since then, the JJ Act has indubitably been a saviour for the rights of the children. The objective of this legislation is to ensure the care, protection and development needs of the children who are either neglected or have come into conflict with law constituting delinquency.[8] Juvenile Justice is more concerned with the rehabilitation of juveniles and to primarily attempt to prevent juveniles from running into conflict with law.


The Juvenile Justice (Care and Protection of Children) Bill, 2014: Diagnosing the Licitness

On 17thJuly, 2013, the Supreme Court of India dismissed pleas to reduce the age for juveniles from 18 to 16.[9] The plea was a combination of seven writ petitions which challenged the constitutionality of the JJ Act. However, the apex court refused to hold the act as ultra vires and held taking any adverse step would make it virtually impossible for a child in the age group of sixteen to eighteen to be reintegrated into mainstream society, and would rather allow them to develop into hardened criminals, which does not augur well for the future.[10]In another public interest litigation decided on March 28, 2014, in Dr. Subramanian Swamy and others v. Raju and Ors.[11] , the SC refused to read down the provisions of the JJ Act, 2000, in order to account for the mental and intellectual competence of a juvenile offender and refused to interfere with the age of a juvenile accused, in cases where juveniles were found guilty of heinous crimes.[12]

Even though, this decision of the court was widely appreciated by one segment of the society due the virtue of it being an equitable safeguard of public morality and children’s rights, the counter-offensive believed that this judgment is detrimental to holistic justice.[13] Highly publicized and sensationalized cases feed the public angst and legitimize calls by both professionals and the public at large to get tough on delinquents. The outcry for reducing the age of Juveniles from 18 to 16 which arose as a fall-out to the ghastly Nirbhaya case in 2011 seems to be reaching a crescendo with a new government taking over.[14]

In response to the above circumstances, the Juvenile Justice (Care and Protection of Children) Bill, 2014 (the “Bill”) was introduced by the Minister of Women and Child Development, on August 12, 2014.[15]In the proposed changes to the JJ Act, there are numerous improvements, such as, incorporation of basic principles like presumption of innocence of malafide or criminal intent upto 18 years, reiteration of family and community resources, right to privacy and confidentially etc.[16]

The Bill however, introduces a special provision for the possibility of trying 16-18 year olds committing heinous offences[17], as adults.[18] After an enquiry under Clause 14(1) and 14(2) is made, Clause 17(3) empowers the Board to transfer the case to the court having jurisdiction over such offence under the Indian Penal Code. This creates a peculiar situation since this provision is completely out of tune with the nature and scope of the JJ Act as well as other general provisions of the Indian Penal Code, 1860 and Probation of Offenders Act, 1958 both of which make exceptions for children and young offenders in accordance with the Indian Constitution and the International Instruments.[19]

While the Bill contains some remarkable provisions which has received wide acceptance[20], clauses 14 and 17(3) are considered to be regressive and incompatible with the rehabilitative foundation of juvenile justice. Understanding how transfer provisions[21] affect juvenile criminal decision making is important since criminal careers start early, so improving the effectiveness of incentives designed to reduce juvenile crime could greatly reduce the social costs of crime.[22] Early intervention by the State can reduce crime, delinquency and antisocial behaviour and may save their later adult lives.[23]

The nationwide policy shift toward transferring juvenile offenders to the criminal court is based largely on the assumption that more punitive, adult criminal sanctions will act as a deterrent to juvenile crime.[24]The Bill proposes to bring the transfer system, allowing juveniles to be tried as adults for certain criminal offences, which exists in the United States since 1979. However in the U.S., mounting concern that the juvenile justice system has strayed from its mission of rehabilitation has catalyzed a vocal campaign for large scale policy reforms. The reform movement invokes an abundance of scientific discourses, including neuroscience and evidence-based practice, to situate arguments for a more humane, cost-effective, and youth specific system.[25]Therefore, the aforementioned provisions in the Bill contradict the fundamentals of the juvenile justice system.

