Suicide threat from Wife / Girlfriend

Did your wife or girlfriend ever threaten to commit suicide? What to do in situations where a man is threatened by his wife or girlfriend or live-in partner of committing suicide?

Many girlfriends or wives are physically, emotionally, financially and socially abusive to men. Many other girlfriends and wives place unreasonable demands on men such as asking men to discontinue relationships with their family and friends. Threatening to harm one can be a way of frightening you into compliance. According to various case examinations, all girls who threaten their husband or boyfriend of suicide never commit it.

If she commits suicide after leaving a note you will in great trouble. What happened is happened, running away from it is not the solution. Know what your preference is and take a decision, in case your right decision brings you any legal complications face it in the legal way. if she does not leave any note but her family and friends in their statement give your name as the cause  of your girl friend suicide then also you will be in trouble.

Contact inspector of local police station and inform him in writing about your Girl friend suicidal tendencies and you should not be held responsible in case such a thing happens. Convince your gf to visit a psychiatrist for treatment. Inform the same to her parents and also to make her to attend counseling. In the unfortunate event of her committing suicide, you may be prosecuted for abetting her suicide.

You may also try to persuade her to get her checkup from psychiatrist from government hospital and also record her conversation from spy cam whenever she threatens to commit suicide and maintain proper record of her every act.

Merely because a person has been named in a suicide note, courts should not immediately jump to the conclusion that he is an offender. "If a person makes an ordinary joke or a casual remark in routine course of ordinary life, and then if the victim commits suicide, which will not attract abetment charges under Section 306 of the IPC.

Simple abuses are not sufficient to provoke a person to commit suicide. If a debtor commits suicide simply because the lender has demanded repayment of his money, the creditor cannot be said to have abetted the suicide. Mere reprimanding does not amount to instigation. Words stated in a fit of anger will not amount to abetment. Casual remark of husband towards his wife in the ordinary course of life will not amount to abetment to commit suicide.

If you do not want to marry her then you should not have continued this relationship. Before putting a person in such emotional turmoil you should have kept the uncertainly of marriage shared with her.

Break the Relationship soon

  1. You should never have made any promise of marriage.
  2. If you do not want to marry her then you should not have continued this relationship. Before putting a person in such emotional turmoil you should have kept the uncertainly of marriage shared with her.
  3. When girlfriend creates a scene by shouting loud in the locality or when she invites others and cries her sorrow in front of others at the same time threatens to commit suicide, one can file for defamation cases.

Know what is Criminal Intimidation

When one threatens another with an injury to reputation, with the intent to cause alarm to that person and forces him to do what he is legally not bound to do, this is called criminal intimidation.

  1. When a girlfriend or wife threatens to commit suicide, in such cases, a case of Criminal Intimidation can be filed.
  2. In the case of marriages, a false threat to file divorce cases or 498A comes from either the wife or from her family members while wife often threatens her in-laws of committing suicide. This amounts to criminal intimidation.

Section 306 in The Indian Penal Code

Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Repeated suicide threats ground for divorce

The husband knows that if his wife commits suicide or attempts to commit suicide, then he will be definitely roped in the offences of Section 304B or 498A of the Indian Penal Code and then continues to live in a shadow of unspoken fear. A solitary instance can be considered as an outburst of the anger or frustration. However, if such threats are given intermittently, then the husband definitely suffers a psychological trauma of remaining under constant fear that his wife is likely to commit suicide if things go against her.

If repeated threats are given by the wife and if the preparations for suicide are made, though having no intention to commit, but with an intention to create a pressure or with a view to gain the expected result from the husband, then it amounts to cruelty. Such repeated utterance of committing suicide is a scarecrow to the husband. If such threats of suicide are given by either of the spouses to the other party then it is definitely shocking and it shatters the basic foundation of trust between two human beings.

How to file and defend a dowry legal case in India

Dowry is a major social menace in India. Every year, countless women are victims to dowry harassment. Some are subjected to torture, while others are found dead in suspicious circumstances.

The Indian legal system, has the following laws in place, which can be used while filing an FIR against the accused-

1- In 1983 section 498-A of the Indian Penal Code (IPC) was introduced to deal with all forms of domestic violence including those which arose from “demand for property from the women and her family”. This in other words dealt with demand for dowry and also included different acts of torture that the in laws indulged in with the wife. These included beating and abusing her, sexual violence, use of cuss words, false imprisonment etc. This can lead to imprisonment for upto a maximum of 3 years.

2- When a woman commits suicide because of dowry related harassment within 7 years of being married section 304-B of the IPC which was amended in the year 1986, should be used to prosecute. The period of seven years has ostensibly been kept to ensure that the limitation period for filing suspected dowry related complaints are high.

3- Section 406 of the IPC is meant to protect “stridhan” – wealth given to bride on the eve of her marriage by the family to ensure her well being in the future. If such wealth is misappropriated by the bridegroom and his family, a non-bailable and cognizable offence is committed which can result in imprisonment for three years with fine.

4- Protection of Women from Domestic Violence Act (2005) too deals with dowry related violence and provides remedy for the same. Though this is largely a civil suit that orders protective decrees for protecting women, if such decrees are not followed the court can initiate criminal proceedings against the erring party.

5- The Dowry Prohibition Act (1960) is a landmark legislation that exclusively deals with tackling dowry exclusively. Section 2 of this act defines dowry as “give and take of any valuable property”. Section 3 and section 4 of the act deals with the punishment for giving, taking and demanding dowry. The imprisonment ranges from 6 months to 5 years and fine ranges between 10,000 rupees to the amount of dowry demanded.

 

 

In case police officials refuse to file an FIR, the State Commission for Women(SCW)  can be reached , you can find the telephone and other related details of the respective SCWs over here-

http://webcache.googleusercontent.com/search?q=cache:http://ncw.nic.in/frmliststatecommission.aspx&gws_rd=cr&ei=LHWlWavTB8XNvgSylqDoBQ

 

 

Similarly, when a man or his family, or both have been accused of dowry harassment, they can file a counter FIR under the following legal provisions-

