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05 March 2011
News and current affairs

Duress”. Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per mines). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person.Duress would also include“ psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, over bearing and intimidating methods, and the like”. Any mode of pressure, “subtle or crude, mental or physical, direct or indirect, but sufficiently substantial”, applied by the police to obtain information from an accused strongly suggestive of guilt becomes compulsion
The protection under Art 20(3) is available to a person who is compelled to give evidence against himself. There has to be the element of “compulsion” to give evidence on the part of the accused.

Therefore Narco Analysis very well comes under the umbrella of forced or compelled testimony. The consent of the accused is ignored. He is subjected to a dose of Sodium pentothal after which in an unconscious state of mind he answers questions put forth to him.
Narco Analysis Test refers to the practice of administering barbiturates or certain other chemical substances most often sodium pentothal, to lower the subjects inhibitions in the hope that the subject will more freely share the information and feelings. In such sleep-like state, efforts are made to obtain “probative truth” about the crime.
It becomes difficult for the person to lie and his answers would be restricted to facts he is aware of.[3]
Therefore by subjecting a person to Narco analysis is akin to compelling him to be a witness and compelling him to give evidence against himself. The protection against this is guaranteed under Part III of the Constitution.
And hence if such test is conducted against their will, it will be infractuous in evidence even though this test is conducted by an expert.
Further the legal maxim Nemo tenetur seipsum accusares which means “No man is bound to accuse himself”.
The right to remain silent, as it is officially called, is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law. This right is recognized, explicitly or by convention, in many of the world's legal systems.
The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding. This right constitutes only a small part of the defendant's rights as a whole.
The ban on Self Accusation and the Right to Silence, while investigation or trial is underway, goes beyond that case and protects the accused in regard to other offence pending or imminent.
Therefore inadvertently denied of his Right to Silence. He has no other choice but to answer the question in the hypnotic trance. Moreover his right to call a lawyer is also denied to him.
The Supreme Court has ruled that the confession has to be voluntary; a confession made under a threat, inducement or compulsion is inadmissible. Article 20(3) would not apply if confession is made otherwise than under threat, promise or inducement. A retracted confession has little probative value but is not inadmissible under article 20(3).[4]
In the unconscious state of mind reveal statements which might be used against him. The essence that such statement is given voluntarily, does not arise when the petitioner is compelled to go under Narco Analysis Test.
Morover, the Narco analysis Test is widely popular for in lack of conclusiveness and inability to ascertain the truth in the cases. This has been clearly elucidated in the case of State v. Pitts the use of Sodium Amytal in Narco Analysis was prohibited because the results of the interview were not considered scientifically reliable. The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyper amnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. Therefore the test results should not be regarded as conclusive evidence there should be a need of corroborating statements made during Narco Analysis with other evidences that have been procured.
Article 21, which guarantees-
“No person shall be deprived of his life and personal liberty except according to procedure established by law.”
The expression “life” in article 21 has been interpreted by the Supreme Court rather liberally and broadly. Over time, the Court has been giving an expansive interpretation to “life”. The Court has often quoted the following observation of Field, J.:
“By the term Life, as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg.”[5]
Similarly In State of Punjab v. Mahinder Singh Chawla[35] the Apex Court has held that the right to life includes right to health. Subjecting a person to an unsafe scientific test as part of investigation will amount to denial of right to health[6]
Narco analysis is not a safe method of interrogation since the use of such drugs could lead the subject to various health
Bhagwati, J., has observed that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself etc… [7]
The Supreme Court has taken a very positive stand against police atrocities, intimidation, harassment and the use of third degree methods to extort confession. The Court has characterized all this as being against Human Dignity.
Subjecting a person  to Narco Analysis he will be also subject to the embarrassment of being in a sub-conscious state answering questions under the influence of a drowsing barbiturate. Is not this a clear violation of his Right to Live in Human Dignity?
While police is entitled to arrest a criminal and interrogate him during the investigation of an offence, the law does not permit the use of third degree methods or torture of an accused in custody during interrogation and investigation to solve a crime.
The object of Article 21 is to prevent encroachment upon personal liberty by the executive, save in accordance with law.[8]
The right to privacy is not expressly mentioned in the Constitution, but falls within the ambit of the ‘personal liberty’ guaranteed under Article 21 of the Constitution. 
Narco Analysis arguably falls within the scope of Article 21 by virtue of the invasion of the body and mind, which constitutes an invasion of privacy. There is a risk that the unconscious mind may reveal personal information that is irrelevant to the investigation. It is therefore imperative to establish standards of confidentiality and other safeguards, as privacy can be violated only by “procedure established by law”. No such safeguards exist in India and therefore Narco Analysis particularly if performed without consent amounts to a violation of privacy
At a criminal trial the accused is entitled to a presumption of innocence and the prosecution is bound to prove all the ingredients of the charge beyond reasonable doubt.[9]
the burden rests on the state to establish the constitutional validity of the impugned law
Section 45 of the Indian Evidence Act, 1872 allows experts’ opinions in certain cases.
It says: “When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.”
However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.
It would be wrong to include Narco Analysis among these when it has not been specifically mentioned therein. Therefore it comes out of the term of “procedure established by law”.
The use of Sodium Amytal in Narco Analysis was prohibited because the results of the interview were not considered scientifically reliable. The court opined that subjects are susceptible to filling in gaps in stories with fabricated detail (hyper amnesia), or believing in false events (memory hardening), and hypnotic recall, where thoughts of non-existent events become embedded in the memory. Therefore the test results should not be regarded as conclusive evidence there should be a need of corroborating statements made during Narco Analysis with other evidences that have been procured.[10]
Further more wrong dose can send the subject into coma or even result in death .the rate of administration is controlled to drive the accused slowly into a hypnotic trance. The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system , lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition the subject is then interrogated by the investigating agencies in the presence of the doctors.
The subject which is put in a state of hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions
It is explicitly proclaimed in Article Ten of the Universal Declaration of Human Rights, the Sixth Amendment of the US Constitution, and Article Six of the European Convention of Human Rights.
Moreover, article 14.3(g) of the U.N. Covenant on Civil and Political Rights, 1966, provides:
“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(g.) “Not to be compelled to testify against himself or confess guilt.”
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, provides:
“In the determination of his civil rights and obligations, or of any criminal charges against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
It was further explained that although not specifically mentioned in Article 6 of the Convention, there can be doubt that the right  to remain silent under the police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoid miscarriages of justice and to securing the aim of Article 6.
It is a general immunity, possessed by all, from being compelled on pain of punishment to answer questions and the answer, may incriminate them.
The Preamble of the International Covenant on Civil and Political Rights (ICCPR) states the following:
The States party to the present Covenant, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.
Part 3, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states the following, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”
The use of the truth serum test in considered as a torture in the international regime. The UN definition of torture clearly implies that the tests performed for obtaining information from suspects, amounts to severe mental suffering or coercion, hence, leading to torture. It has been evidently stated by the UN Committee against Torture that an authorized mode of application of ‘moderate physical pressure’ breaches the convention against torture.
Amnesty International declares the administration of Sodium Pentathol or any other truth serum for procuring information as amounting to torture on the grounds that it is cruel, inhuman and a degraded treatment. Hence, this process should be prohibited. Such a process also outlaws the international standards of interrogation.
The use of evidence obtained under duress has been prohibited by The Human Rights Committee by stating-“the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.’’ The Committee has further stated that, “the law should require that evidence provided by … any… form of compulsion is wholly unacceptable.” Use of drugs has been documented as a form of torture in a number of countries, including Chile and the former Soviet Union. It has also been noted that under US case laws confessions made under the influence of truth serums are also not “voluntary” and are consequently inadmissible as evidence.
India has still not ratified The UN Convention against Torture, though it has signed the same. 

[1] The State of Bombay V. Kathi Kalu Oghad and Ors. AIR1961SC1808
[2] Nandani Satpathay v. P.L Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424
[3] Kumari, S. Kusuma, Narco Analysis Right to Self Incrimination v. Public Interest, (2007)                                                                                  Cri LJ  (June) pp. 137- 141, All India Reporter, Nagpur, 2007. p.138
[4] Kalawati v. State Of Himachal Pradesh ,AIR 1953 SC 131:1953 SCR 564.
[5] Munn v Illinois 94 US 113 (1877)
[6] State of Punjab v. Mahinder Singh Chawla  AIR 1997 SC 1225.
[7] Francis Coralie v Delhi AIR 1981 SC 746
[8] G. Gurunadha Reddy v A.P. Road Transport Corporation AIR 1999 A.P. 179
[9] Woolmington v D.P.P (1935) AC 462
[10] State v. Pitt

03 March 2011
News and current affairs

Madhupreetha and her team from ILS Pune, after winning the Jessup south qualifiers this year, will be representing India at the world finals to be held at Washington D.C. this month. She spoke to Legally India’s MPL Team about the Jessup problem, the legal research involved and the passionate mooting culture at ILS.

02 March 2011
News and current affairs

The term abortion is not alien to a person, as it must been have been heard by him several times whether it is movie or it is news. The viewpoint of different persons has been different on the legality of abortion. Some argues that it is equivalent to murder, on the other had it has been argued by others that it is a right a of a woman to choose "Whether she wants to give birth or not". Canadian Intermediate Dictionary as "the deliberate ending of a pregnancy by causing the fetus to be expelled from a woman's womb", and it has remained one of the most controversial and ethical issues in Indian political and social scenario. Sometimes, it becomes a moral issue, sometimes it becomes an ethical issue, sometimes it becomes a constitutional issue and so on. It would very difficult to resolve the issue of abortion. Although, Indian Law has legalized the abortion, but it can be done only under special circumstances. There are various reasons behind legalizing abortion in certain special circumstances, because there has been a danger of persons undergoing abortion process in unhygienic conditions and without proper care. Let us have a look over certain laws and issues which relates to the Abortion in the Indian Society.