  1. Proposed Model is ineffective in reducing Juvenile Crime Rateand Recidivism:

Massive literature suggests that prosecution of children as adults does little to address the juvenile crime rate, public safety, or reduce recidivism; indeed some research has even found greater risks to public safety among children transferred to adult system.[26]

Criminologists have evaluated the effects of New York’s Juvenile Offender Law on the rate of serious juvenile crime, and found that the threat of adult criminal sanctions had no effect on the levels of serious juvenile crime.[27] Two recent large-scale studies indicate that juveniles who receive harsher penalties when tried as adults are not “scared straight”.[28] In fact, after their release, they tend to reoffend sooner and more often than those treated in the juvenile system.[29]

In terms of specific deterrence i.e., whether trying and sentencing juvenile offenders as adults decreases the likelihood that they will reoffend- six large-scale studies have found higher recidivism rates among juveniles convicted for violent offences when compared with similar offenders tried in juvenile court.[30] With respect to general deterrence i.e., whether reducing age of criminal responsibility deters any would-be juvenile offenders, the bulk of empirical evidence suggests that it has little or no general deterrent effect.[31] Studies have found that young people transferred to the adult criminal justice system have approximately 33.7% more re-arrests for felony crimes than youth retained in the youth justice system.[32]

 Neuroscience Confirms Immaturity:

Explicit reference to the literature on neuroscience of adolescence is slowly entering the legal arena[33] and the policy discussions.[34]Today, there exists numerous incontrovertible evidence that adolescence is a period of significant changes in brain structure and function. Massive research in this area enables us to consider the development of key brain structures in terms of decision-making and aids in discussion of where the minimum age should be set.[35]

According to a study by the Royal Society, the prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature and is not fully developed until around the age of 20.[36] Research has also shown that there is huge variation between individuals and that the development of the slowest-developing parts of the brain is associated with comparable changes in mental functions such as IQ, suggestibility, impulsivity, memory and decision-making.[37] Therefore, as the cognitive skills of adolescents are developing, adolescents’ behaviour is often impulsive and adolescents lack the ability to focus on the consequences of their behaviour.[38]

Findings in neuroscience and adolescent psychology confirm that juveniles are more susceptible to negative influences and peer pressure, are less likely to focus on future outcomes, are less risk-averse than adults, have poor impulse control, and evaluate risks and benefits differently all of which pre-dispose them to make poor decisions.[39]Most importantly, ‘because the adolescent brain is still developing, the character, personality traits and behaviour of adolescents are highly receptive to change; adolescents respond well to interventions, learn to make responsible choices, and are likely to grow out of negative or delinquent behaviour’.[40] Therefore, lowering the age of criminal responsibility would eliminate the possibility of recovery of a delinquent juvenile back to the society.

Even at ages 16 and 17, when compared to adults, juveniles on average are more impulsive, aggressive, emotionally volatile, likely to take risks, reactive to stress, and prone to focus on and overestimate short-term payoffs and underplay longer-term consequences of what they do.[41] Therefore, it is believed that a dividing line of age 18 is better than 16 and that rehabilitation works better for juveniles. Research on psychological aspects of maturity of judgment: responsibility, temperance, and perspective, that are likely to affect judgment, indicates that the greatest differences are found in comparisons between early adolescents versus middle and later adolescents.[42]

  1. Against the fundamentals of Juvenile Justice System

Juveniles alleged or found to have committed a crime, (whether ‘serious’ or not) are vulnerable and not only deserve to be treated in a manner that should make this nation proud, but are also entitled to be dealt with in accordance with the vision of the Preamble of the JJ Act 2000[43]’.Clause 17(3) is indubitably not in the best interest of a juvenile and nor is it child-friendly. Worse, it will result in the denial of treatment and developmentally appropriate care and protection and actually propel their ultimate banishment from the community.

            Children who are in conflict with the law have a lesser culpability than adults because they ‘differ from adults in their physical and psychological development, and their emotional and educational needs’.[44] Evidence shows that “programs offering counselling and treatment typically reduce recidivism, while those focused on coercion and control tend to produce negative or null effects.[45]

The main reason for U.S. and other nations, to enact the juvenile transfer laws was sharp rise in the national juvenile crime rate.[46] However, in India, juveniles in conflict with law alleged to have committed serious offences constitute a miniscule population. National Crime Records Bureau’s Report reveals that the juvenile crimes accounted for only 0.5% of total crimes committed in 2013, and 1.2% of the total crimes in India during 2013.[47]