  1. Sec 120B Indian Penal Code, 1860 – Punishment of Criminal Conspiracy – The husband or the in laws can file a legal case alleging criminal conspiracy from the wife or her relatives. 
  2. Sec 167 Indian Penal Code, 1860 – Public servant framing an incorrect document with intent to cause injury – If you believe that the police authorities are helping your wife in making false complaint and framing incorrect documents you can file a case against them alleging their false framing of documents.
  3. Sec 182 Indian Penal Code, 1860 – False information, with intent to cause public servant to use his lawful power to the injury of another person – What usually happens is that the public servant in his power does something which might not be the true, in short, a false information is circulated so as to depress the evidence.
  4. Section 191 Indian Penal Code, 1860 – Giving false evidence – If you suspect that your wife or anybody is presenting false evidence against you in the court of law or police station, you can file a case alleging that the evidence which are being used to prosecute you are false, which consequently make the whole charges false.
  5. Section 197 Indian Penal Code, 1860 – Issuing or signing a false certificate – Perjury is a crime, one can’t sign a false certificate and allege it to be true. Hence, if someone suffers because of the wrong certificate, he can prove himself innocent after showing sufficient evidence.
  6. Section 471 in The Indian Penal Code – Using as genuine a forged [document or electronic record]. –Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
  7. Section 497 in The Indian Penal Code – Adultery – Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.
  8. Section 500 Indian Penal Code, 1860 – defamation – Reputation is man’s biggest asset. So if someone tries to defame you by any means, you can drag them to court for the harm suffered by you because of their conduct. They will be entitled to pay you damages to you in terms of compensation.
  9. Section 504 The Indian Penal Code, 1860 – Intentional insult with intent to provoke breach of the peace – Whoever intentionally insults, and thereby gives provoca­tion to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
  10. Section 506 Indian Penal Code, 1860 – Punishment for Criminal Intimidation – You can file a case of criminal intimidation against your wife alleging that she threatens you to do harm to you or your family or your property. Yet again, evidence is the only thing which can support your case.
  11. Section 227 of The Code of Criminal Procedure, 1973 – If you believe that the complaint registered by your wife is false you can file an application under sec 227 stating that the 498A case filled by your wife is false. If you have enough proofs, or if she does not have enough proof to substantiate the charges, chances are that the judge just dismisses the 498A case as it is a framed one.
  12. Section 9 of Code of Civil Procedure, 1908 – Damage recovery case – If she breaks into your home, creates a scene, and goes to ” protection officer ” and lies that you abused her “physically, emotionally or economically”, file a damage recovery case under Section 9 of CPC against her. Legally, you must issue notice on the same day or next day. The suit will continue for a long time. It has no risk.

IMAGE SOURCE- https://www.kannadigaworld.com/news/india/90128.html

Jurisdiction of Courts with respect to Criminal Cases

Jurisdiction of Courts with respect to Criminal Casess

Introduction

To ensure that justice is served to the one whose right has been infringed, the Constitution of India gave the judiciary system. To ensure that the judiciary is working in an efficient manner, various courts having different powers were established. Code of Criminal Procedure, 1973 (hereinafter referred as CrPC) under Section 6, directs that beside High Courts in every state the following criminal courts will be established:

  1. Courts of Session
  2. Metropolitan Magistrate in any Metropolitan area
  3. Judicial Magistrate of the first class in areas other than Metropolitan area
  4. Executive Magistrate

 

Court of Session

Establishment

As per Section 7 of CrPC, every state will have session division and the number of such division will be decided by State Government after consulting the High Court. Section 9 of CrPC, states that the State Government will have to establish a Court of Session for every session’s division which shall be presided by a Judge and he will be appointed by the High Court. Further, the High Court can also appoint Additional Session Judge and Assistant Session Judge.

 

Triable offence

As per Section 26, a Court of Session can try any offence given under IPC or any other offence which has shown to be triable by the Court of Session in the First Schedule.

 

Subordination

The Assistant or Additional Session Judge appointed by the High Court will be subordinate to their respective Sessions Judge who will distribute the work among them. Session Judge can make rules with respect to the additional and assistant judges but they must be consistent with the Code. [Section 9]

 

Punishment

A Sessions Judge and Additional Sessions Judge can pass any sentence that is authorised by law but, in case of death sentence confirmation of High Court is required. An Assistant Sessions Judge can pass any sentence excluding sentence of death or imprisonment for life or for a term exceeding ten years. [Section 28]

 

Court of Metropolitan Magistrate

Establishment

Areas having population more than one million and notified by the State Government are Metropolitan areas. The area of Mumbai, Kolkata, Chennai and Ahmedabad are the areas that are mentioned in the Code as Metropolitan Areas. [Section 8]

As per Section 16, the State Government after consulting the High Court will establish as many courts of Metropolitan Magistrates as it may deem fit in the Metropolitan Area. The High Court will appoint the presiding officer and the jurisdiction of the officer will extend throughout the metropolitan area.

Under Section 17, High Court will appoint a Metropolitan Magistrate as Chief Metropolitan Magistrate (CMM) for a particular area. High Court can also appoint any Metropolitan Magistrate as Additional Chief Metropolitan Magistrate.

 

Subordination

The CMM and every Additional CMM will be subordinate to the Sessions Judge. Every other Metropolitan Magistrate will be subordinate to CMM and the extent of the subordination will be defined by the High Court. Further, the CMM can make rules consistent with the Code and can also distribute the work among the Metropolitan Magistrate. [Section 19]

 

Triable Cases

As per Section 26, Court of Metropolitan Magistrate can try offence which has shown to be triable by the Court of Metropolitan Magistrate in the First Schedule.

 

Punishment

CMM may pass any sentence authorised by the law except a sentence of death or of imprisonment for life or a term exceeding seven years whereas a Metropolitan Magistrate can pass a sentence for a term not exceeding three years or fine not exceeding five thousand rupees or both. [Section 29]

 

Court of Judicial Magistrate

Establishment

As per Section 7, each division is divided into districts and the State Government in every district after consultation with the High Court will establish as many Courts of Judicial Magistrates of First Class and Second Class as it may deem fit. The presiding officer of such Courts shall be appointed by the High Court. [Section 11]

In every district a Judicial Magistrate of First Class (JMFC) will be appointed as a Chief Judicial Magistrate (CJM) under Section 12 of CrPC. The High Court can also appoint any JMFC to be an Additional CJM.

A CJM, subject to the control of High Court, can define the local limit of the areas within which the Magistrates appointed under Section 11 or Section 13 can exercise their powers. [Section 14]

 

Subordination

As per Section 15, a CJM will be subordinate to the Sessions Judge and the other Judicial Magistrate will be subordinate to CJM, subject to general control of Sessions Judge. Also, the CJM can make rules consistent with this Code and can distribute the work among the Judicial Magistrate subordinate to him.

 

Triable Cases

As per Section 26, Court of Judicial Magistrate can try offence which has shown to be triable by the Court of Judicial Magistrate in the First Schedule.

 

Punishment
CJM may pass any sentence authorised by law except a sentence of death or of imprisonment for life or a term exceeding seven years whereas a JMFC can pass a sentence for a term not exceeding three years or fine not exceeding five thousand rupees or both. Judicial Magistrate of Second Class can pass a sentence of imprisonment wherein the term will not be exceeding one year and in terms of fine, the amount will not exceed one thousand rupees, or of both. [Section 29]

 

Court of Executive Magistrate

Establishment

Under Section 20, the State Government in every district and in every metropolitan area will appoint as many Executive Magistrates as it thinks fit and shall appoint one of them as District Magistrate (DM). The State Government can also appoint any Executive Magistrate as an Additional District Magistrate (ADM) who will have same power as that of a DM.