Abortion and Indian Law

The Indian legal system has always kept itself away from the legality of abortion for a long period of time due to various reasons. It has remained a matter of great concern, because their was a kind of fear in the minds of lawmakers that in case abortion becomes legalized, then there would a huge increase in practice of female foeticide. In the states like Haryana and Punjab, where the sex ratio is pathetic, there was a great concern over this issue. It would not be wrong to say that the practice of female foeticide was quite popular in North India, and it was the main reason why government was not willing to enact a law which would give legal right to a person to terminate the pregnancy. There had a large number of cases where women were willing to give birth to the child, but due to the pressure of her in-laws, she was forced to terminate her pregnancy. But even after all these concerns, legal status was provided to the abortion in the year Medical Termination of Pregnancy (MTP) Act under which pregnancy can be terminated. Under this provision, only doctors are eligible to perform the abortion and that too under special circumstances, and it has not been easy for a person to terminate the pregnancy. There are various reported Supreme Court and High Court cases which deal the matter of the abortion. Sometimes petitions have been filed under Article 21 of the Indian Constitution stating that a woman has a  Right to Life and Personal Liberty and if he doesn't want to have a child, then she should be allowed to terminate the pregnancy. The current status in Indian scenario is that Abortion is allowed, but under special circumstances.

The matter of concern relating to abortion is not confined only to India. There are various, or one should say a majority of countries which had remained very reluctant in enacting a law relating to the legalization of Abortion. Concern is not confined to the foecticide, but there are various cases of abortion when it is the woman who had to give up her life . According to the Consortium on National Consensus for Medical Abortion in India, every year an average of about 11 million abortions take place annually and around 20,000 women die every year due to abortion related complications. Following this, in the year 1994 determination of the sex of the fetus in India was criminalised. The number of Abortion cases in India in the year 2000 was 723142,and that is not a small figure. 

Abortion and Indian Society 

The issues of Abortion in the Indian Society has always remained a controversial issue. There have been a number of opposition from the various section considering the law which legalize abortion as a law against morality. Various persons, who claimed themselves to be religious leaders criticize this law and state that the act of abortion is equivalent to the murder i.e. Killing a of child who has not seen the world. According to them , every person has a right to life and so the children who had not taken birth. 

On the other hand this law is favoured by several other sections of the society claiming that it is the right of a woman " Whether she wants to give birth to a child or not", and if someone is forcing her to give birth to the child, then he is violating her life to life and personal liberty. It can be concluded that the issue of abortion in India would remain a controversial one.

Blog Page - http://www.cogitasocietatis.blogspot.com/2011/03/abortion-in-india.html

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25 February 2011
News and current affairs

 Sec-498 A I.P.C. – Its Use And Misuse



To start with first we have to look that what this word marriage means. ‘Marriage is the voluntary union for life of one man and one woman to the exclusion of all others.’ It is a social institution where husband has the responsibility to take care and maintain his wife. He cannot neglect his duties. But on this great institution a stigma called ‘dowry’ still exists. Women are ill-treated, harassed, killed, divorced for the simple reason that they didn’t brought dowry.

        For safeguarding the interest of woman against the interest of woman against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860(herein after referred to as I.P.C.) was amended in 1983 and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman.

        Matrimonial Cruelty in India is a cognizable, non bailable and non compoundable offence. It is defined in Chapter XXA of I.P.C. under Sec. 498A as:

Husband or relative of husband of a woman subjecting her to cruelty.
Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine. 
Explanation – for the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or 
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.[1]

        The section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act section 113-A has been added to the Indian Evidence Act to raise presumption regarding abetment of suicide by married woman. The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband.

Section 113-A of Indian Evidence Act[2], reads as follows:
Sec. 113-A, Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).
The object for which section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,1973 (in short ‘the Cr.P.C’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in- law’s and relatives. The avowed object is to combat the menace of dowry death and cruelty[3].

The act of harassment would amount to cruelty for the purpose of this section. Drinking and late coming habits of the husband coupled with beating and demanding dowry have been taken to amount to cruelty within the meaning of this section, but this section has been held not to include a husband who merely drinks as a matter of routine and comes home late[4]. In a case before Supreme Court it was observed that this section has given a new dimension to the concept of cruelty for the purposes of matrimonial remedies and that the type of conduct described here would be relevant for proving cruelty.

Meaning of Cruelty:
It was held in ‘
Kaliyaperumal vs. State of Tamil Nadu[5], that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. The two sections are not mutually inclusive but both are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC. The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well. Under section 498-A of IPC cruelty by itself amounts to an offence whereas under section 304-B the offence is of dowry death and the death must have occurred during the course of seven years of marriage. But no such period is mentioned in section 498-A.

In the case of ‘Inder Raj Malik vs. Sunita Malik[6]’ , it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.
Kinds of cruelty covered under this section includes following:
(a) Cruelty by vexatious litigation
(b) Cruelty by deprivation and wasteful habits
(c) Cruelty by persistent demand 
(d) Cruelty by extra-marital relations
(e) Harassment for non-dowry demand
(f) Cruelty by non-acceptance of baby girl
(g) Cruelty by false attacks on chastity
(h) Taking away children

The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A.

Constitution Validity of Section 498-A 
In ‘
Inder Raj Malik and others vs. Mrs. Sumita Malik[7], it was contended that this section is ultra vires Article 14 and Article 20 (2) of the Constitution. There is the Dowry Prohibition Act which also deals with similar types of cases; therefore, both statutes together create a situation commonly known as double jeopardy. But Delhi High Court negatives this contention and held that this section does not create situation for double jeopardy. Section 498-A is distinguishable from section 4 of the Dowry Prohibition Act because in the latter mere demand of dowry is punishable and existence of element of cruelty is not necessary, whereas section 498-A deals with aggravated form of the offence. It punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty to her. Hence a person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and this section.
This section gives wide discretion to the courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishment. This provision is not ultra vires. It does not confer arbitrary powers on courts.

In the leading case of ‘Wazir Chand vs. State of Haryana [8]’, involving the death by burning of a newly married woman, the circumstances did not establish either murder or an abetted suicide and thus in-laws escaped the jaws of section 300 and 306, but they were caught in the web of this newly enacted section for prevention of harassment for dowry. Not to speak of the things they are persistently demanding from the girl’s side, the fact that a large number of articles were taken by her father after her death from her matrimonial abode showed that there was pressure being exerted on-in laws and continued to be exerted till death for more money and articles.

      With the rise in modernisation, education, financial security and the new found independence the radical feminist has made 498A a weapon in her hands. Many a hapless husbands and in laws have become victims of their vengeful daughter-in-laws. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage. In most cases 498A complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court.

Sec 498A and the Allegation of Misuse:
In the last 20 years of criminal law reform a common argument made against laws relating to violence against women in India has been that women misuse these laws. The police, civil society, politicians and even judges of the High Courts and Supreme Court have offered these arguments of the "misuse' of laws vehemently. The allegation of misuse is made particularly against Sec 498A of the IPC and against the offence of dowry death in Sec 304B. One such view was expressed by former Justice K T Thomas in his article titled 'Women and the Law', which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a "general complaint" that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused. It is important therefore that such "arguments" are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women.

Domestic violence and abuse by spouses and family members are complex behaviours and the social organisation of courts, the police and legal cultures systematically tend to devalue domestic violence cases. Sec 498A was introduced in the IPC in 1983 and the reforms of the past 20 years have not been adequately evaluated at all by the government with respect to their deterrence goals, despite the institutionalization of law and policy to criminalise domestic violence. A program of research and development is urgently required to advance the current state of knowledge on the effects of legal sanctions on domestic violence. The narrow or perhaps almost negligible study done by law enforcement agencies about the deterrent effects of legal sanctions for domestic violence stands in high contrast with the extensive efforts of activists, victim advocates and criminal justice practitioners in mobilising law and shaping policy to stop domestic violence. It is important to do these studies to correct the general misconceptions that women are misusing the law by filing false cases against their husbands and in-laws in order to harass them and get them convicted. The perspective of the state and its agencies needs to change from that of protecting the husbands and in-laws against potential "misuse" of the laws of domestic violence to that of implementing their real purpose – to recognise that such violence is a crime and protect women who have the courage to file complaints against their abusers.

Article 15 of Indian Constitution
Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. However, it allows special provisions for women and children. Article 21A provides for free and compulsory education to all children from the ages of six to 14 years. Article 24 prohibits employment of children below 14 years in mines, factories or any other hazardous employment. The court also took note of Article 14 guaranteeing equality, and Article 21 providing that a person cannot be deprived of life and liberty except according to procedure established by the law. Similarly, Article 23 prohibiting human trafficking and forced labour was also referred to in the court’s judgment.

Moving away from fundamental rights to the directive principles, the court pressed into service provisions relating to the health of women and children. Article 39(f) directs the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and moral and material abandonment. Article 42 directs the State to make provisions for just and humane conditions of work, and maternity beliefs. Article 45 stipulates that the State shall provide early childhood care and education for all children until the age of six. Article 47 lays down the raising of level of nutrition and standard of living of people, and improvement of public health as a primary duty of the State.

       This section tries to maintain that every married woman needs to be given due respect and treated with care. It reinforces the fact that a woman is not a toy to be played with, to be thrown away at one’s whims and fancies and treated as inferior to any other. It inherently asks for husbands to treat their wives well and not misbehave or demand unjustly which in a way sends forth a message that a woman is a commodity for sale.

What section 498A IPC tries to do is prevent and punish the above act and re-assert a woman’s

right to live a peaceful and happy life.


Use of Section 498 A by Indian Courts:


 Indian Courts had been using this provision to safeguard the women from facing the cruelty faced by them at their matrimonial home.

9 out of 10 of the cases are always related to dowry, wherein the woman is continuously threatened for want of more money and property which if remains unfulfilled , the married woman is tortured, threatened, abused- both physically and verbally and harassed. Like in the case of Ram Kishan Jain &Ors v State of Madhya Pradesh[9] due to insufficiency of dowry demands the woman was administered calmpose tablets and thereafter she even cut the arteries of both her hands. Sometimes, dowry may not be the cause but the woman for several reasons like her complexion or family status is tortured to death.

In the case of Surajmal Banthia & Anr. v. State of West Bengal[10], the deceased was ill-treated and tortured for several days and even not given food several times. Her father- in-law also misbehaved with her quite often. This is the treatment that several young brides face when they move out of their parents’ home and into the house of her in-laws’. It is the duty of the court to prevent any of these abusers from escaping. The increasing rate of bride burning for want of more dowry and brutal torture of young wives, together with a clear escape of the abuser is a clear indication that the court has not taken any strong measures for the implementation of S. 498A IPC properly.

As stated earlier many a times this victim turns into the abuser and is clearly not wronged but

instead wrongs the husband and his family for no fault of theirs. Several cases show that the married woman takes advantage of the section and sends the respondents to jail under the ambit of this section.

Many women rights’ groups justify the abuse of this section as being a common feature with all

other laws and that also the ratio of false cases to that of true ones as being very low. But this still does not change the truth that there is slowly a rise in the abuse of S.498A IPC.