Evidence on the failure of the transfer system delineated above is compelling reason as to why India should prevent itself from replicating a model that has been more deleterious than progressive. Several countries that set a lower age of criminal responsibility have now started to raise such age to eighteen on account of evidence that full maturity in culpability and blameworthiness comes later than eighteen and not earlier.[48]

 Need of the Hour

Indeed, images of violent young predators, of teenagers out of control, is an excellent way to sell newspapers, but it simply ignores the interests and reality of children’s lives in our society.[49] Amending the law instantaneously will however not serve the purpose. What needs to be seen is whether the reformation homes and the rehabilitation mechanism enshrined under the JJ Act has the quality of truly reforming the juveniles in conflict with the law. In India, while most policies are well intentioned and intricate in their design, they face severe implementation deficits and the JJ Act is no exception to this.

Various studies conducted by UNICEF and Asian Centre for Human Rights (ACHR) highlight the condition of the juveniles in the juvenile homes and the gaps between the laws and their implementation.[50] The Studies reveal that the Juvenile reformation homes or ‘observation homes’ in India suffer from multiple shortcomings.  Beds are overcrowded, educational or recreation facilities are virtually non-existent, complete lack of sanitation and hygiene, medical facilities are inadequate and most importantly the different categories of Juveniles and criminals being kept together placing the younger ones at high risk of abuse.[51]In many places, the Juvenile Justice Board sittings take place in the Court premises[52] contrary to Rule 9[53] of the Rules enacted under the JJ Act.

The lack of better infrastructural facilities for juvenile homes and access to quality counselling and support for child offenders is quintessentially responsible for the current encumbrance to unobstructed flow of justice.[54]Considerable failures in implementing this law also stems from the lack of coordination amongst various institutions involved in the process. Hence, proper and efficient implementation of the present Act is perhaps the need of the hour before we think about amending and narrowing the scope of law.

 …………………………………………..

 [1]     Michael H. Langley & H.B. Drone, Juvenile Justice: Reneging on a Sociolegal Obligation, 47 Social Service Review.4, 561 (1973).

[2]     Benjamin Steiner & Emily Wright, Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance?, 96The J. of Cri. L.& Crimin.4, 1452 (2006).

[3]     Jennifer L. Woolard, Mark R. Fondacaro & Christopher Slobogin, Informing Juvenile Justice Policy: Directions for Behavioral Science Research, 25 Law and Human Behaviour, Special Issues on Children, Families, and the Law.1, 14 (2001).

[4]     Julian W. Mack, The Juvenile Court, 23 Har. L. Rev.2, 104 (1909).

[5]     Bindu Shajan Perappadan & Nirnimesh Kumar, Juvenile gets 2 years in Delhi gangrape case, The Hindu, September 10, 2013.

[6]     Nilima Mehta,Child Protection and Juvenile Justice System for children in need of care and protection,Childline India Foundation, 38 (2008).

[7]     The Act was based on the UN Convention on the Rights of the Child, the ‘Beijing Rules’, United Rules for the Protection of Juveniles Deprived of their Liberty.Ved Kumari, The Juvenile Justice System in India,15 (Oxford University Press, 2008).

[8]     Preamble of the JJ Act, 2000; See alsoJaishree Jaiswal, Human Rights Of Accused And Juveniles: Delinquent In Conflict With Law, 204 (Gyan Books, 2005); Sunil Kanta Bhattacharyya, Juvenile Justice: An Indian Scenario, 80-103 (Daya Books, 2000).

[9]     Salil Bali v Union of India, (2013) 7 SCC 705.

[10]    Id., at para 48.

[11]    2014 AIR SCW 2021.

[12]    Anil Malhotra, Towards a Comprehensive Juvenile Justice Law, The Hindu, July 18, 2014.

[13]    Dhruva Sareen, Contrasting Conflict: Lowering the Age of Juvenile Justice, 7 India Law Journal.2 (2014).

[14]    Amodh Kanth, Reducing the age of Juveniles will kill their spirit, SAHARA SAMAY, November 14, 2014.

[15]    http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-bill-2014-3362/ (last visited December 20, 2014).

[16]    Supra note 18.