The DM subject to the control of State Government will define the local limits in which the Executive Magistrate can exercise their power.

 

Subordination

Every Executive Magistrate other than ADM will be subordinate to the DM and every Executive Magistrate exercising power in a Sub-division shall also be subordinate to the Sub-Divisional Magistrate, subject to the general control of DM. [Section 23]

 

Triable Cases

As per Section 3(4)(b), the matters which are administrative or executive in nature will be exercisable by an Executive Magistrate.

 

Order

The order that can be passed by an Executive Magistrate will be either administrative or executive in nature and hence it will depend on the facts and circumstances of the case.

 

Image Credit: http://www.shareyouressays.com/115819/the-extra-territorial-jurisdiction-of-the-indian-criminal-courts

All you need to know about Road Accidents

PART I

There has been a steep escalation of road accidents in the past few years with the expansion of more motor vehicles in India. Road injuries and fatalities have come up as a major public concern as it is one of the leading causes of death and permanent disability in this country. According to a study conducted by National Transportation Planning and Research Center [1], one road accident takes place in every four minutes in India. Almost 97% of the road accidents are caused by rash or negligent driving[2].

When a road accident takes place, it gives rise to both civil and criminal liabilities on the part of the driver depending upon the nature and cause of the accident. Motor Vehicles Act, 1988 majorly deal with issues related to road accidents. Indian Penal Code also covers certain areas when it comes to criminal liability.

Things to do in case of a road accident (Section 132 of Motor Vehicles Act, 1988)

It is the driver’s duty to stop his vehicle and wait for a police officer for some reasonable time[3] when he is involved in a road accident and injures any person, animal or causes damage to any other car or property.

The driver of the vehicle should not panic and he should give his name and address to the person affected by the accident and also ask for the affected person’s details.

Generally people run away from such situations mainly due to fear of public harassment, violence and criminal record. There is a possibility that people may own up to their fault but because of rampant bribery culture they think that it is safer to run away than fact potential harassment and loot by the police.

There have been many accidents in which because of celebrity limelight and monetary stronghold the matter has been suppressed and not faced any serious implications in the eyes of law. The Aaston Martin hit and run case is one of those cases where the eye witness gave the statement that a young man (Mukesh Ambani’s son Akash Ambani) came out of the Aaston Martin Rapid and hopped into security vehicle after hitting a Hundai car and then ramming into an Audi showroom but the next day an old employee of Reliance Industries, Mr. Bansilal Joshi said he was responsible for the accident which occurred during a routine maintenance ride of the said car. He said that he panicked so he ran away. The police recorded his report but did not arrest him as they were not sure about who was the actual culprit.[4]

The recent Hema Malini car accident also is one of the incidents where priority of fetching first aid was given to the celebrity and member of parliament over the common Indian family. All of the family members had suffered graver injuries than what Hema Malini did; and in addition to that, they lost their 2 year old daughter too. But medical help reached them long after Hema Malini was driven off around 60 km away by a Samaritan passer-by in his car.[5]

 Things to do in case of injury to a person in a road accident (Section 134 of Motor Vehicles Act, 1988)

It is the duty of the driver or the person in charge of the vehicle to take the injured person to the nearest hospital unless he is unable to do so due to circumstances out of his control. Such a driver should provide any kind of information to the police as and when demanded.

In case there was no police near the area of accident, such incident should be reported to the nearest police station within 24 hours of the said accident.

Information about the accident should be given to the insurer of the policy holder (driver or owner). Policy holder is the person who holds the Certificate of Insurance issued by the insurer. Information such as date, time and place of the accident, details of the person dead or injured, details of the driver of the car are important in such cases.

Things to do after a road accident

An application for compensation should be filed under the Claims Tribunal[6] when death, injury or damage has been caused by a motor vehicle.

Such application can be filed by[7]:-

the person who has sustained such injury;

the person whose property is damaged;

legal representatives of the person deceased or;

an agent duty authorized by the injured person or the legal representatives.

There are three modes by which aggrieved can ask for compensation:-

Principle of no fault liability (Section 140),

Structured formula basis (Section 163A),

Compensation in hit and run cases (Section161)

In the case of no fault liability principle, the claimant does not need to prove any fault or neglect on the part of the driver for receiving compensation. There is a fixed amount of compensation payable to the victim which is 50,000/- in case of death and 25,000/- in case of permanent disablement.

In case of compensation by structured formula basis, the owner of the vehicle or the authorized insurer shall be liable to pay as per the Second Schedule of the said Act to the victim or his legal representatives when such vehicle is involved in causing death or permanent disablement to any person.

The above two modes of compensation can be availed only if the identity of the car is known. Also, a claimant cannot use both methods of compensation together.

The third mode of compensation is in Hit and Run cases. Hit and run can be explained as the liability of a driver of any vehicle who is involved in a collision which damages vehicle or property of any other person or injures any other person(s) or both and who runs away without giving his name and license number as prescribed by statute to the injured party, witness or any law enforcement officer. It is a situation where the identity of the vehicle responsible for the accident is not traceable. As the identity of the driver or the owner is not traceable, a fixed amount of compensation is given to the victim or the legal representatives of the victim from funds created by the government. The claimant receives 25,000/- and 12,500/- in situation of death and grievous injury respectively.

So evidently, the compensation amount reduces by half if the driver or the car cannot be located. Therefore it is imperative to attempt to locate the wrong doer.

No time limit has been prescribed for filing claim application. Initially when the law came into force application had be filed within 6 months from the date of accident which was later increased to one year but for the welfare of the people such limitation has been deleted from the legislation[8].

Any person who feels aggrieved by the decision of the Claims tribunal can appeal in the High Court. There are exceptions to such appeal. Firstly, no appeal by the person who is supposed to pay any amount in terms of award given by the Claims Tribunal shall be entertained by the High Court, unless he has deposited with it rupees 25,000/- or 50% of the amount so awarded, whichever is less in the manner directed by the High Court. Secondly, no appeal shall lie against any award if the amount in the dispute is less than rupees 10,000/-[9].

Motor Vehicles Act, 1988 also covers the offences like over speeding, dangerous driving and drunk driving. A person should have had 30mg of alcohol per 100ml of blood in his/her body to be called drunk under the Act. A first time offender in the case of drunk driving could be sentenced up to 6 months imprisonment or fined up to two thousand rupees or both. A second time offender within the time gap of 3 years could be sentenced up to 2 years of imprisonment or fined up to three thousand rupees or both[10].

What gives rise to criminal liability in a road accident?