In many judgments, the court has not considered mental cruelty caused to the woman but has

concentrated only on any sign of physical cruelty. If evidence does not show that the woman was

physically harassed, then the court does not look into the case. What the court does is call the

woman hyper- sensitive[11] or of low tolerance level and having an unstable mind[12].

Also S.498A IPC does not only deal with dowry deaths but also any willful conduct on part of the husband which causes harm to the wife’s ‘ life, limb or health (whether mental or physical).’To prove that cruelty was caused under Explanation a) of S.498A IPC it is not important to show or put forth that the woman was beaten up- abusing her verbally, denying her conjugal rights or even not speaking to her properly[13] would fall into the ambit of mental cruelty.

Showing any mercy to abusers or giving them the ‘benefit of doubt’ when some proof to torture at their hands is present is completely wrong. Like in the case of Ashok Batra & Ors v State[14]even though letters of the deceased stating that harassment had taken place was present, not treating them as strong evidence and giving the appellants a benefit of doubt without ordering for a further investigation into the matter is wrong.

The judges have in several instances made a very narrow interpretation of this section, considering it to be only cruelty in relation to unlawful demands or dowry demands. In a particular case, the court went to the extent of stating that ‘merely because her in-laws or husband were to chastise the woman for improper or immoral conduct, it does not necessarily amount to cruelty.[15]’ This act of chastising the woman clearly amounts to mental cruelty, something that the court apparently failed to notice. Here, considering the woman to be a hyper- sensitive woman not used to usual wear and tear of social life is completely erroneous.

In the case of Bomma Ilaiah v State of AP[16] the husband of the complainant tortured the woman

physically by forcing his wife to have sexual intercourse with him. He inserted his fingers and a stick in her vagina, causing severe pains and bleeding but the court found the husband of this

Woman guilty only under S. 325 IPC and not S, 498A IPC. Why? Her life both physically and

Mentally was at risk. Didn’t the court notice this?

The court has in another case not punished the guilty under S.498A IPC even though medical

Reports clearly showed that the death was homicidal by throttling. This was simply because

According to the court, even though there were dowry demands in the past, the court felt that

Proximity of the death to be caused due to such a demand was unlikely[17]. Who decides this

Proximity? The cause and its effect on the woman’s health or life may be profound and even cause her mental unrest at a later stage.

While on the on hand, women’s emancipation is the need of the hour and prevention of ever

increasing dowry deaths and harassment needs to be stopped, it is also clearly noticed that women today are still tortured and often the court, being the ultimate savior also does not come to the rescue to protect these women.



Misuse of Section 498 A in Modern World:


 A violation of this section, its goals and its aims is on the rise with the woman

frivolously making false allegations against their husbands with the purpose of getting rid of them or simply hurting the family.

The abuse of this section is rapidly increasing and the women often well- educated know that this

section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.

Like in the case of Savitri Devi v Ramesh Chand & Ors[18], the court held clearly that there was a

misuse and exploitation of the provisions to such an extent that it was hitting at the foundation of

marriage itself and proved to be not so good for health of society at large. The court believed that

authorities and lawmakers had to review the situation and legal provisions to prevent such from

taking place.

This section was made keeping in mind protection of the married woman from unscrupulous

husbands but is clearly misused by few women and again this is strictly condemned in Saritha v R. Ramachandran[19]where the court did notice that the reverse trend and asked the law Commission and Parliament to make the offence a non-cognizable and bailable one. It is been a duty of the court to condemn wrongdoings and protect the victim but what happens when the victim turns into the abuser? What remedy does the husband have here?

On this ground, the woman gets to divorce her husband and re-marry or even gain money in the

form of compensation.

Many women rights’ groups go against the idea of making the offence a non-cognizable and

bailable one thinking that this gives the accused a chance to escape conviction. But what this would do is that it would give a fair chance to the man and above all help meet the ends of justice. Justice must protect the weaker and ensure that the wronged is given a chance to claim back his/her due.

When women accuse their husbands under S.498A IPC by making the offence non-bailable and

cognizable , if the man is innocent he does not get a chance quickly to get justice and ‘justice

delayed is justice denied’. Therefore, the lawmakers must suggest some way of making this section non-biased to any individual such that the guilty is punished and the person wronged is given justice.

The position of the women in India is still bad. They still need rights to alleviate themselves in

society but many a times fail to notice others’ rights as long as their rights are ensured. The

educated woman of today must agree with the mantra of equality and demand the same but the

trend is slowly getting reversed. Women are taking due advantage of the fact that they are referred to as the ‘weaker sex’ and on the foundation of rights ensured to them are violating others’ rights.


Recent Judgements:


Indian Courts in their recent judgements have looked into the matter of misuse of Sec.-498A I.P.C. As this Section provides that when an F.I.R. is lodged all the family members of the husband can be roped in. In their judicial observations and remarks, the courts have expressed deep anguish over this law. Here are some recent judicial observations.


1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana[20], case as:


“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”


In Kanaraj vs. State of Punjab[21], the apex court observed as:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”


Karnataka High Court, in the case of State Vs. Srikanth[22], observed as:

“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”


Supreme Court, In Mohd. Hoshan vs. State of A.P.[23] case, observed as:


“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others[24], observed as:


“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.  

But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”


The Court and Legislature have to make changes if the laws of matrimonial cruelty are to be of any deterrence.    Looking into the recent observations and the increase in the misuse of this Section, there should be certain amendments which should be brought up in this law:

1. Role of Women NGOs: These organizations should investigate complaint properly without any bias towards the woman keeping in mind that the law is being misused largely to harass more women in husband’s family. They should not encourage any woman to file a criminal case against her in-laws for trivial matters. Foreign Women Organizations should also take responsibility of not allowing false complaint to be registered against NRI’s just to harass and extort huge amount of money from them. These organizations should also conduct survey/research on the misuse of the act and should educate people about its consequences. If these organizations are found to be assisting in filing false complaints, then they should be made liable for prosecution in the country where they are functioning.


 2. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-laws have come to light from different parts of the country. As of now there is no organization, which can really help these harassed men and his family members, to listen their side of the story and put their point of view in front of the government. Need of the hour is to create family counseling centers across the country to help those aggrieved families.


 3. Time bound Investigation and Trial: A speedy trial of 498(a) cases will not only ensure justice for the innocents that have been implicated in false charges, it will also lead to prompt redressal of the grievances of real dowry victims .The reduction in false cases will also reduce the burden on judiciary and expedite the processing of real cases.


4. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law. There should be provision for men also to file a case for mental cruelty by his wife.


 5. Investigation by Civil authorities: The investigation into these offences be carried out by civil authorities and only after his/her finding as to the commission of the offence, cognizance should be taken. The government should create awareness among officers about its misuse.


 6. Bailable: The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them.


 7. Compoundable: Once FIR has been registered it becomes impossible to withdraw the case even if wife realizes that she has done a blunder and wants to come back to her matrimonial home. To save institution of marriage this should be made compoundable. Moreover, in the scenario where the couple decides to end the marriage by mutual divorce, continuation of criminal proceedings hamper their life.


 8. Arrest Warrants: Arrest warrant should be issued only against the main accused and only after cognizance has been taken. Husband family members should not be arrested.


 9. Penalty for making false accusation: Whenever any court comes to the conclusion that the allegations made regarding commission of offence under section 498a IPC are unfound, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families.


 10. Court Proceedings: Physical appearance of the accused on hearing should be waved or kept low to avoid hassles in appearing to the court, especially for NRIs. The court should not ask to surrender passport of the husband and his family which could cost job of the husband and his family members.


 11. Registration of Marriage and Gifts Exchanged: The registration of marriages should be made compulsory along with the requirement that the couple make a joint declaration regarding the gifts exchanged during marriage.


 12. Punish Dowry Givers: If the complainant admits giving dowry in the complaint, the courts should take cognizance of the same and initiate proceedings against them under the relevant sections of the Dowry Prohibition Act


 13. Penalize corrupt Investigation Officers: If it is apparent to the court that a fair investigation has not been conducted by the investigation officer, and that the husbandand his family have been charge-sheeted without proper verification of the complaint, the investigation officer should be penalized for gross negligence of duty.


 14. NRI Issues : Unless they are proven to be guilty after the due judicial process, NRIs should be a given a fair chance to justice by assuring them of the following -a) Permission to return to country of employment b) No impoundment/revocation of passport and no Interpol Red Corner Notices. c) No unnecessary arrests d) Expeditious investigation and trial


15. Gender Neutral: Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife.[25]

This Section only provides for the remedy to woman only and these days it is being used as a ‘brahamastra’ by the woman. It is a highly debatable issue these days, if this problem is not solved by legislation it may become a bane for the society. People’s trust over the judiciary will come to an end. So it’s high time that this Section be amended and some changes like mentioned above should be brought up in this law.











[1] The Indian penal Code, Ratanlal and Dhirajlal, 30th edition reprint 2008,pg. 917

[2]  The Indian Evidence Act, 1872 ,Ratanlal &dhirajlal, 21st edition reprint 2009,pg. 560

[3]  Sushil Kumar Sharma vs. Union of India;JT 2005(6) SC266

[4]  Jagdish Chander vs. State of Haryana,1988 Cr. LJ 1048 (P&H)

[5] 2004 (9) SCC 157; 2004 SCC(Cr) 1417; 2003 AIR(SC) 3828

[6] 1986 (2) Crimes 435; 1986 (92) CRLJ 1510; 1986 RLR 220

[7] Ibid.

[8] 1989 SCC(Cr) 105; 1989 (1) SCC 244; 1989 AIR(SC) 378; 1989 (1) Crimes 173; 1989 (95) CRLJ 809

[9] II (2000) DMC 628

[10] II (2003) DMC 546 (DB)

[11] State of Maharshtra v Jaiprakash Krishna Mangaonkar & Ors II(2003) DMC 384

[12] Annapurnabai @Bhoori v State of MP I (2000)DMC 699

[13] Ramesh Dalaji Godad v State of Gujarat II (2004) DMC 124

[14] I (2003) DMC 287

[15] U.Subba Rao & Ors v State of Karnataka II (2003) DMC 102; Umesh Kumar Shah &Ors v State of Bihar

I (2004) DMC 260

[16] II (2003) DMC 461

[17] Ravinder Bhagwan Todkar & Ors v State of Maharashtra & Ors I (2004) DMC 791 (DB)

[18] II (2003) DMC 328

[19] I (2003) DMC 37 (DB)

[20] (1990)2 Rec Cri R 243

[21] 2000 CriLJ 2993

[22] 2002 CriLJ 3605

[23] 2002 CriLJ 4124

[24] JT 2005(6) 266

[25]  After looking to the report of following suggestions have been made Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003  <http://www.mha.nic.in/pdfs/criminal_justice_system.pdf>chapter 16.

