GST for Real Estate in India

GST for Real Estate in India

Akin to the country's first Jawaharlal Nehru who had given the 'Tryst with Destiny' speech at the stroke of midnight on August 15, 1947, the current Narendra Modi government also chose the midnight of June 30 to have a tryst with GST.

Real estate sector being the most pivotal ranks second just behind agriculture.

GST shall bring a lot of transparency in the real estate sector and minimize unscrupulous transactions. 

Now whether this benefit gets passed on to the end-consumer is unsure as pricing of real estate is driven by market forces than on costing principles.

Effective GST rate on under- construction real estate projects will be 12 per cent only.

The government had hiked the GST rate for the construction sector to 18 per cent from 12 per cent but removed land value from computation of tax liability.

According to Finance Minister Arun Jaitley, the products placed under the 28 per cent tax slab would not adversely impact the lower or middle class. 

Cement will be taxed at the rate of 28% under GST. It is higher the current average rate of tax around 23-24% but a lot of additional taxes charged over the average rate would be subsumed under GST.  Iron rods and pillars used in the construction of buildings is charged at the rate of 18% which is similar to the current average rate of 19.5%.
Bricks used in the construction of buildings and houses is taxed under GST at the rate of 28% except for the rate of ceramic building bricks which is kept under 5%. Currently, all bricks except the ceramic bricks are charged an average tax rate of 25-26% inclusive of all state and central level taxes. Logistics cost of transportation of bricks, cement or iron is going to reduce through the subsuming and streamlining of taxes

There is an positive & more sort of initial opening bumper for the reformative Modi Government when the
Stock Exchange Markets Hit Bright Spot.
The Stocks Opened at Above 31,000 on Monday 3rd july due to overall global appreciation of Modi Govt GST by Foreign Finance Index of Asian, US & European Countries claiming that no modern government in the entire World could ever be as bold as ours.

But, the procedures of filing returns in new GST regime are bound to be cumbersome, with businesses expected to file at least 37 returns in a year. This will be multiplied several times depending on the number of states in which one is transacting a business. 
Although this cannot be deemed simple in any sense of the term.
But, its true that,
Developers/Builder's and Contractors would reap the benefit of many taxes which will be subsumed by GST.

Conclusively saying, there is going to be a substantial benefit from GST as it will bring a lot of required transparency and accountability. 

#NarendraModi #GST #BJP #The Realty Paper 

Laws Related to Old Age

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

International Comparison

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

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

Conclusion:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://indiatogether.org/seniors-laws

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

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

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

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

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

 

The law in India

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

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

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

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

 

Applicable legislations abroad

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

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

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

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

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

 

Possibility of a relevant law in India in the future

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

 

Conclusion

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

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

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

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

[3] The complete study can be accessed here:

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

[4] Zoroastrian Cooperative Housing Society v District Registrar

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

[5] Supra, para. 16.

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

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

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

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

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

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

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

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

A Rape Covered Under The Veil Of Marriage

1.  Introduction

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

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

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

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

2.  Indirect laws addressing Marital Rape

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

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

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

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

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

3. Startling Statistics

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

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

International Instruments

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

4. Rethinking of the existing law

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

5. The gray areas

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

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

6. The deep scars left from the crime

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

7. Conclusion

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

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

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

 

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

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

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

[4] Section 375- Definition of Rape

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

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

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

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

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

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

d=586

[11] www.ijmr.net.in

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

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

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

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

Marriage Act, 2006 And Other Allied Laws

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

[17] (1996) 1 SCC 490

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

[19] www.jstor.net

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

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

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.

An Eye for an Eye makes the whole world Blind

Balu Dinesh is a 3rd year student at Kerala Law Academy Law College, Thiruvananthapuram

 

INTRODUCTION

‘Certainty of law is a legal myth.’ – Jerome Frank The imposition of death penalty is an enigma which has kindled several controversies over decades. Debates over death penalty are still in motion, which is reminiscent of the Hegelian dialectics.[1] However in the current scenario much of the arguments in the debates are inclined against the idea of awarding death penalty to the convict. The United Nations Declaration on Human Rights, 1948 is the sine qua non of the modern civilized world and in it is specifically stated that “no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.[2]

As a response to this several resolutions and moratoria were adopted in the international community. Among them some are noteworthy. The United Nations Special Rapporteur[3] or extrajudicial summary on arbitrary executions has emphasized that the abolition of capital punishment is most desirable in order to fully to respect the right to life.[4] In December 2007 and 2008 the United Nations General Assembly adopted resolutions 62/149 and 63/168 calling for a moratorium on the use of death penalty. Similar views against death penalty are adopted by European Court of Human Rights[5] and by the United Nations Human Rights Committee.[6] These international resolutions are nothing but a sign of the inclination of the justice system against the idea of awarding death penalty. It is at this juncture that the arguments rebutting the idea of awarding death penalty are to be introspected.

 

HISTORY

Capital punishment is rather an old idea. The ‘The Code of Hammurabi’, a legal document from ancient Babylonia contained the first known death penalty laws.[7] Under the Code written in the 1700s B.C, 25 crimes were punishable by death.[8] The Hebrew Bible, lays down that an offender should give “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot” and this proposition came to be known as the retributive theory of punishment in modern jurisprudence. Thus the idea of death penalty was based on the popular belief that vengeance emanated from the individual and punishment from God. However, law cannot be static.