Accidents which are caused by the rashness or negligence of the driver give rise to criminal liability. Section 304A of the IPC covers such liability which is punishable for 2 years or fine or both. It is absolutely necessary that death or injury should be a direct result of the negligent act of the accused. If there is a third party intervention then the prosecution case would weaken. Remote or indirect connection will not give rise to any criminal liability. For example, if a driver while talking on the cell phone hits a pedestrian, he is directly responsible for such an accident. On the other hand, when a driver collides with a building and the window sill falls on a pedestrian walking by, then such driver will not be liable under this section.

A person who is driving or riding holds the ultimate duty to control his vehicle. Such a person is prima facie guilty of negligence if his vehicle dashes into something or someone unless he has reason to explain that he did everything in his power to keep the vehicle under control but the accident was inevitable. This principle was established in the landmark case of Ratlam v.s Emperor[11]. In the case of K. Perumal v.s State[12] it was held that the driver was liable to be punished under section 304A of the IPC as he ran over his vehicle on the victim, without attempting to save him even though there was sufficient space on the other side.

Carelessness does not give rise to criminal liability (but it does result in civil liability under the Motor Vehicles Act as previously explained). Recklessness of the accused should reflect disregard for other person’s life and property which means there has to be intention or what we call in law Mens Rea. In the case of Chintaram v.s State of Madhya Pradesh[13] , the deceased was walking on the middle of the road so the accused was driving by the left of the road trying to keep a distance from her. When the accused reached close to the deceased she abruptly took a left turn and got struck by the motorcycle. In this case, the accused was not negligent. The erratic decision of the victim did not give any reasonable time to the motorcyclist to avoid her so he was acquitted.

There are various other offences involving motor vehicle accidents which are punishable under the Indian Penal Code.

Section 279 covers rash driving or riding on public way which is punishable by the way of imprisonment up to 6 months or fine of one thousand rupees or both. Rash driving is independent of other offences irrespective of its consequences, which means if the consequence of such rash driving is death or injury then the accused will be tried for those offences in addition to the charge under this section.

Section 336 provides that anyone who acts rashly or negligently which endangers human life or safety can be punished with imprisonment for a term up to three months or a fine of rupees 250/- or both.

Section 337 and section 338 cover causing hurt and causing grievous hurt which threatens life and safety of people. A person is liable to pay up to rupees 500/- as fine and can be sentenced imprisonment for a term of six months or both in case of causing hurt under section 337. In case of grievous hurt, the driver can be punished with imprisonment extending up to two years or fine of rupees 1000/- or both.

All seven charges were proved in the Sessions Court against the accused in the Salman Khan’s 2002 hit and run case which were covered sections 279, 304(iii), 336,337,338,427 of the IPC and sections 181 and 183 of the Motor Vehicles Act.

 Recently, Vice President (Legal) of Reliance Industries, Jahnvi Gadkar has been charged with culpable homicide not amounting to murder along with provisions of drunk driving from the Motor Vehicles Act because Gadkar had in an inebriated state rammed her car (Audi) – into a taxi and killed two persons.

PART-II

Position of road accident legislations in UK and USA

India and UK have very similar legal position with regard to road accidents. Road Traffic Act, 1988 is the main legislation which covers issues related to road safety and accidents. Provisions of Motor Vehicles Act 1988 (India) and Road Traffic Act, 1988 (UK) are quite identical. UK Highway Code Penalty Table[14]  gives a complete list of offences and their corresponding punishments.

There is a Drink Drive Rehabilitation Scheme in UK which has been active since January 2000. This is generally offered at the discretion of Court to the offender and under this scheme, any offender can reduce his ban on driving which should be more than 12 months. There is also provision of community service for repeated offenders.

In USA, car accident issues are entirely covered under respective state legislations but all the states have three basic elements which need to be proved satisfactorily by the victim to claim compensation. Firstly, plaintiff should prove that there had been a breach of duty from the part of the defendant. A mere utterance of sorry at the time of the accident by the defendant can be used as evidence against him. Secondly, the victim must prove harm is caused to him. Damage to vehicle and injury to the victim must be proved to the court so that the victim can rightfully claim compensation, medical expenses, loss of wages etc. Finally, the plaintiff must prove element of causation. Causation means consistency of medical testimony of the victim with the nature of the collision. It is possible that certain injuries of the victim occurred before the accident so injuries of the victim should be compared with a proper evaluation of the crash scene which is generally captured in pictures and CCTV footage at the traffic poles.

Conclusion

The Motor Vehicles Act had been recently amended in March 2015 and a new Motor vehicle Bill is set to be introduced in the monsoon session of the Parliament this year. The bill is going to introduce strict measures against traffic offenders. It suggests heavy fines up to 3 lakh rupees and imprisonment up to 7 years for death of a child.[15] The increase in both pecuniary and imprisonment penalty may create a deterrent effect in the minds of general public as well as regular offenders. There are CCTV cameras at the traffic signals and the highway speed check posts but most of them are non functional. This loose functioning of the traffic authorities also needs to change. India may have an ideal legislation for dealing with traffic regulations and accidents but in the end it is the duty of the citizens and traffic authority to keep the roads & highways a safe place.

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

[1] http://www.helplinelaw.com/govt-agencies-and-taxation/ACMV/accidents-claims-under-the-motor-vehcles-act-1939.html

http://sites.ndtv.com/roadsafety/important-feature-to-you-in-your-car/

[2] http://www.newindianexpress.com/states/kerala/97-Percent-of-Accidents-in-2013-Due-to-Rash-Driving/2014/02/24/article2074546.ece

[3] Reasonable time has not been defined under the Act. It varies from case to case and also depends to some extent on the judges who comprise the bench.

[4] http://www.forbes.com/sites/naazneenkarmali/2014/01/02/the-curious-incident-of-mukesh-ambanis-aston-martin-in-the-night-time/

[5] http://www.ndtv.com/india-news/brutal-error-by-hema-malini-says-union-minister-babul-supriyo-779629

[6] Section 166 of The Motor Vehicles Act, 1988

[7] Section 166 of The Motor Vehicles Act, 1988

[8] 1994 Amendment of the Motor Vehicles Act, 1988

[9] Section 173 of the Motor Vehicles Act, 1988

[10] Section 185 of the Motor Vehicles Act, 1988

[11] AIR 1935 Mad 209

[12] 1998 4 Crimes 382

[13] 1986, ACJ 1043 MP

[14] https://www.gov.uk/highway-code-penalties/penalty-table

[15] http://auto.ndtv.com/news/new-motor-vehicles-bill-to-be-introduced-in-monsoon-session-of-parliament-778968

 

Picture Credits:

  1. http://youfacebookclip.com/search.php?q=car+wrecks
  2. https://www.educaloi.qc.ca/en/capsules/car-accidents-what-do
  3. https://flvtop.com/search.php?q=road+car+accidents

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.