25 February 2011
News and current affairs

Rape Laws in India

Rape is a stigma which exists in the society from a long time. The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375[1] of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape. Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.

U/s 228A[2] of Indian Penal Code, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.

U/s 114-A[3] of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.

U/s 53(1)[4] of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

U/s 164A[5] of Code of Criminal Procedure, provisions for medical examination of rape victim are given.

U/s 327(2)[6] of Code of Criminal Procedure, there should be in camera trial for all rape victims.

The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases comes very late. Sometimes it comes so late that either of the parties had died. So, there should be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice delayed is justice denied.”

As every coin has two sides, in this case also there are two sides. Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. “Law is there for vigilant.”


                Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of'……..writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life”.[7]

Rape is a crime against basic human rights and is also violative of the victim's most cherished of the fundamental rights, normally, the right to life contained in Article 21[8].

Incidence and prevalence:

South Africa has the highest per capita rate of reported rapes in the world: 119 per 100000 people, according to the UN. That compares with 30 per 100000 in the US. Analysts and women’s advocacy groups argue South Africa’s total, including unreported rapes could be five to nine times higher[9].

Police statistics show more than 50000 rapes are reported every year[10]. In 1987 and 1991 number of cases reported were7767 and 9793 respectively. About 26% (11112) increase in number in the year 1992 - (NCRB). There is one rape in every 54 minutes[11].

As observed by Justice Arjit Pasayat:
" While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."

Justice Krishna Iyer has observed in a very famous case of Rafiq v. State[12]:

“A murderer kills the body but a rapist kills the soul.”

What is Rape?

Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called "assault by penetration", which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person's consent.

Sexual offence act, 2003 states as follows:-
(1) A person (A) commits an offence if- (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents[13].

With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon'ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it's punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense.

Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860[14])

A man is said to commit "rape" if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

1.      Against her will.

2.      Without her consent.

3.      With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

4.      With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

5.      With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

6.      With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

AMENDMENTS TO RAPE LAWS IN 1983[15] were made to address mainly 3 issues :
A.        Minimum Punishment in rape cases (IPC Section 376 sub section 1)
B.        Special cases of rape (IPC Section 376 subsection 2 a-g )& A)
C.        Marital Rape (IPC Section 376 A)
D.        Abuse of official power (IPC Section 376,B,C,D)

A.        MINIUM PUNISHMENT (Section 376 subsection 1 of Indian Penal Code)

1.         Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both : Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

Prior to this amendment, minimum punishment wasn't specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment can be reduced.

B.        SPECIAL CASES OF RAPE like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code)

1.         Rape of a woman who is under twelve years of age [Sec.376 (2) (f)] Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.

2.         Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused

3.         Gang Rape ( Sec.376 Subsection 2- g)
"Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. "
Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Exemption from burden of proof :
If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

4.         Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):
Rape committed on a woman in their or their subordinate's custody by

a) police officer
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; b) public servant c) management or the staff of a jail, remand home or other place of custody or a women's or children's institution d) management or on the staff of a hospital Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :Provided that the court.

To understand the impact of sexual harassment on women one must listen to the account of its victims as no one conveys the meaning and truth of sexual harassment better than the women who have endured it. In response to the question "What kind of emotional response do eve-teasing /sexual harassment evoke in you", not a single woman ticked the category of "indifferent". The survey of the Gender Study Group shows that most women felt disgusted, insulted and scared by any sort of harassment.

Women often internalise male perceptions of sexual harassment and blame themselves for having brought on the harassment. They not only doubt the validity of their own experiences but begin to believe that they themselves must be 'abnormal', ‘cheap’, 'indecent' or deserving the violence that comes their way.

Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that all cases of sexual harassment are such- where the accused is guilty of conceiving the intention of a sexual intercourse. But it also depends on each individual case and circumstances, because it may well be the case that the woman may also be at fault. 

Every 60 minutes, two women are raped in this country. What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB).  A total of 20,737 cases of rape were reported last year registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the “rape capital” of the country by topping the list of such incidents.

Going by the NCRB statistics, two women are raped in the country every hour.  Madhya Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records of high incidence in other states include Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were sexually assaulted.

In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbours were involved.  Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved.  “Everywhere in this country, over 90 per cent of the victims are raped by person known to them,” a senior police official said.[16]

According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof. 

In instances where women have reported such illegal and unwelcome behavior, there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so.

As Kiran Bedi., Retd. Joint Commissioner, Special Branch has observed:
The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it."

 In the Mathura rape case[17], wherein Mathura- a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.

Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.

 The case came for hearing on 1st June, 1974 in the session’s court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.

 On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

When the appeal was made to the Supreme Court, the Senior Counsel “Ram Jethmalani” while defending the accused Policemen divided the concept of consent into two i.e. Express and Implied consent. He said that there was not express consent but it was implied because Mathura raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc, he again said if there had not been any consent, there would have been at least a cry for help. These circumstances are enough to show that there was implied consent. The Supreme Court acquitted both the accused and held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

 The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983[18] has made a statutory provision in the face of Section.114 (A) of the Evidence Act[19], which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

In Mohd.Habib Vs State[20], the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.

In State of Punjab vs. Gurmit Singh[21], the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar[22], held that "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."

In Delhi Domestic Working Women v. Union of India[23], the Apex Court laid down the following broad guidelines:

·         The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly.

·         Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary.

·         The police should be under duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

·         A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

·         In all rape trials anonymity of victim must be maintained, as far as necessary.

·         A “Criminal Injuries Compensation Board” should be established.

·         Interim compensation should be given to rape victim even if the case is still going on in the court.

·         Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence.

·         Compensation should be provided to rape victim to rehabilitate herself.

In B. Gautam v. Shubra Chakraborthy[24], it was held that Rs. 1000 per month should be given to rape victim as an interim compensation.

In Chairman, Railway Board vs. Chandrima Das[25], a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon) - a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.



An appeal was preferred and it was contended by the state that:

a)      The railway was not liable to pay the compensation to the victim for she was a foreigner.

 b)     That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should     have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226. 

Considering the above said contentions, the Supreme Court observed:
"Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution."

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.

Causes of Increased Rape Cases in India:

Rape, molestation and abductions, the crimes are numerous but low conviction rates for the same is one of the major reasons for the growing number of offences against women, point out experts.

"Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we have today. There is hardly any deterrence. Law should provide fast track courts to deal with such cases," says Girija Vyas, Chairperson, National Commission for Women (NCW).

While there were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction rate for such crimes, is below 30 per cent. For rape it is just a dismal 27 per cent.

Brinda Karat, All India Democratic Women's Association (AIDWA), member says, "I have raised the issue in the Parliament several times that there is a need to step up conviction rate in rape cases drastically. Poor legal system, wrong understanding of policemen in these cases and lengthy procedures especially in child rape where after horrifying rounds of investigation the victim starts feeling that she is an accused and should not have registered the case, are few reasons for low conviction rate."

"In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and have demanded enforcement of stringent laws by government," she adds.

Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a moving car in the national capital, Vyas says, "This is a special case and it should be dealt with a fast track court. On many occasions, complains do not get registered on time and then it is very difficult to prove that rape actually happened. It should be registered within 24 hours of the incident."[26]

The accused believe they can get away with it. Officials are corrupt and easily bribed (some are even committing rapes themselves). Women are shamed and humiliated when they come forward because of the backward notion that it's the woman's fault (even when the 'women' are young children). If they make a case, it becomes public knowledge and their families and society shun them in many cases as they are then seen as 'damaged goods'. If unmarried they will have great difficulty getting married. Courts don't always do justice for the victim and find rapists not guilty for ridiculous reasons. Predators know this and take advantage of it. Even if they get caught, if they have enough money or influence, nothing will happen to them. A woman would have to turn the case into a media circus to have a chance at justice and 90% of rape victims in India would not do so out of fear and shame[27].

There is a need for review in certain provisions under various laws related to rape so that victims get justice.

The National Commission for Women has identified nine areas for review[28]. These are:
1. Review of the definition of rape
2. Reduction of procedural delays
3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869
4. Whether exception to section 375 should be deleted 5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted. 6. Whether statutory provisions are needed for compensation to the rape victim 7. Whether provisions for counseling legal aid should be made mandatory under laws. 8. Death penalty to persons convicted for rape 9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.


          The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.

Law remains but the number of victims (including minor) continues to increase destroying the very soul of the helpless women. The concept of marital rape does not exist in India. Contrary to the popular belief rape is almost never perpetrated for sexual gratification. It is an ‘acts of violence that happens to be expressed through sexual means’.

The Amendment 1983 has brought about some important changes in the existing laws of rape as a response to the growing public opinion demanding more stringent anti rape laws. It amends Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.

Severe and certain punishment in a time bound manner, of the rapists has some deterrent value. Arrest alone may not constitute a strong societal response. Lengthy prison sentences have some behavior-altering deterrent values. Many well-known jurists and public men have advocated capital punishment for the criminals who commit rape as it is an offence worse than murder so far as its impact is concerned. Still there is need for amending the anomaly related to the age of consent, and of wife in accordance with the Marriage Act in India.

[1] See Ratanlal & Dhirajlal, Indian Penal Code1860 , 10th Ed., Eastern Publication House 2004, at pg. 3

[2] Ibid.

[3] See Indian Evidence Act,1872

[4] See Code Of Criminal Procedure,1973

[5] Ibid.

[6] Ibid.

[7] Bodhisathwa Gautam v.Shubra Chakraborty,(1996)(1)SCC14

[8] Indian Constitution

[9] The Tribune , September 2, 2005

[10] The Times Of India , September 2,2005

[11] A publication of the Department of Women and Child, Govt. of India

[12] 1980 Cr..L.J. 1344 SC

[14] Ibid.

[15] The Criminal Law (Amendment) Act, 1983, (Act 43 of 1983), w.e.f. 25-12-1983

[16] www.lawyersclubindia.com

[17] Tukaram, 1978 Cr.L.J. 1864 S.C

[18] Ibid.

[19] Ibid.