[17]    A heinous offence is one for which the minimum punishment under the Indian Penal Code is seven years. Clause 14 of the Bill enlists the sections of Indian Penal Code.

[18]    Clause 14(1) of the Bill.

[19]    Section 83 of the Indian Penal Code.

[20]    Supra note 15.

[21]    Clauses 14 and 17 of the Bill.

[22]    Peter W. Greenwood,Changing Lives: Delinquency Prevention as Crime Control Policy, 25 (University of Chicago Press, 2005).

[23]    Hirokazu Yoshikawa, Long- term effects of early childhood programs on social outcomes and delinquency, 5 The Future of Children.3, 51-75 (1995).

[24]    Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, June 2010, available at https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf (last visited December 20, 2014).

[25]    Laura S. Abrams, Juvenile Justice at a Crosroads: Science, Evidence, and Twenty-First Century Reform, 87 Social Service Review.4, 725 (2013).

[26]    Juvenile Law Center’sYouth in the Adult System (2013), available at http://www.jlc.org/current-initiatives/promoting-fairness-courts/youth-adult-system (last visited December 20, 2014).

[27]    Donna Bishop,Juvenile Offenders in the Adult Criminal System,27 Crime and Justice, 81 (2000).

[28]    http://www.pbs.org/wgbh/pages/frontline/shows/juvenile/stats/kidslikeadults.html (last visited December 21, 2014).

[29]    L. Winner, L. Lanza-Kaduce, D. Bishop, and C. Frazier, The transfer of juveniles to criminal court: Reexamining recidivism over the long term, 43 Crime and Delinquency.4, 548-563 (1997).

[30]    Supra note 28.

[31]    R.E. Redding, & E.J. Fuller, What do juvenile offenders know about being tried as adults?: Implications for deterrence, Juv. & Fam. C. J., 35–45 (2004).

[32]    Ibid. Around 80% of youth released from adult prisons reoffend often going on to commit more serious crimes. SeeRaise the Age NY, Get the facts (2013), available athttp://raisetheageny.com/get-the-facts (last visited December 25, 2014).

[33]    See Roper v. Simmons, 543 U.S. 551 (2005); and Graham v. Florida, 130 S. Ct. 2011 (2010).

[34]    Prof. Elizabeth S. Scott, Criminal Justice and the Juvenile Brain, Columbia Law School, July 10, 2013, available at http://www.law.columbia.edu/media_inquiries/news_events/2013/july2013/scott-brain-research(last visited December 21, 2014).

[35]    http://issues.org/28-3/steinberg/(last visited December 20, 2014).

[36]    The Royal Society, Neuroscience and the Law (2011), available at https://royalsociety.org/policy/projects/brain-waves/responsibility-law/(last visited December 20, 2014).

[37]    Alok Jha, Age of Criminal Responsibility is too low, say Brain Scientists, The Guardian, December 13, 2011.

[38]    MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice. Issue Brief #3: Less Guilty by Reason of Adolescence, available athttp://www.adjj.org/downloads/6093issue_brief_3.pdf (last visited December 21, 2014).

[39]    Elizabeth S. Scott and Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, 18 The Future of Children.2,15 (2008).

[40]    Ibid.

[41]    Teens’ ability to consider what might happen later on is still developing. See L. Steinberg, E. Cauffman, J. Woolard, S. Graham, and M. Banich, Are Adolescents Less Mature Than Adults? Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip-Flop”,64 American Psychologist, 583-594 (2009).

[42]    A.R. Iselin, Jamie DeCoster & Randall T. Salekin, Maturity in Adolescent and Young Adult Offenders: The Role of Cognitive Control, 33 Law &Human Behaviour.6, 455-469 (2009).

[43] ‘providing for proper care, protection and treatment by catering to their developmental needs, and by      adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation’ and ‘re-socialization

[44]    Penal Reform International, The Minimum Age of Criminal Responsibility, Justice for Children Briefing No. 4, 2013, available at http://www.penalreform.org/wp-content/uploads/2013/05/justice-for-children-briefing-4-v6-web_0.pdf (last visited December 26, 2014).