Tackling Police Oppression: Refusal and Recourse

Power tends to corrupt, and absolute power corrupts absolutely
-By: John Emerich Edward Dalberg-Acton
PART-I

What is the Difference between General Diary and First Information Report?

General diaries (GD) are records which maintain information about all the cases that are brought to the police station. Every working of the police with reference to a reported crime is recorded in the general diary. The Hindi word for general diary is “Roznamcha”. This diary has a wide ambit. It contains a record of all the events taking place within the jurisdiction of the police station. It is important from the perspective of internal reporting. The substance of the FIR viz., the informant, the names of the accused and the eye witness are to be entered into the general diary.[1] However mere non recording of substance of FIR in general diary is not fatal.[2]

General diary has several names. It is often called “Station Diary” or “Daily Diary” in some States. Unlike other records, G.D. does not find place in Code of Criminal Procedure, 1973. However it does find a place under the state Acts. The general diary in respect of information for offences of non-cognizable nature under the provision of Section 155 of the Code of Criminal Procedure is one of the important indices of police performance at Thana/Outpost level.

The Police Act, 1861 obligates police officials to maintain a G.D.[3] Police Manuals are other sources which points towards maintenance of diaries.  Section 44 of the Police Act states that the police stations are obligated to record information regarding all the complaints, charges preferred, names of arrested persons, name of complainants, weapons or property recovered among other things.

FIRs are recorded in a separate book/register. It is only the substance (more like summary) that makes it to the general diary. In other words, the two can coexist. Moreover, unlike FIR, general diary does not require signature of the complainant.

One of the most differentiating features of an FIR and general diary is of unique annual number. Since FIR book is allotted a unique annual number, it becomes easy to keep a strict control and track over it.  Track of FIRs being filed everyday can be kept easily by simple supervision. Apart from this, FIR has an element of accountability attached to it. The police officers are obligated to send the copy of FIR to the concerned Judicial Magistrate.

 Scope of accountability in general diary is however less as it contains a multitude of other details. A copy of the general diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a superior police officer. Therefore keeping strict supervision and control over it is not possible. Each and every FIR recorded in the general diary by the police officers might not be looked into by the Magistrate. Keeping a constant vigil on general diary in the police station is not possible owing to enormous amount of other details mentioned therein.

 Further, it would not be correct to assert that the general diary necessarily contains information as to offences or accidents. If the State Act or the Manual mandates, it could contain several other transactions also.

 For example the general diary may contain-

  1. Details of the arrested persons
  2. Information of accused sent to the Magistrate
  3. Visit of Senior officers
  4. Details of officials sent to maintain peace and tranquility
  5. Departure and arrival of Police staff
  6. Handing over or taking over of charge
  7. Details of law & order duties
  8. Gist of FIR’s filed during the day

 Data maintained in the general diary is in chronological order. Both FIR and general diary are filled up simultaneously and it is quite apparent that both of them have each other’s reference number. But the usual practice is to record the complete complaint in the FIR book first and then copy the gist of important points in to the general diary.

 However in the absence of FIR, the general diary can play a significant role. Where an entry in the general diary discloses the commission of a cognizable offense, it can be treated as FIR in appropriate cases. [4] The contents of the FIR can only be used to discredit the informant and not to discredit the eye witness on the basis of omissions in G.D entry. In other words, both can be brought before the court as evidence. But both have their limitations.

How is an FIR different from a G.D.?

FIR is the first information report filed with the police regarding commission of an offense. Unlike general diary, it does not disclose the gist of the matter, but the whole incident. It is in the witness dictated format. It will include everything the witness knows about the incident and the connecting circumstances. But mere information received through a phone call by a police officer without any details of the accused or nature of injuries caused to the victim cannot be treated as FIR.[5]

How does a person know whether he has to file a G.D. or an FIR?

It is a very common misconception that the G.D. is maintained with respect to a particular class of offences. However this is not the case. In fact it is advisable for the victim/informant not to get anything entered in the General Diary on his own. Individuals should rather persuade the police officers to lodge a FIR if they have a reason to believe that the case is cognizable. Cognizable offences are those offences where the police official is empowered to arrest without a warrant.[6] Where there is a doubt as to the applicability of the provisions of Section 154 of Cr.P.C. and Section 44 of the Police Act, 1861 it can be safely asserted that Section154 will prevail. In other words where the offense is being capable of being entered both into G.D. and FIR book, the FIR book should be given priority. This reasoning is derived from the “Doctrine of Repugnancy”.[7] Cr.P.C was enacted under Entry 2 of the Concurrent List of the Seventh Schedule and the Police Act, 1861 was enacted under Entry 2 of the State List of the Seventh Schedule to the Constitution. In case of conflict, the subject in the Concurrent List will prevail.

But at the same time it must not be forgotten that the general diary can be used by the police to make entry of non-cognizable offences. Non-cognizable offences are those in which the police officials are obligated to obtain a warrant from the appropriate Magistrate. In the absence of separate diary dealing with registry of cases under Section 155 of the Cr.P.C, it is the only option for the police.

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

PART-II

The law on GD and FIR as it exists on paper is what is discussed in Part-I. Let’s move into the next aspect of law; i.e. how it plays out in our practical lives.

What should a person do in case of refusal by police to lodge an FIR?

Police atrocities are a common phenomenon in India. This outrageous practice has ravaged criminal justice system not only in small towns but also in metropolitan cities. One of the most common forms of this atrocity is refusal to lodge a FIR on the request of victim/person concerned. The worst form of injustice a victim can face is the refusal to lodge a FIR.

It is an understood fact that the non-immediate registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon as soon as the allegations are made known to the police. Further, delay in lodging FIR can also be utilized by the defendant as a ground for countering prosecution.

The FIR is an important formality as it is the threshold where the victim/complainant initiates criminal action against the accused. In other words it sets the process of criminal justice in motion.[8] It is not in the hands of the police to lay down the law. FIR is a public document and even an accused is entitled to a certified copy.[9]

Indian laws provide adequate safeguards against refusal of lodging FIR. It is worth mentioning that the police officials are duty-bound to register FIR in cognizable offences.[10] Whether the information provided falls under Section 154 or not is a question of law and a police officer cannot use his discretion in this matter.[11] Even lack of territorial jurisdiction cannot be taken as a ground to refuse registration of FIR.[12]  Where the police is reluctant to lodge a FIR the victim can resort to sending the information to the Superintendent of Police.[13] This information can be communicated by a letter.[14] The Superintendent thereby can cause investigation himself or direct the police officials subordinate to him to investigate the matter.[15] Complainant can also approach the Magistrate to order the police to conduct an investigation into the matter. In fact where the Superintendent of Police fails to take adequate action, concerned person should approach the Magistrate.