[20] 1989 Cr.LJ 137 Delhi

[21] (1996) 2 SCC 384

[22] (1991) 1 SCC 57

[23] (1995) 1 SCC 14

[24] Ibid

[25] AIR, 2000 SC 988

[26] www.expressindia.com

[27] www.yahoo.com

[28] Author Saakshi O. Juneja, Posted in Government India Women

25 February 2011
News and current affairs


What is ‘Prior Restraint?’

The taking of legal action before an anticipated wrongdoing. Remedies to prevent a threatened illegality from taking place include the use of injunction or prohibition and declaration. In English law, an injunction may take the form of either a negative or positive requirement, depending on how best to deal with the illegality. In order to obtain an injunction, the plaintiff must show he has an arguable point of law and that on the balance of convenience an injunction ought to be given.[1]
Prior Restraint is not defined in Indian law and if someone puts a prior restraint it has been held unconstitutional be our own S.C. in cases like Ramesh Thapar v. State of Madras[2], Brij Bhushan v. State of Delhi[3], etc.

“Freedom of expression – in particular, freedom of the press – guarantees popular participation in the decision and actions of government, and popular participation is the essence of our democracy…” [4]

 The Right to freedom of speech and expression is given under Art. 19(1) (a) of our Indian Constitution. It is probably the most universally accepted human right.[5] Freedom of Press is considered as the fourth pillar, it must be protected in every democratic society.  This freedom can only be available in a society where there is a right to free speech and expression. Similarly, the freedom of information can be enjoyed only if there are sources from which information can flow. These sources, again, would be available where there is a right to speech and expression. The freedom of expression and the freedom to receive and impart information are corollary of one another. In fact, there is an overlap between the freedom of expression and the freedom to receive or impart information. The freedom to impart information can be considered as an expression of an opinion, of the informant or of a third person. The seeking of information, on the other hand, precedes the formation of an opinion by the person who seeks the information, and consequently also its expression. But with regard to the press, freedom of expression and information run parallel to each other. While the press might be the medium of expression, someone else might possess the information. Until and unless these two freedoms are exercised together both would be useless. In the case of information the only one who has the right of free distribution of that information is the party who is the author, originator or otherwise the intellectual owner of the information in question. In case of the press, however, the press can express opinions of others also, of course, held in good faith and believed to be true. It is incumbent on the press, with regard to the print media as well as audio-visual media, to impart information and ideas which the public has the right to receive. Otherwise, the press would not be able to play its role of ‘public watch dog’. Freedom of press is conferred on by virtue of article 19 (1) (a). This constitutional provision is getting obsolete in the newly evolved scenario and therefore it needs to be revised. Thus for exercising the freedom of expression one must have the freedom of information. In this regard, the approval of the Freedom of Information Bill, 2000 (Information Bill) by Indian Parliament would be a welcome move.



Prior Restraint in U.S.:

In U.S. prior restraint is a legal term related to ‘censorship’ referring to government actions that prevent communications from reaching the public.

William Blackstone defines “Freedom of Press” as the right to be free from prior restraints. Prior restraint is often considered a particularly oppressive form of censorship in American Jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the market place. Thus it is often considered to be the most extreme form of censorship.

U.S. Supreme Court has given many landmark judgments regarding the prior restraint. The first notable case in which the United States Supreme Court ruled on a prior restraint issue was, Near v. Minnesota[6]. In that case the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues. The ruling came about after Jay Near's newspaper, The Saturday Press, a small local paper that ran countless exposés of Minneapolis's elected officials’ alleged illicit activities, including gambling, racketeering, and graft, was silenced by the Minnesota Gag Law of 1925, also known as The Public Nuisance Law. Near’s critics called his paper a scandal sheet, and alleged that he tried to extort money threatening to publish attacks on officials and others. In the Near case the Court held that the state had no power to enjoin the publication of the paper in this way – that any such action would be unconstitutional under the First Amendment. It wrote:

“If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.”

 In Nebraska Press Assn. v. Stuart[7] S.C. noted:

“The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.

"A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time."


Any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity. Carroll v. Princess Anne[8]; Bantam Books, Inc. v. Sullivan[9]. Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.

This shows the strong later acceptance of what had been a disputed decision when it was first handed down

In the Pentagon Papers case (New York Times Co. v. United States[10]), the Nixon administration sought to enjoin the New York Times and the Washington Post newspapers from publishing excerpts from a top-secret United States Department of Defense history of the United States involvement in the Vietnam War from 1945 to 1971. The government tried to use the “national security” exception that had been suggested in the Near decision. The Supreme Court struck down the injunctions. However, the decision was fragmented, with nine separate opinions being filed in the case. It was not clear at the time what the effect would be on future prior restraint cases.


Prior Restraint in U.K.:

In U.K. historically, restriction of the press has occurred in two ways. The first may be either censorship or mandatory licensing by the government in advance of publication; the second is punishment for printed material, especially that considered by the government to be seditious libel, i.e., material that may “excite disaffection” against constituted authority. Censorship of the press began not long after the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to submit copy to church authorities before publication, in order to prevent heresy. Penalties for bypassing the censors included fines and excommunication. Stronger restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to be applied more to political criticism than religious heresy. John Milton in his Areopagitica (1644) attacked the licensing law and called on Parliament to suppress offensive publications after their appearance if necessary. Milton's objections to prior restraint eventually became a cornerstone of press freedom, but it was not until 1695 that the licensing and censorship laws were abolished. Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government.

There are several Acts of the United Kingdom Parliament for the protection of official information, mainly related to national security. The latest revision is the Official Secrets Act 1989(1989 chapter 6), which removed the public interest defence by repealing section 2 of the Official Secrets Act 1911. In 2004, a memo containing details of a possible US bombing of broadcaster Al Jazeera was leaked to the press. Attorney General Peter Goldsmith has warned newspapers that they could be prosecuted under the Official Secrets Act if they publish the contents of the memo, saying "You are reminded that to publish the contents of a document which is known to have been unlawfully disclosed by a crown servant is in itself a breach of section 5 of the Official Secrets Act 1989".

The Terrorism Act 2006 makes it an offence to "glorify" terrorism. There are concerns that this could limit free speech.

DA-Notices are official but voluntary requests to news editors not to publish items on specified subjects, for reasons of national security.

In 2007/2008 It was announced that the trial of Wang Yam, accused of murdering Allan Chappelow would be held 'in camera'. This was the first murder trial behind closed doors. The UK press was prohibited from speculating as to the reasons for this order.[11]

In 2008/2009 the press was barred from printing the names of concerned parties in the murder of Baby Peter, a 17 month old boy. Websites which published the names of the defendants and the boy came under police investigation for conducting an "internet hate campaign." [12]

Thus, in U.K. prior restraint can be imposed on the publications, broadcasting of anything by the media. 

Prior Restraint In India:

Freedom of the Press was one of the constitutional guarantees persistently demanded by India's freedom fighters during British colonial rule. The British masters disdainfully turned down the demand on the ground that abstract declarations of rights are useless, unless there exist the will and the means to make them effective. Not surprisingly after Independence and during the framing of India's Constitution in the Constituent Assembly, the Founding Fathers attached great importance to Freedom of the Press. They believed that central to the concept of a free press is the freedom of political opinion and at the core of that freedom lies the right to criticise and censure the government. Surprisingly freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights in the Indian Constitution. The omission was noticed and criticised in the Constituent Assembly. Dr. B. R. Ambedkar, the principal architect of the Constitution, assured the members that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.

This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Press is implicit in the guarantee of freedom of speech and expression in Article 19(1) (a) of the Constitution[13]. Thus freedom of the press by judicial interpretation has been accorded constitutional status[14]. This is an instance of Constitutional implication. However there is a strong body of opinion, which favours specific mention of freedom of the press as a fundamental right. No fundamental right guaranteed by the Constitution of India is absolute. Freedom of the press also can be restricted provided three distinct and independent prerequisites are satisfied.

(1)   The restriction imposed must have the authority of law to support it. Freedom of the Press, like any other fundamental right, cannot be curtailed by executive orders or administrative instructions, which lack the sanction of law.

(2)   The law must fall squarely within one or more heads of permissible restrictions specified in Article 19(2), namely, (a) security of the State, (b) sovereignty and integrity of India, (c) friendly relations with foreign States, (d) public order, (e) decency or morality, (f) contempt of court, (g) defamation or (h) incitement to an offence[15]. In its landmark judgment in the case of Sakal Papers[16], the Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession.

(3)  The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable[17]

One of the vexed issues before the Court has been that of censorship by way of prior restraint. There is no provision in the Indian Constitution permitting or proscribing censorship. The sting of censorship lies in prior restraint which affects the heart and soul of freedom of the press. Expression is snuffed out before its birth. The communication in question may never see the light of day. Suppression by a stroke of the pen is more likely to be applied by the censoring authorities than suppression through a criminal process and thus there is far less scope for public appraisal and discussion of the matter. That is the real vice of prior restraint and its irresistible attraction to the censor. Is prior restraint intrinsically evil? Is it per se unconstitutional? There is unending debate on this question. In the Japanese Constitution (Article 21) and the German Constitution (Article 5) pre-censorship is prohibited. Again the American Convention on Human Rights (San Jose) 1969 (ACHR) expressly states in Article 13(2) that freedom of expression "shall not be subject to prior censorship". There was strong American influence in the drafting of the Japanese and German Constitutions after World War II. Yet even in the land of the First Amendment, for which there is more reverence than to the Ten Commandments, and despite the robust American tradition and the thrust of US judicial opinion against censorship, there is no absolute rule against prior restraint. Indeed, its necessity has been recognised, albeit in exceptional cases, by the United States Supreme Court in the seminal case of Near v.Minnesota, the sheet anchor of the opponents of prior restraint. The Court observed that the protection even as to previous restraint is not absolutely unlimited and listed as exceptions obstructions to recruitment during war, publication of military movements, obscenity, incitements to acts of violence and the overthrow by force of orderly government, and words that "may have all the effect of force"[18].