[45]    Richard A. Mendel, No Place for Kids: The Case for Reducing Juvenile Incarceration, Annie E. Casey Foundation, 16 (2011),available athttp://www.aecf.org/OurWork/JuvenileJustice/~/media/Pubs/Topics/Juvenile%20Justice/Detention%20Reform/NoPlaceForKids/JJ_NoPlaceForKids_Full.pdf(last visited December 26, 2014).

[46]    James C. Howell, Barry C. Feld, et.al., Young Offenders and an Effective Response in the Juvenile and Adult Justice Systems: What Happens, What Should Happen, and What We Need to Know, Study Group on the Transitions between Juvenile Delinquency and Adult Crime, 2013, U.S. Department of Justice, available at https://ncjrs.gov/pdffiles1/nij/grants/242935.pdf (last visited January 1, 2015).

[47]    National Crime Records Bureau, Report: Crime in India, 2013, available at http://ncrb.gov.in/CD-CII2013/home.asp (last visited January 1, 2015).

[48]    Connecticut passed legislation in July 2007 to raise the age of majority from 16 to 18. Also recently, legislators in Missouri, Illinois, New Hampshire and North Carolina have also started having extensive debates over whether to raise the age to 18. See Jeffrey Fagan, Juvenile Crime and Criminal Justice: Resolving Border Disputes, 18 The Future of Children.2, 107 (2008).

[49]    Frank E. Vandervort & William E. Ladd, The Worst of All Possible Worlds: Michigan’s Juvenile Justice System and International Standards for the Treatment of Children, 78 U. DET. MERCY L. REV. 203, 205 (2001).

[50]    A survey that was conducted by ACHR (Asian Centre for human rights) in the Government Observation Home, Special Home and Children’s home for the boys in Berhampur revealed that many juveniles had fled to escape the torture and sexual abuse of the care takers, other staffs as well as the older inmates when they fail to do the work on their behalf. See UNICEF, Juvenile Justice- An initiative by KIIT, 2 (2011), available athttp://www.ksrmccs.ac.in/wp-content/uploads/2011/11/JUVENILE-JUSTICE.docx (last visited January 1, 2015).

[51]    Depriving these children from food is the most prevalent punishment. Supra note 59.

[52]    Ibid.

[53]    Rule 9 prohibits the Board to hold its sittings in the Court premises. See Rules under the Juvenile Justice (Care and Protection of Children) Act 2000, available at http://wcd.nic.in/childprot/juvenile%20justice%20_care%20and%20protection%20of%20children_%20rules%202%E2%80%A6.pdf (last visited January 1, 2015).

[54]    Supra note 16.

The Plight of Transgenders In The Global Prison System

A transsexual person is someone who lives or proposes to live in the gender opposite to the one obtained at birth.  The gender in which the transsexual person lives or proposes to live is known as that person’s acquired gender.[1] Moreover, the term  transsexual  has  a precise  medical  definition,  and  is  reserved  for  people  who  desire  to,  or  who  actually do ‘transition’  to the opposite sex , by undergoing  sexual reassignment surgery.[2]

This community is  not only considered an outcast  in the outside world but also within the four walls of the prisons when kept with the general population. Transsexuals usually face a lot of violence and abuse in prisons. The violence is carried out more often by the guards than the inmates.This type of abuse usually takes a form of sexual abuse. The issues and problems related with transgender imprisonment have not gained much momentum for the simple reason that the community is marginalized and infrequently outcast. They thrive in humiliating darkness worldwide. Their voices are curbed if raised; they are underrepresented. No matter how well developed  the country is the Transgenders still face challenges in terms of the behavior of the prisonguards, authorities and inmates. This also includes the deteriorating health conditions they show while in prison.

Furthermore, transgenders have acquired their genders, sometimes by undergoing surgery or by having hormone therapy. Think of the situation where a transgender with feminine characteristics is forcibly thrown to a male ward, it is like keeping both male and female prisoners together. This piece is an attempt to analyze their sexual identities, the problems they encounter in the global prison system and the relevant legal frameworks.