If the police show a passive attitude towards the directions of the Magistrate secured by the complainant, then the complainant should act vigilantly. The standard protocol should be to look for other alternatives without wasting time. If the police officer has refused to register a FIR in spite of order of the Magistrate, the complainant should approach the Magistrate with appropriate application. If the investigating officer is not making the investigation, then also the aggrieved person is free to approach the Magistrate seeking necessary direction.[16]

Provisions stipulated under Section 154 are mandatory in nature and the concerned police officer is duty-bound to register the case on the basis of information disclosing cognizable offence.[17] The relevant section obligates the police officer to reduce the information provided by the complainant orally. Further, he is also obligated to read over such information so recorded to the complainant.

 Fighting the hard fight

Over time it has been seen that even the chair exercising superiority over the police has fallen into corrupt hands. Influential persons subjugate the law either by bribing or by abusing the powers entrusted on them by virtue of their position.  Reluctance of these authorities to hear the plight of the victim/informant is a bolt from the blue. But it is an undeniable fact that even higher authorities can abuse their position. It can easily thrust individuals into a bureaucratic nightmare. But it is advisable to fight tooth and nail against these authorities. Badgering superior authorities is a worthwhile effort as this is one’s best bet for securing justice and burying the head in the sand acts as a provocateur to such authorities. Abuse of power has often been observed even amongst judicial authorities (Magistrates). Classic example could be that of Ravneet Garg’s case where the Chief Judicial Magistrate, (Gurgaon) had been accused of murdering his wife.[18] It has been alleged that the police has shown a non-cooperative attitude in this case.  The complainant has gone to the extent of asserting that the police officials were actively involved in this case.

Though it would be prejudicial to comment anything on the abovementioned case at this stage, yet this could be used as a good example where the victim/family members might fail to make use of the three recourses available. That is to say, police being subordinate to Superintendent of Police will not take any action without his assent as it is a critical case. And Superintendent of police being a person acting in close quarters with judicial persons would be reluctant to go against them and thereby abide by their orders. Needless to mention that filing a complaint to the magistrate is out of the question.  Situations where the accused involved are ruling the roost are indeed tough nuts to crack.

These are the typical cases where the High Courts and the Supreme Court act as the last resort. These infallible and incorruptible sentinels can render proper help and compel the investigative and subordinate judicial authorities to perform their obligations by issuing the writ of mandamus[19]. Indian Constitution provides necessary safeguards for such situations.[20] Higher judicial authorities holding the reins can successfully crack the whip and knock sense into authorities unwilling to perform their function.

[1] Rakesh Kumar v State 1996 CriLJ 607 (DB) (Del)

[2] Amar Singh v State 1996 CriLJ 3848 (DB) (Del)

[3] See Section 44 of the Police Act, 1861

[4] Superintendent of Police, CBI v Tapan Kr. Singh AIR 2003 SC 4140

[5] Ravishwar Manjhi v State of Jharkhand AIR 2009 SC 1262

[6] See Section 2(c) of Code of Criminal Procedure, 1973

[7] See Article 254 of the Indian Constitution, 1950

[8] Hasib v State of Bihar AIR 1972 SC 283

[9] Shyam Lal v State of U.P. 1998 Cri LJ 2879 (DB) (All)

[10] See Section 154 (1) of Code of Criminal Procedure,  1973

[11] Hem Raj v State of Punjab AIR 2003 SC 4259

[12] Satvinder Kaur v State AIR 1999 SC 396

[13] See Section 154(3) of Code of Criminal Procedure, 1973

[14] Ibid

[15] Supra, Refer note 5

[16] Smt. Reba Dey vs The State Of West Bengal & Ors W.P. No. 1717 (W) of 2011

[17] Ramesh Kumari v State of NCT AIR 2006 SC 1322

[18] See http://www.ndtv.com/gurgaon-news/gurgaons-chief-judicial-magistrate-a-suspect-in-wifes-murder-528944 as visited on 29 January 2015.

[19] Writ of mandamus obligates state organs to do or not to do something. Nonperformance of functions or omissions while obeying to such writ constitutes contempt of court.

[20] See Article 32 and 226 of the Indian Constitution, 1950

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

Law of Evidence in India

Evidence is the material on the basis of which the Court can decide the case. Such evidence must be produced before the Court so that it can establish or disprove the point of contention between the parties. The Law of evidence is a very crucial piece of legislation which helps and guides the court in arriving at a conclusion with regard to the existence or non-existence of facts. The rules of evidence are necessary to bring out the truth in every case and the Court should stick to such rules. Basically, the rules of evidence are required to draw a line between relevant and irrelevant facts. There will be great uncertainty with regard to relevant matters, if the court started depending upon the discretion of the Judge in such matters in every case.

In contrast to the substantive laws, which deal with rights and liabilities, law of evidence is a procedural law which provides rules with regard to introduction of evidence to support the case and covers the fundamental principles of proof of facts, its type, quality and quantum etc in a legal proceeding. The Law of evidence is said to be the law of the forum or the lex fori.

The concept of burden of proof is also essential in the law of evidence. The concept is differently applied in civil and criminal cases. Burden of proof broadly means that whoever wants the Court to give a judgement as to any right or liability which is dependent on certain facts must prove existence of such facts. When a person is bound to prove certain existence of facts, it is said that “the burden of proof lies on that person”.

For deciding a civil case, preponderance of probability is sufficient. Preponderance of probability means existence of a greater weight of evidence which is valuable to determine the offence and sufficient enough to incline a fair and impartial mind to one side of the issue. The Judge generally takes into consideration that evidence which is persuasive and outweighs the other side. On the other hand in a criminal case, the burden of proof is on the prosecution which should be proven beyond reasonable doubt. The highest standard of proof which must be met in a trial court is that of beyond reasonable doubt. This means that the judge has no doubt of the defendant’s guilt.

Section 3 of The Indian Evidence Act, 1872 defines oral evidence and documentary evidence. The Act says that all those documents which are presented in the court for inspection are documentary evidence.

 Section 60 of the Act provides for the recording of oral evidence. The most fundamental principle of oral evidence is that it must be direct. All facts except the contents of documents or electronic records may be proved by oral evidence.

Evidence can also be classified into primary and secondary evidence. Primary evidence means that the document itself is produced for inspection. It is the best form of evidence. The evidence which is produced in the absence of primary evidence is known as secondary evidence. Secondary evidence is not admissible unless the primary evidence is proved to be lost or destroyed. Existence of facts needs to be proved by primary or secondary evidence, if there is no such evidence then the document cannot be said to be proved.

Primary evidence speaks for itself and it does not need corroboration. In case of secondary evidence, supplementary evidence needs to be provided so as to strengthen and confirm existence of facts. The Supreme Court has given a vivid description of corroborative evidence in the case of Rameshwar v/s State of Rajasthan (AIR 1952 SC 54). Corroborative evidence refers to an additional evidence from an independent source  which connects the accused with the crime and confirms/substantiates the complainant’s testimony. The corroboration need not be direct evidence.