The Supreme Court of India in May 1950 had to resolve the question in Brij Bhushan v. The State of Delhi.[19] Section 7(1)(c) of the East Punjab Safety Act 1949 provided for submission of material for scrutiny if the government was satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to public safety or the maintenance of public order. The Court declared the statutory provision in question unconstitutional on the ground that the restrictions imposed were outside the purview of Article 19(2) as it then stood, which did not include public order as a permissible head of restriction. The Court did not rule that prior censorship is per se unconstitutional. Indeed, in 1957 the Court upheld censorship imposed under the Punjab Special Powers (Press) Act 1956 for a temporary period, which provided for a right of representation to the government[20]. It is noteworthy that another statutory provision imposing censorship without any time limit and without providing any right of representation was struck down by the Court in a judgment delivered on the same day.[21]

India's worst brush with censorship occurred during the spurious emergency declared by the government of Prime Minister Indira Gandhi on 25 June 1975. Censorship of the Press was imposed for the first time in independent India by the promulgation of a Central Censorship Order, dated 26 June 1975. No censorship was imposed during two previous declarations of emergency, in 1962 and in 1971, when the nation was fighting a war. Under the Indian Constitution during an emergency, fundamental rights, including freedom of speech and expression and the freedom of the press, stand suspended. Censorship, which in normal times would be struck down, becomes immune from constitutional challenge. Taking advantage of the emergency, numerous repressive measures were adopted in the form of executive non-statutory guidelines, and instructions were issued by the censor to the press. One of the instructions of the censor was that "nothing is to be published that is likely to convey the impression of a protest or disapproval of a government measure[22].

 Consequently anything that smacked of criticism of governmental measures or action was almost invariably banned, even if the criticism was sober and moderate. The censor's scissors were applied arbitrarily and in a few cases its decisions bordered on the farcical. Quotations from Mahatma Gandhi, Tagore and Nehru were banned. A statement by the Chairman of the Monopolies and Restrictive Trade Practices Commission criticising the working of public sector undertakings was blacked out. Other ludicrous instances are the bans imposed on news about a member of a former royal family, Begum Vilayat Mahal, squatting at New Delhi railway station; a report about junior lawyers marching to the Delhi High Court; a London report of the arrest of a famous Indian actress for shoplifting; and the news about a meeting of the Wild Life Board, which considered the grant of a hunting licence to a certain Maharajah’s brother.[23]

These bans had nothing to do with the security of the State or preservation of public peace and order but reflected the capricious working of the censoring authorities. Some of the censors directives were sinister, like the ones prohibiting any reference to the transfer of State High Court judges, banning publication of judgments of High Courts which ruled against the censor, "killing" news of the opposition of certain State governments to proposed constitutional amendments, banning reports of alleged payoffs made during the purchase of Boeing aircraft and suppressing criticism of family planning programs. The object was not merely withholding of information but manipulation of news and views to legitimise the emergency and make it acceptable. One tragic consequence was that inhuman practices like forcible sterilisation of young men after removing them from buses and other excesses of over-enthusiastic family planning officials came to light much later after the events, by which time family planning had become an anathema to the rural masses. An urgent and important programme suffered a serious setback owing to suppression of freedom of the press by the censor.

The Indian judiciary, especially the State High Courts, displayed commendable courage in striking down the censor's orders and upheld the right of dissent even during the emergency. The High Court of Bombay in its landmark judgment in Binod Rao v. Masani delivered on 10 February 1976 declared:

It is not the function of the censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to tow along in a single file or to speak in chorus with one voice. It is not for him to exercise his statutory powers to force public opinion in a single mould or to turn the Press into an instrument for brainwashing the public. Under the Censorship Order the censor is appointed the nursemaid of democracy and not its gravedigger. · Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication[24].

The Court, however, cautioned that the voice of dissent cannot take the form of incitement of revolutionary or subversive activities, for then instead of serving democracy it would subvert it. The High Court of Gujarat in its judgment in C. Vaidya v. D Penha castigated the censorship directives for imposing upon the people "a mask of suffocation and strangulation". In construing the expression "prejudicial report", the Court observed: “To peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out of power at the next general elections is not a prejudicial report at all. Such a public education is the primary need of every democracy.[25] These judgments were delivered at a time when "inconvenient" judges during the emergency were transferred from one State to another in India. Notwithstanding this, the High Courts rose to the occasion. Indeed it was their finest hour. In R. Rajagopal v. State of TN[26] the Supreme Court held that neither the government nor the officials who apprehend that they may be defamed, had the right to impose a prior restraint upon the publication of the autobiography of Auto Shankar, a convict serving sentence of death in jail, which was likely to reveal a nexus between criminals and high ups in the police. The Court held that “The remedy of public officials/public figures, if any, will arise only after the publication.

The Court has however accepted prior restraint in the case of exhibition of motion pictures because. it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture ... It, however, emphasised the necessity for a corrective machinery in the shape of an independent tribunal and also a reasonable time limit for the decision of the censoring authorities. In laying down certain guidelines for the censor, the Court was at pains to point out that the "standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom."[27]

Courts in India have ruled that in adjudging the question of proscription of articles in the press or banning the exhibition of a movie or programs in the TV channels, the standards to be employed must be of reasonable, strong-minded human beings and not those of weak and vacillating minds nor of those who scent danger or perceive hurt and insult in every critical point of view. It is not permissible to stifle all free expression of opinion by imagining lurking dangers in every corner and discovering sharp curves and hairpin bends when all that exists is a straight road. The correct test is: what impression the article or movie as a whole would produce upon a man of ordinary commonsense.[28]

 Indian Legislature has passed other legislations regarding the functioning of media:

  • The Press and Registration of Books Act, 1867This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses.
  • The Press (Objectionable Matters) Act, 1951-This enactment provides against the printing and publication of incitement to crime and other objectionable matters.
  • The Newspaper (Prices and Pages) Act, 1956-This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter.
  • Defence of India Act, 1962- This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom of the Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper.

·         Delivery of Books and Newspapers (Public Libraries) Act, 1954  According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.

·         The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service conditions for newspaper employees and journalists.

·         Civil Defence Act, 1968 - It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence.

·         Press Council Act, 1978 Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament.

Broadcast - the broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB,[29] the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country.

·         The Broadcasting Code - adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned.

·         Cable Television Networks (Regulation) Act, 1995 - basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier.

·         Direct-to-Home Broadcasting Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-to-Home TV service in Ku band in India.[30]


In keeping with its affirmation that freedom of expression is “one of the essential foundations of a [democratic] society”, the Court has clearly shown a preference for freedom of press. But this preference has many a times been a bane to our society; take for instance the 26/11 Mumbai Terror attack, Indian media failed to rise to the occasion, it was a tragedy that unfolded in Mumbai for 48 hrs but channels didn't appear somber and regulated.
Instead, they were over-excited and showing everything as if it was a 'live war reporting' though wars isn’t reported in this manner either. There were alerts, flashes, scrawls and breaking new for 50 hrs.
The aim was to grab eyeballs. Ads were not shown as the viewer could switch to other channel in the meantime. The news channels wanted highest TRP in this troubled times, so that they can later demand higher rates for advertisements and stay up on chart.

Worst was the conduct of the so-called celebrity reporters who wanted their cameramen to zoom on everything as they lay on the ground. A star reporter-cum-anchor spoke lying on the ground to create the impact that he was reporting from warzone.

Others were not sure how to be on the ground and either grotesquely prostrated themselves on laid down on their back or side. The same anchor was drunk when he first appeared in the first hour of the tragedy. In the end I would like to conclude that media has social responsibility on its shoulder and if such instances happen they should not go overboard just for the sake of gaining TRP’s.  They should be curbed from broadcasting each and everything they want to cover, either it should be done morally or a law should be made which should be followed strictly on media which should censor its activities. Take for instance in U.S. they don’t have laws for prior restraint on media but still during 9/11 attack they were not allowed to cover all the activities which happened, this shows that how socially responsible media should be. Thus prior restraint is a need of hour to some extent.

[1] John McEldowney, www.answers.com

[2] (1950) S.C.R. 594

[3] (1950) S.C.R, 605

[4] Corazon Aquino

[5]  Janis, M., Kay, R., and Bradley, A. (1995), European Human Rights Law, (Oxford: Clarendon Press) P.157.

[6] 283 U.S. 697 (1931)

[7] 427 U.S. 539 (1979) 

[8] 393 U.S. 175, 181 (1968)

[9] 372 U.S. 58, 70 (1963)

[10] 403 U.S. 713 (1971)

[11]  Regina v. Wang Yam, [2008] EWCA Crim. 269, United Kingdom Court of Appeal, Criminal Division, 28 January 2008

[12] London: BBC. 2008-11-20. Retrieved 2009-05-24.

[13] Article 19 (1) All citizens shall have the right - (a) to freedom of speech and expression.

[14] Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India, AIR 1958 SC 578; Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305; Bennett Coleman Co. v. Union of India, AIR 1973 SC 106 

[15] Article 19(2) - Nothing in sub-clause (1) shall affect the operation of any existing law, or prevent the State from   making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. 

[16] Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305

[17] Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 at 119; State of Madras v. G. Rao, AIR 1952 SC 196 at 199, 200; Tikaramji v. State of Uttar Pradesh, AIR 1956 SC 676 at 711; Express Newspapers, AIR 1958 SC 578 at 621; State of Bihar v. R.N. Mishra, AIR 1971 SC 1667 

[18] (1931) 283 US 697 

[19] Supra at 3

[20] Virendra Kumar v. State of Punjab, AIR 1957 SC 896 

[21] Ibid, at 903 

[22] Sorabjee, Soli J (1977), The Emergency Censorship and the Press in India 1975-77, Central News Agency (Pvt.)   Ltd. p.13 

[23] Ibid, at 31, 27, 29 

[24] (1976) 78 Bom. L.R. 125 at 169 

[25] C. Vaidya v. D'Penha in Sp. CA 141/1976, 22 March 1976 (unreported)

[26] 1994 (6) SCC 632 at 649 

[27] K.A. Abbas v. Union of India, AIR 1971 SC 481 at 489, 498 

[28] Bhagwati Charan v. Provincial Government, AIR 1947 Nag 1; Ramesh v. Union of India, 1988 (1) SCC 668 at 675; Binod Rao v. Masani, (1976) 78 Bom. L.R. 125 at 169 

[29] (1995) 2 SCC 161.

[30] The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the Government vide notification No. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications. 