United Kingdom

A detailed new policy document drawn up by Kenneth Clarke’s Ministry of Justice in 2011 requires jail warders to address inmates by courtesy titles such as Mister, must call transsexual prisoners “Miss” or “Ms” under the new mandatory guidelines so as to give the community respect at par with the other genders. Besides this, the 20-page guidebook, issued to prison governors states  that “An establishment must permit prisoners who consider themselves transsexual and wish to begin gender reassignment to live permanently in their acquired gender.[3]

Moreover, from the point of view of the security, it is provided that if it emerges that a prisoner has been placed in the estate opposite to the legally recognized gender, a transfer must be arranged as soon as possible unless the prisoner requests location in this estate.[4]Not to forget, the Equality Act, 2010 stands up against all types of gender discrimination in all types of places.Thus, we see that there are sufficient laws in hand for transgenders inmates but nevertheless, they are suppressed in and outside the society even in the UK.

United States

The courts have recognized that the underlying conditions or the circumstances they are placed in of gender identity disorder is real, and that the provision of medical care includes providing hormones and surgery in appropriate cases. In state prisons, transgender prisoners have frequently been denied any transition-related healthcare.[5]

Transgender people who have not had genital surgery are generally classified according to their birth sex for purposes of prison housing, regardless of how long they may have lived as a member of the other gender, and regardless of how much other medical treatment they may have undergone.[6]

Australia

Australian Human Rights Commission Act 1986 prohibits discrimination on grounds of sex. Similarly, there are gamut of other laws such as Victoria Equal Opportunity Act 1995, Western Australia Equal Opportunity Act 1984, Sex Discrimination Act 1984, et al which secure the rights of different sexes. Despite these, a lingering concern remains, that is with  the management of transgenders in prisons. They are denied required treatment at times, sometimes are subjected to prison violence.

What they can wear, the personal items  they are permitted to purchase, the way in which they  are searched, and the name by which they are referred to by staff and in official prison records do not show a bright picture though.  At times, self- harms are also afflicted by them.

India

Recently, the Indian Supreme Court ruled that transgender people belong to a third gender.[7]Article 14 of the Indian Constitution and some of the  Directive Principles of State Policy enshrine the spirit of  providing to  all the genders an equal opportunity to nourish and flourish. The Bombay High Court had also considered to frame special guidelines for transgender prisoners as their issues need to be addressed effectively. What they complain is about the indifferent behavior of prison staffs. There has been a provision put to have a special ward for these transgenders.

Conclusion

After following through the laws in force of the various prison systems around the world, one might wonder about the nature of problems every transgender faces during imprisonment. (Though these are handful but enough to show the plight of the community.) Similar problems are amplified  in all  parts of the world. The ‘similar’ problems include the discrimination they face in prison wards if kept with other genders , the sexual abuse resulting from it, the denial of medical treatment, the refusal to provide them with proper clothing, the bad attitude of the prison authorities towards them, legal underrepresentation, etc. These are the ‘general’ concerns. The inmates have their own peculiar and complex problems, which makes it more, complicated. It is to be realized that these people have just chosen their sexuality and they have every right to live with dignity and self-worth. One solution could be, to open special prisons for transgenders, in India. The criminal justice system needs an overhaul in this direction as well.It is quintessential for their personal development. The need to answer a psychological question is felt here, if we have prisoner rights for both men and women then, why not for the ‘hijras’,as we refer to them?

 [1] See  Care and Management of Trans sexual prisoners by Ministry of Justice, UK

[2] Rebecca  Mann,  ‘The  Treatment  of  Transgender  Prisoners,  Not  Just  an  American  Problem—A  Comparative Analysis  of  American,  Australian,  and  Canadian  Prison  Policies  Concerning  the  Treatment  of  Transgender Prisoners and a ‘Universal’ Recommendation  to  Improve Treatment’ (2006) 15 Law and Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues  available at http://www.wpath.org/Document2/socv6.pdf

[3]David Barett, Sex swap prisoners get right to bras and make-up available at

http://www.telegraph.co.uk/news/uknews/law-and-order/8363244/Sex-swap-prisoners-get-right-to-bras-and-make-up.html

[4] See supra note 1

[5] Chelsea Manning, Americas prison fails transgender inmates available at http://www.salon.com/2013/08/23/americas_prisons_fail_transgender_inmates/

[6] Ibid.

[7]YogitaLimaye, India court recognises transgender people as third gender available at

http://www.bbc.com/news/world-asia-india-27031180