Direct evidence of a fact means which can be perceived by the senses and it is always primary in nature. It is the strongest form of evidence. On the other hand, hearsay evidence is no evidence.

Hearsay evidence is that evidence which is based on information given by a third person. Hearsay evidence is inadmissible in Court because information given by a third person cannot be trusted upon. In the case of Saktar Singh v/s State of Haryana (AIR 2004 SC 2570), The Supreme Court held that hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others and such evidence is not admissible.

However, there are few exceptionional circumstances under which hearsay evidence is admissible. Statement of a person may be proved by a witness if the fact stated by such person surrounds the relevant facts. This is called doctrine of res-gestae (section 6). An admission of liability or a confession of guilt which is outside the Court can be proved by the testimony of the person to whom such confession was made. Statement in public documents, such as official books and registers, Acts of Parliament are not needed to be proved by the draftsman of such document. Evidence given by a witness in proceeding can be used in a subsequent proceeding between the same parties, provided that, the witness has died or is unavailable for some other reason. Hearsay evidence is also admissible in case of dying declaration. Statement of a dead person becomes relevant when it relates to his cause of death. Expert evidence of a third person is required when the Court has to form an opinion about some foreign law, science, art, and identification of handwriting or hand impression. An expert must have special training and experience on the subject matter upon which his opinion is asked for.

Evidence needs to be proved before the court admits such documents. Once the evidence is admitted, it cannot be further challenged. The general notion is that, any dispute regarding the admissibility of any document should be made by the opposite party at the trial level only. In contrast, there are various landmark judgments where admissibility of evidence has been challenged at an appellate level. In the case of R.V.E Venkatachala Gounder v/s Arulmigu Viswesaraswami and V.P. Temple and Anr(2003 8 SCC 752), the admissibility of document was challenged at the appellate level. As per the case, the objection as to admissibility of evidence can be classified in two ways – (i) an objection that, the document which is to be proved was inadmissible; and (ii) an objection to the insufficient mode of proof of that document. In the first case, even if a document has been marked as 'an exhibit', an objection as to its admissibility can be raised even at a later stage or even in appeal or revision. In the second case, when the objection is regarding mode of proof of the document, it should be raised before the evidence is admitted. Once a document is admitted, objection to its mode of proof can’t be raised at a subsequent stage. It is fair play rule.

The Indian evidence Act, 1872 is dynamic in nature and has evolved with time.  Two of the recent developments in the Act came with the Information Technology Act, 2000 and Criminal Law (Amendment) Act, 2013.

 The Information Technology Act, 2000 broadened the definition of “evidence” by substituting the words "all documents produced for the inspection of the Court", with “all document including electronic records produced for the inspection of the Court". After section 65, sections 65A & 65B were inserted. Section 65A has special provisions as to evidence relating to electronic records such as telephone conversation, CCTV footage, computer output etc. and section 65B deals with the admissibility of such electronic records. The Information Technology Act basically enhanced the Evidence Act by elaborating the scope of evidence (electronic records, digital signature etc.)

The most recent development in Evidence Act was in 2013 after the infamous Delhi rape case. Section 53A was inserted which says that evidence of character of the victim or any person with prior sexual experience is not relevant on the issue of consent or the quality of consent . Quality of consent means likelihood or probability of the victim to give consent. It is a scale of character where a woman is judged based on her sexual experience. If the woman is a virgin then it is very unlikely of her to give consent and as it is often generalized, women with prior sexual experience with different partners are more likely to give consent to any subsequent sexual act. Section 114A when the sexual intercourse of the victim is proved and the question is whether the victim consented or not, if she states in her statement that she did not consent, the court shall presume that she did not consent.  The Amendment to section 146 made it clear that it is not permissible to introduce evidence or put questions in the cross examination of the victim as to her immoral character or her prior sexual experience for proving consent or quality of consent.

The procedural laws are as important as the substantive laws. Sometimes simple procedures are neglected which cause problem in the later stages of the trial or also in the appellate stage. Small loopholes can change the entire scenario of the case. In conclusion, procedural law is required for carving the path for proper functioning of the substantive laws. The law of evidence establishes a working structure for the courts from the grass root level.  In some cases it is just a set of technical hurdles to buy time for the parties and delay justice but these laws are framed for the sole purpose of filtering out the truth and serving justice to the people of the country.

 

Law on Sex Determination: consequences of skewed sex ratio

A few days ago I had the opportunity to attend a discussion on the skewed sex ratio and the laws related to abortion in our country, as an intern in the People’s Union of Civil Liberties. The discussion was conducted by Dr. Meeta Singh, who is the Chairperson of the Dignity of Girl Child Foundation which works for the prevention of gender bias in our society, both intellectually and demographically. I am presenting the compiled discussion, which was  based on the gender bias in our country, its consequences and the difficulties she had to face while implementing the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 2003 (PCPNDT Act) (Earlier, Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994).

This blog reflects the situations prevalent in Rajasthan, however the same scenario with modifications is prevalent all over India. The present adult sex ratio of India is 940 and the infant sex ratio is 914 girls  per 1000 boys. Even though naturally, more boys are born than girls (the normal infant sex ratio ranges between 105 boys for every 100 girls), the ratio in India has fallen far below this average. This has created a vicious circle resulting in the further fall in the adult sex ratio which can have catastrophic effects on the overall population, as will be evident later. It seems that the Vietnamese proverb “One son is children, two daughters are none” has been verbatim followed in our country too, to the extent that the two daughters have become “none” not figuratively, but literally. Several reasons have been indentified for the same.

A woman has been considered as a liability since ages in the Indian society. It is so not only because she has to be sent to her in-laws along with a lot of dowry, but also because she will have to be brought up till she gets married by spending a lot of money. Moreover the perception that  men are the bread earners and add value to the family while women as home makers do not add any economic value augment the reasons behind their ill-treatment. The religious sanctity associated with the supremacy of men and the patriarchal society that we live in, can be cited as other explanations for giving preference to the son.

There can be numerous sub reasons. Another reason, which has been seen in recent times, is the fear in the minds of parents that the girl who will be born, might suffer from sexual abuse. This has been more so in case of people who lack means to tackle such horrendous ordeals suffered by their daughters  as and when they arise. It becomes scarier for women who have suffered violence and do not want the same to happen to any of their close ones. Although, logically the solution so thought, doesn’t solve the problem. It was discovered that although these traditions had been going on since ages, the number of females dropped sharply after 1991 particularly. Earlier, people kept procreating until a  male child was born. However with the introduction of ultrasound technology in 1990’s, there remained no need to do the same, since the sex of the foetus could be determined before it was born. Since there was no law restricting the same, doctors were freely advertising services of sex selective abortion. The advertisements were a testimony of the fact that  education then had little role to play in spreading awareness about the harms of the disparity in the sex ratio.