20 February 2011
News and current affairs

It has been generally believed among different sections and groups of the society that legal education is only for the law students, lawyers etc. But have you ever thought that how important role can basic legal education play in our daily life. It is very necessary for every person to have certain knowledge of Law, otherwise it would become very difficult for him to tackle several problems, from consumer protection to fundamental rights. When a person hears the word " Legal Education", a picture which is framed in his mind of lawyer or a law student or court or similar to all these. We keep ourselves away from all these things, by convincing ourself saying that all these stuff is not our cup of tea. But, have you ever thought that this ideology sometimes become the problem when someone takes away your right, and you would not be in a position to stop him from doing so. Is is not because you do not know such person is taking away your rights, but because you do not know how to enforce and stop that person. Does  not it become necessary in these kinds of situations to have certain legal knowledge, so that you might be able to stop that person from violating your right. Moreover, even if you are aware of you Rights, have you ever thought of a person who is not aware of all this Would it take much time to stop a person from not violating rights of another person ? Would it take much time to tell a person where to go and how to enforce his rights? These are the questions which are to be resolved.

Why Basic Legal Education is Necessary ?

There are certain laws and regulation, basic knowledge of which is very necessary for a person, even if doesn't belong to a group which is related to legal field. If you don't belong to legal field, then have you ever thought " What would you do if someone stops you from going somewhere? ", " What would you do if someone stops you from entering a public place ? ", " What would you do if someone denies you an opportunity without any valid reason? ". If I am not wrong, Your answer would be " Yes, I have a right to do that thing, and the person who is stopping me from doing such an act is infringing my right".

But, the question is " Which Rights? ", " How to enforce it ?", "  Am I interested in enforcing those right ? ",  or " Even after knowing those rights I couldn't enforce it, because I do not know how to enforce it". Indeed, it is true that even after having the knowledge of infringement of Rights, usually a person would ignore it as he doesn't know the means to enforce it. And it encourages such persons, who are infringing the rights of several persons without any reason. Moreover, this is the reason why certain basic knowledge of legal education is necessary.  Our Constitution has provided certain Fundamental Rights for every citizen and certain Fundamental Rights for every person ( May not be a citizen ), but if you are not related to legal field, then are you aware of these fundamental rights? It would not be wrong to say that there are several person, who are not aware of their Fundamental Rights, and due to which they do not even become aware when their Fundamental Rights get violated without any cause.

Take an example of a person who is caught by a police constable in the street without any reason, and has been dragged by him to the Police Station. Generally, a normal person would only plead not to arrest him, because he has not done something which is wrong. This is due to the lack of certain legal knowledge, he is not aware of the fact that " No Police Constable/ officer can arrest him without a warrant ( except some serious issues ) ". Lack of knowledge is the main reason that certain rights of a person get violated so easily. It has been said that " Knowledge is the Power", and indeed it is not wrong. An educated person would be well aware of his rights which no one can take away from him, but what about those persons who do not have any such knowledge and are exploited easily ?

How to know whether Your Right has been Violated

The main reason why a normal person do not take the violation of his rights seriously, because he lives under a belief that he would have to pay certain amount to the concerned lawyer. Moreover, he is scared of the legal process and the judicial system of the Country. And, indeed he is not wrong. But there is another way which can be used by you to know how your rights can be protected from getting violated.

There are around 952 Law Universities/ Colleges in India, which have been recognized Bar Council Of India. There is a provision in these colleges to have a department of "Legal Aid Society/ Legal Aid Clinic ".  This is the place where you can go to. If you are in a state of doubt as to whether your Right has been violated or not, run to to this place in the law college near you , and they would provide you the information which you are seeking. There are various law colleges who are not actively participating in these activities, and if you go around and ask them the reason why your rights have been taken away by someone, they would also become active.

Moreover, a poor person who is not able to bear the expenses of the court proceeding and the lawyers can run around to the Legal Aid Officer who is available in every District at the District Court. They why to wait, is it not your responsibility to make a common man aware of his rights and how these rights can be saved.
It would be better if you could spread this word, not is a casual way but in a forceful way.

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16 February 2011
News and current affairs

IMPORTANT NOTE: The following satirical article is wholly fictional with no intent to refer to or offend anyone, any firm or any moot. Every insult/joke has its source in comments (not linked) or various posts (linked) on Jessup judging by Legally India. Again, any offense taken is regrettable, because no offense was meant. Okay, maybe a little. ;)


 “We did not lose because our research was bad. We lost because I did not wear my belt.” Said Mooter Mukherjee coldly.


 “Your belt?” said our confused local correspondent for Legally India’s Mooters’ Pastiche of Lies (MPL) category.


 “My belt. It is made from the skin of a cow found in a Buddhist graveyard at midnight. I  make my grandfather perform black magic on it, black magic is a cherished Bengali tradition, along with empty swearing and alcoholism. Anyway, this belt is my lucky moot belt.”


“Black magic?” said our correspondent in shock.


 “Of course. After all, I am from NUJS, how else will I win a moot. What are you, stupid? Everyone knows that NUJS wins moots with black magic and NLUJ has forgotten how to win moots. Nobody knows why Nalsar wins moots yet, but good conspiracy theories take time to create. Please give us some time.”


“What about NLU Delhi?”


 “It is obvious that NLUD is too young for anything but bottlefeeding competitions. They win by stealing the souls of NLS students.”


 “Stealing souls?” said our correspondent, bleakly.


 “Yes. They look like NLUD students, they sound like NLUD students, but if you cut them open, you will find the souls of NLS students furiously making memos inside the stomachs. Ask anyone from NLS, they all know this truth.”


 “And where are the bodies of these soulless NLS students?” said our correspondent, riveted.


 “What a stupid question. Walking around NLS as usual, of course. Nobody can tell the difference anyway. It’s a brilliant plan.”


 (In conversation with NLUD’s team, for a response to the NUJS team’s allegations)

 “Lies, utter lies!” spluttered Baby Punjabi, the NLU Delhi moot team’s first speaker.


 “Then how do you explain your win at the Perished C. Jurist Moot’s national rounds this year?”


 “The straightforward way of course. Just like everyone else. Great preparation.”


 “Involving what?”


 “Well I topped Geography at my school, so the revision was overall really easy, I just had to run quickly through the minor ports one last time. I almost got caught on the capital of Tajikistan at one point! The judges were very competent and we even exchanged a few witty jokes, heh heh heh” chuckled B. Punjabi in evident self-satisfaction.


 “I’m sorry, wasn’t the moot on International Law?” said our correspondent, dazed.


 “Yes, and one half of the phrase ‘international law’ is ‘international’! So one judge was a Geography teacher! So what! What, are you from one of those NLUs? Is it NLS? Are you jealous of us? Admit it, admit it!” screamed B. Punjabi in a froth of sudden anger, flailing  his arms and fists at our cowering correspondent.


 “Don’t worry, he is just hungry, he will be ok as soon as he gets hourly bottle-feed from our coach.” Said the NLUD researcher sympathetically.


 “His…. bottlefeed?” said our correspondent.


 “Yes, haven’t you heard. NLUD mooters have an anti-spoon policy. We prefer bottles.”


“Suck it, losers! We can eat you for breakfast!” shouted B. Punjabi incoherently, while being led away by security.


 “Yes, but only if you are mixed with milk, easily digestible and served in bottles.” added the researcher patting our correspondent’s shoulder soothingly.


 (in conversation with Mr. Bahana, partner of Bahana & Bahana, organizers of the national rounds of the Perished C. Jurist Moot)

 “Mr. Bahana do you wish to comment on having picked a geography teacher to be judge?”


 “Absolutely. We could not help it. My father is unavailable on Sundays since the Hindu’s special crossword comes out on Sundays. The geography teacher was merely a backup plan.”


 “What do you say to the allegations of the NLS speaker, that this teacher is incompetent to judge these national rounds?”


 “I say to him, what is the use of knowing all this international Treaty-Sheety if you don’t know all the state capitals in your own country. India is best, Jai Bharat Mata Ki. But I also feel sorry for him, he is under great pressure and also had terrible mooting luck” said Mr. Bahana displaying patriotic and sympathetic feelings (in that order).



 “Yes, I do not blame him; did you know Cuddalore is a minor and not major port? Fascinating, fascinating, we learn something new every year!” chuckled Mr Bahana ruffling our correspondent’s hair in a fatherly fashion.


 “Thank you for your comment. The MPL is vastly enriched by your assistance.”


 This exciting update was brought to you by MPL Live, your personal bullshit generator! On the hour, every hour!

Next week in MPL Live - Did ILS mooters perform Jedi Mind Tricks on the judges????!!!!!?!

The truth exposed! Tune in to find out,  only on MPL Live.

16 February 2011
News and current affairs

Salient Features of the Bill proposed by Aravinda Kejriwal, Kiran Bedi, Anna Hazare etc.
1. There shall be an institution of Lokpal with ten members and headed by a Chairperson.

2. That part of CBI which deals with cases of corruption, shall be merged with Lokpal.

3. CVC and the entire internal vigilance set in various central government departments will be merged with Lokpal.
4. Lokpal will be completely independent of the Government.

5. Lokpal shall have jurisdiction over bureaucrats, politicians and judges.

6. Lokpal shall have the powers to initiate investigations and prosecution without needing
permission from any other agency.

7. Public grievances are often linked to demands/expectations of bribery. Lokpal shall act as appellate authority and supervisory body for grievance redressal systems in all central
government departments.

8. Lokpal shall be responsible for providing protection against physical and professional
victimization to whistleblowers.

9. Members and Chairperson in Lokpal shall be selected through a transparent and participatory process.

10. The functioning of Lokpal shall be completely transparent to avoid it from becoming a hub of corruption.

11. Any complaint of wrongdoing against an official of Lokpal shall be investigated and acted upon within a month through a transparent enquiry process.

12. If charges are proved and conviction takes place, loss to the exchequer caused due to his
wrongdoing shall be recovered from all those who are convicted.

16 February 2011
News and current affairs


Yesterday I was very confused, 

I was worried as to which car should I buy,

Yesterday all were good to me,

I was not in a position to reject any car.


Yesterday I was traveling through the books,

I was determined to get the amount to buy a car,

Yesterday all persons were my friend,

I was eager to know about these cars from them,


Yesterday I got depressed,

I was not performing well.

To get the amount which I needed,

I was working hard day and night.


Yesterday I was wishing,

I could get any of these cars.

I was helpless and disappointed,

I used to respect other car owners.


I could not insult them,

Because I was eager to get,

One of those precious car,

Yesterday I was very confused.


Some car owners used to guide me,

I used to ask my doubts from them.

They  used to be my idols as they have already got a Car,

I always used to pray,

To get one of the cars like them


But today I have got my own Car,

Now I have become very possessive,

Today, I have come to know,

The features of my Car.


Today I have come to know,

the history of my car.

Today I think I was a fool,

That I used to consider other cars Good.


Today My Car has become the best,

It has got the best average than other cars.