We are now living in an era of cultural and technological revolution. Hence the law has to shape itself to adapt to the changing norms of culture in the modern civilized world. Time has come to discard the idea of giving death penalty practiced since the old barbarian era. The fact that 42 countries have abolished death penalty[9] is a testimony to the former statement.

 

ANALYSIS

The common arguments against death penalty can be summarized through a simple illustration. “A kills B. If B is executed, will A come back? Will the relatives of A get back the lost happiness? Will the relatives of B who were not involved in the crime get justice?”  Hence ‘death for death’ is a deadly weapon which cannot give any justice. The idea of allowing B to reform himself and to make him take the responsibility of maintaining those who were supported by A makes more sense.

When there are lots of such alternatives what is the idea behind the imposition of death penalty? Death penalty attains importance due to its stringent nature. Once executed, it can never be rectified. Justice system can never be infallible. It is the finality which makes the justice system infallible and not the infallibility which makes it final. Hence the justice system can also go wrong in several circumstances.

 

ARGUMENTS AGAINST DEATH PENALTY

So if a person is executed wrongly, can the same justice machinery bring back his life? The answer is a definite ‘No’ Hence the confidence and glory of the whole machinery of justice relies upon its tolerance and the abolition of death penalty is the first step towards its realization. Timothy Evans Case[10] and the Campden Wonder[11] in the United Kingdom have left stains in the justice system which tempts everyone to rethink about the idea of death penalty. In the words of Jean Jacques Rousseau, one of the pioneers of French Revolution, “In any case, the frequent punishments are a sign of weakness or slackness in the Government. There is no man so bad that he cannot be made good for something. No man should be put to death, even as an example, if he can be left to live without danger to society.” Hence it is the weakness of our civil society that is revealed through death penalty.

It is the acts of a father that influences his son. Similarly, the act of State can also influence the people. When State imposes death penalty it sends a wrong message of retributive temperament to the society. In contrast if the State abolishes death penalty it sends a message of tolerance and teaches the people about the value of life. As per the oft quoted words, “To err is human but to forgive is divine”, the State through abolition of death penalty can make the people more conscientious. Moreover, a doctrine in criminal jurisprudence states that it is the circumstances that make a man, a criminal. Hence a criminal must be allowed to reform himself. Executing him will increase the hatred of the society towards similarly placed people. Thus two wrongs cannot make a right.

 

CONCLUSION

It is also noteworthy that the latest studies by Amnesty International reveals that the crime rates in those countries where death penalty is still a legal routine are much higher than in those countries which refrain from imposing death penalty.[12] In India also there were several debates regarding the imposition of death penalty. It was the living legend Justice V. R Krishna Iyer who sparked discussions about death penalty in India in the case of Rajendra Prasad v. State of U.P[13]. Following the cases of Bachan Singh v. State of Punjab[14], Machhi Singh and other v. State of Punjab[15] and Dhananjoy Chatterjee v. State of West Bengal[16], the decision “death penalty can be awarded in the rarest of the rare cases and by considering the antecedents, nature and character of the accused” was formulated and is still followed. However, it must be noted that of late, Justice KT Thomas who presided over the bench which awarded death penalty to the accused persons in the Rajiv Gandhi assassination case has said that it was his misfortune to have presided over the bench. Hence a strong wave against the idea of imposing death penalty is blowing from different corners of the world. The law cannot turn a deaf ear to all these reverberations. It is high time that a stable law regarding the imposition of death penalty is framed, as it is said “If we do not maintain justice, justice shall not maintain us”.

 

 


[1] Hegelian dialectics states that it is the continuous clash between two opposing views which lead to the origin of a more mature via media between the two views.

[2] Article 5, Universal Declaration of human Rights, 1948

[3] Special representative of Secretary General to examine, monitor, advise and publicly report on human rights problems

[4] Extrajudicial summary on arbitrary executions: Note by the Secretary General, U N document A/51/457, Oct 1996, Para 145

[5] In Soering case (1/1989/161/217), judgment, Strasbourg, 7th July 1989, Para 104

[6] General Comment on Art 6 of the International Covenant on Civil & Political Rights

[7] JoAnn Bren Guernsey, ‘Death Penalty: Fair Solution or Moral Failure?’, Twenty First Centaury Books, 01-Sept-2009, at P.9

[8] Ibid.

[10] Timothy John Evans (20 November 1924 – 9 March 1950) was a Welshman accused of murdering his wife and infant daughter at their residence at 10 Rillington Place in Notting Hill, London. In January 1950 Evans was tried and convicted of the murder of his daughter, and he was sentenced to death by hanging. During his trial, Evans had accused his downstairs neighbour, John Christie, of committing the murders. Three years after Evans’s execution, Christie was found to be a serial killer who had murdered a number of other women in the same house, including his own wife. Before his own execution, Christie confessed to murdering Mrs. Evans. An official inquiry concluded in 1966 that Christie had also murdered Evans's daughter, and Evans was granted a posthumous pardon .The case generated much controversy and is acknowledged as a major miscarriage of justice.

[11] The Campden Wonder is the name given to events surrounding the return of a man thought murdered from the town of Chipping Campden in the 17th century. A servant, his mother and brother were hanged for killing their master. But following the man’s return, it became clear that no murder ever took place despite testimony attesting to the crime by the accused. The story attracted popular attention in England in the years 1660–1662.

[12] filipspagnoli.wordpress.com/stats-on-human-rights/statistics-on-capitalpunishment

[13] A.I.R 1979 SC 916

[14] 1980 (2) SCC 684

[15] A.I.R 1983 SC 957

[16] 1994 (2) SCC 220