They read, “Aaj 500 rupay kharch kare aur kal 5 lakh bachayein” (spend Rs. 500 today to save 5 lakhs tomorrow). This meant that a girl child was a liability in the eyes of even the most educated population of India. Before we continue the story further (which will but be in the sequel to this article), let me acquaint you with the Medical Termination of Pregnancy Act, 1971 (“MTPA”). It was introduced to combat the great number of deaths of the expecting mothers caused due to unsafe abortions. Population explosion was another reason for bringing in the Act. However, like every other law in India, there were loopholes in this law, which were used to misuse this social legislation. It needs to be noticed that ultra-sonography to detect the gender of a baby can be done only after a certain period of conceiving the baby, which is generally 12 weeks, since the baby does not develop fully till that time for the purposes of sex determination.

One of the conditions under which the MTPA allowed for the termination of pregnancy even after this time period (but before 20 weeks) was the failure of contraceptives resulting in mental anguish to the woman.  It is surprising to note the manner in which this provision was misused. Woman used to go for sex detection after 12 weeks and in case she bore a female child, she used to approach the doctor asking for abortion claiming that the contraceptives failed and was causing her mental anguish. The doctor used to abort the baby after the formalities. It is difficult to believe that most of the times it was only after twelve weeks that the woman realized that there had been a failure of contraceptives! Thereafter was devised the PNDT Act, 1994 (amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act). It forbade the pre-natal determination of sex of the foetus. It had many clauses which were helpful in delineating the motive of the Act.

The Act made a 4 level monitoring along with the registration of the clinics which carried on the process of ultra-sonography obligatory, even when it was for purposes other than sex determination. Even when these clinics planned to sell these machines, they needed to make sure that the buyer had applied for registration or was already registered. The records of the machine had to be maintained for a period of 2 years. The doctor if found guilty, was restricted from practicing for a particular period of time and if found for a second time, his/her name was struck from the register of the Medical Council of India. The inspectors, who were put in charge of preventing the misuse of these machines, were given the power of secret inspections. These inspectors used to inform the clinics being visited before the so called surprise visits, frustrating the aim of the Act and the visit. To decrease the impact of the worsening situation, E-cells were made in all the districts in Rajasthan. However the population and the number of clinics under the ambit of each E-Cell were huge to be managed efficiently by one. Many NGOs joined the effort of the government to make the Act a success and organized sting operations in collaboration with the police to hatch these rackets. The sequel to this article will depict these operations and continue the story further. ————————————————————-

 

PART-II

The implementation of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (“PNDT Act”) (amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act) was a tough knot to untie as was discussed in Part I of this article. This article continues the story left unfinished in the earlier Part. It enumerates the steps taken by the government and various NGOs to achieve the objectives of the PNDT Act. A prize of rupees 1 lakh was instituted for the people who could report about doctors carrying on gross crime of sex-selective abortion. Yet the crime continued unabated and every other day doctors were devising new ways to carry on this practice under the veil. To go undetected, the doctors had employed brokers who used to bring clients to them.

The doctors had no direct exchanges with the patient and even the results of the tests were communicated to these brokers only. Complex rackets were devised which were tough to break. Most of these doctors were influential and had connections with men in power. It was difficult to catch them since they maintained fool-proof official papers regarding the machines they used. Bogey (fake) clients were often used to catch them. The clients were given currency notes (a photocopy of which was kept as a proof with the organization trying to catch them), which they were asked to present to the doctor, while asking for abortion. When the notes were later recovered from the doctor, it was a proof of them carrying this evil process. However these decoy operations were not easy to carry out.

State authority’s permission was taken and an affidavit was signed by the patient which read that the patient was not interested in sex selective abortion. The very first stage of finding the decoy clients was the most difficult.  The family members were   not willing to send a pregnant lady for such a sting operation in fear of her losing the baby in case it became a prey to the evil eyes of others (which in Hindi is called nazar lag jana- a common superstitious belief in India.). It was also feared that if an influential doctor was caught red handed, he may send people to threaten the woman to take back her statements. Several initiatives have been taken to alleviate the situation (including the amendment in 2003). However a lot more needs to be done. More particularly, even when foeticides have decreased to a great extent, deaths of the female child are happening in the form of infanticides. Giving incentives to doctors to counsel people against sex selective abortions can be another way to stop the crime. Why do we actually need a balanced sex ratio? The increasing number of crimes against women is partially a result of the skewed sex ratio.

There have been instances of villages witnessing a ‘baaraat’ (the procession which a groom takes to the house of the bride) after more than 100 years. The declining number of girls results in practices like polyandry. There have been cases in Haryana particularly, where one woman was married to four husbands. This lady not only has to fulfill the material needs of food and water and carrying out domestic chores, but also the sexual needs of these four men. This results in adverse impact on the mind and body of the woman and also increases the chances of sexually transmitted diseases. Moreover the age at which girls are married off goes down, which is already low in certain parts of India. This is because, because of a lack of number of girls, the parents of the boys want to marry their child as soon as they can find a girl, thus putting a pressure on the girl’s parents. There is also a rise in the crimes against women since many boys are unable to find mates for themselves. For instance presently, there are 60 men out of every thousand, who are not able to find brides for themselves leading to more and more sexual crimes against woman.

Moreover, single men get attracted to terrorist groups and are an easy recruit, since they have little to lose with no family and children. More about this phenomenon can be read in the book ‘Bare Branches’ by Andrea M. den Boer and Valerie M. Hudson. There is also a conjecture that this would lead to a process of reverse dowry. Buying and selling of brides also takes place. What do you think is a long term solution for this? Educating the girls? No, it has been proven time and again that girls seldom take the decision of abortion (although the MTPA allows for it). In a country like India, where patriarchy is imbued even in laws, imagining a girl aborting a child without the permission of her partner, can be nothing but an imagination!

A way out can definitely be to educate the boys to respect girls so that when they grow older, they do not pressurize the women to do the same thing. A brilliant example of this is a campaign in the villages of Rajasthan by Dr. Singh whereby young boys are made gender sensitive and made aware of the consequences which follow the skewed sex ratio and today the results are amazing. The boys not only ensure that no discriminatory treatment is meted out to their sisters or any other women, but also make sure that they get equal rights.

The same boys who were earlier indifferent to what was happening and enjoyed being served hot food by their sisters are now putting up a brave fight to send them to school. I am just hoping that we do not become akin to China in this regard, where after the single child norm and a similar son preference in the society, the only child which can preferably be born is a son for obvious reasons. The situation is such that because of lack of women in the society, the women are abducted and married off, forcefully. These girls are then made sexual slaves. This is happening with girls who have not even attained puberty, making marriages of a teenager with an octogenarian a common sight. It is high time that we wake up and stand for the cause.