Today I would fight with others,

Who are not a part of My Car.


How can their Car be better,

I will explain other car owners.

The feats which my car has achieved,

I love my Car a lot.


Today I would Explain,

Why my Car couldn't perform well,

I will explain others that,

It was due to the Fault of the Mechanic.


Today I will tell others, 

To wait for My Car to Start.

Once it gets started,

It would would give the best average.


Today I will explain others,

That see my Car can also perform well.

My Car had some defect,

Which has been rectified Now.


Today I do not want other to think,

That my Car has got some problem.

I know My Car is the Best,

It would remain the Best.


Note - 'Car' refers to a Law College and 'Amount' refers to the rank in entrance exam ( Not necessarily CLAT )



15 February 2011
News and current affairs

Rape is defined as a forced sex with a woman without her consent under by a man under section 375 of Indian Penal Code. Forcefully doesn't only mean that it should be physical, it can be mental also. This law was codified in the year 1860, when it was a belief among the society that a man cannot be raped. Moreover, it was also a belief not only in India but also in England that only a man can commit this offence against the women. But, what if a person forces a man to have sexual intercourse without his will, what should the definition of this offence. It cannot said to be rape, because if we are including male category under the category of victims under the definition of Rape, then we are changing the law itself and it is the job of parliament, not ours.

Forced Sex with a Man 

Lord Macaulay didn't miss the chance to include section 377 which prohibits unnatural offence and under that category, if a man have sexual intercourse with another man would be charged under this section but again Lord Macaulay missed to define as to what would be the offence if a man who becomes a victim of forced sex by another man. The recent decision of Delhi High Court legalizes Gay sex but even though it is not clear as to what punishment would a person would get if he forcefully indulges in a sexual activity with a man. You might be wandering as to how can a male be raped, but statistics shows that in the year 1997, 342 men were raped in UK. Now, it would not be possible to ignore that a male cannot be raped. If it is possible to legalize homosexuality, then it must be possible to have a provision against Male rape ( Don't go on the terms 'Male Rape, it has been used for the convenience ). This crime was recognized in UK only in the year 1994. Before that it would not have been possible to recognize this crime.

Problems of Male Rape Victims 

It has been came to light from the study conducted on the " Crime Against Man " that it is very hard for a man who has been a victim of sexual violence with dignity in the society. On one hand, our society provides sympathy to female victims of this crime, but on the other hand no such sympathy is available to male victims. It has been found that there are quite a large of man who tried to kill themselves after these incidents. Moreover, a man who has been sexually molested since his childhood is not able to develop confidence in himself and again it becomes very hard for him to live in the society with dignity. We talk about right to equality but is this law actually been applied among all persons. It would not be wrong to say that our law favours women as it has been framed keeping in mind the patriarchal notion of the society, where crime are committed against women.

It has also been shown in a study that victim of male sexual violence are not able to maintain their further relationship with anyone. They try to keep themselves isolated from the fear of getting humiliated. These victims sometimes suffer from a mental disorder throughout their life. It is justifiable to leave these persons who have become a victim of sexual violence alone, because law doesn't favour them. Don't they have any right to live with dignity as other persons do. The law should include a provision which provides relief to such man who have become victim of sexual violence so that it would be easier for them not only to get justice but also to use the medical facilities.

Sexual Violence against Male and India

As stated above, there is no provision under Indian law which could provide relief to man who has become a victim of sexual violence. The Indian Penal Code was drafted when the general view of the society was of patriarchy but as the time has passed, the notion of patriarchy has been challenged from time to time. The concept of patriarchy believes in the heterosexual relationships but this notion has been challenged by Naz Foundation before Delhi High Court and indeed they have become successful in this attempt. Then, why it is not possible to have a provision in India which would provide relief to the victims of male sexual violence. Well, it is not possible for a common man to do that, it should be considered by our law makers.

Our Indian Constitution provided Right to Equality, Right to Life and Personal Liberty which includes Right to Live with dignity, then why it is not possible for a victim of male sexual violence to live with dignity in the society. It would not be correct to say that, males do not become victims of sexual violence in Indian. Indeed, they become and frequently but these incidents do not get reported as other news which keeps these incidents buried. Moreover, these victims hide these incidents from the fear of getting humiliated in the society. They have certain questions in mind " What would society think? that a man has been raped ", and they are not wrong in this regard. Until and unless a step similar to that which has been taken by Naz Foundation takes place, it would not be possible for victims of male sexual violence to get justice.

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11 February 2011
News and current affairs

Representation of women in politics has become a very important issue in the recent scenario. It has been argued by several supporters and feminist that there is an urgent need for representation of women in politics. Whether it can be implemented through quota or any other means is altogether a different issue, but what is more important to realize whether there has been a lack of representation of women in politics? The active participation of women in politics can be seen from a long time even before independence eg. Annie Besant,  Sucheta Kriplani, Aruna Asif Ali etc. Although the facts would show that their representation has not been so good and because of this reason, in recent scenario a strong demand has been for their representation through the means of reservation so that it can be assured that a minimum number of women remain present at the place which is considered to be the ruling body of the country. Indian society had been a patriarchal society since its inception where the role of  women was considered to keep themselves in the home i.e. cooking food, taking care of children. In other words, they were indulged in the household work and usually they could not raise their voice even if they want to do so. But as the time passes the situation has also been changed, and the role of women has not remained confined to household work. Instead, they are now present in almost each and every place which were once considered only for men. The laws have also been changed to provide them security and equality at workplace. It can be seen that the ideology of the society which once used to consider women to remain inside their house has now changed and their new role at several places has been appreciated without any opposition. 

But the representation of women in the politics or in other words assemblies has not been changed to a great extent. It can be concluded from the statistics which are present, there were only 23 women in the 1st Lok Sabha and 59 women in the 15th Lok Sabha out of 545 seats which are present in it. The number has increased but in comparison to the total number of seats, number of women present are only around 10 %. Indeed, the decision of government to introduce 108th Amendment Bill to the Indian Constitution which would provide 33% percent reservation for women in Lok Sabha and State assemblies is very matured. It would ensure that certain number of women would be present in these assemblies, which would make the cause of women more strong. There are many women political figures which are known for their contribution to the politics eg. Indira Gandi, Menka Gandhi etc. Moreover, the present head of the ruling UPA government is also as women i.e. Sonia Gandhi. But by introducing the bill, government has ensured that  in politics, there would be sufficient representation of women. Although, government had to face strong opposition from many political leader and in fact these leader tried their best to prevent this bill from getting passed. Soon after the introduction of bill, there was huge blissfulness among several sections of society, specifically women section. They had a sense of relief that now is has been ensured by the government that women would not remain in a position of negligence anymore.


But another and very important question indeed is which women would get representation after this amendment? Would they be those women who have been taking part in politics traditionally, those who are from a strong political background or those women who are indeed the true representative of women? These are the question which has to be answered by us. It is indeed a very good step by providing representation to women , but it would remain in vain until and unless those women who actually understands the problems of the women show their active interest in politics. Politics has turned out to be profession for many people, and generation by generation they are following the same practice of politics accompanied by crime, corruption etc. There is a high probability that even after this amendment, those women would take benefit of this who are already from a political background or they would stand for a seat which was previously won by their husband, father-in-law etc. It doesn't mean that those women who are already indulged in politics do not care of the deprived section of women, but after the amendment it has become more important for other women to take part in politics otherwise no productive result could be achieved. It is a well established notion that ' A poor can only understand the needs of other poor ". In the same way, it would be better for a women who belongs to the deprived section to understand the actual needs of other women of her section. It is not possible to understand the needs of such section by travelling in helicopters, AC cars, conference with the official in five star hotels. If it would be handled in this manner, then those who are representing themselves as the leader of women would not be able to understand their needs. Needs varies from section to section and it is very obvious that a women who belongs to upper class or the section which is not deprived would understand the problems of women from viewpoint of her section as she has been observing needs of this section since her birth, and it would be quite hard to imagine that she would be able to think much beyond that.


It is the duty not only of the women who belong to the deprived sections to get themselves involved in politics but also the responsibility of other sections to encourage them to do this. They are actually scared from entering into politics, considering it a dirty stuff and they have accepted this notion that whosoever gets elected, the problems would not be solved. Government should also help these women to make themselves political active through various means. Until and unless, women society itself realizes that for their interest, it is necessary to make themselves involved in politics, it would not be possible to address their problem which have been faced by them for a long period of time. They should utilize this opportunity


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10 February 2011
News and current affairs

Thousands of talented students in India from various places appear in the exam of Civil Services so that they would be able to serve country by getting themselves selected in this exam. Civil Services Exam is considered to be the toughest exam and there are only a few talented persons who clear this prestigious exam. But the incident which has happened in the city of Lucknow has raised many questions. A top police official was caught while cleaning the shoes of the Uttar Pradesh Chief Minister, Ms. Mayawati.

DSP Padam Singh has created a storm in the political arena of the country by this act. It has not only questioned the image of police in the state of Uttar Pradesh but it has also given a chance to opposition parties to take advantage of this incident. The image of state of UP is well know for the statues and parks which have been established by Ms. Mayawati ( Many statues are of Mayawati only :P ). She is well known for her Dalit cause which she has been following since she has joined politics.

But incident like this creates a bad image not only of the police but also of the government which is in power. Police officials are meant to protect the people from any danger which they might get into. Today, a person fears to go to the police station in fear of getting himself into trouble, and in fact it has become a reality in the many parts of the country. Instead of that, they try their best to solve the problems among themselves but that was not purpose for which this department was created.

This kind of incidents only deteriorates the image of officials in the society, but it would be hard to imagine whether it would be possible to stop it in near future. 

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10 February 2011
News and current affairs

After spending 12 years of life in a school, everyone has a sense of excitement about the life which would be important in many aspects from choice of career to the mature environment, where there would be no school friends, no study without tension etc. In other words, the period which one would be travelling across would be a period more of seriousness. The new life would be waiting for you with new experiences which you would get throughout that period. The life which I am talking about is the college life which everyone has dreamt of, but would it be necessary that this life which you are dreaming would be better than the life which you were living in for a long period of time. This article basically reflects the life of a student who leaves his house for high education.
Even before entering into this life, you would have to come across certain instances which would sometimes make you feel sad. You would see the emotions of your mother while leaving you in the hostel because it would be very hard for to leave you in a world which is very new to you, and the feeling that how would you manage to live in such a environment. You would remember the food which you used to get at home with the love hidden inside it. Sometimes, it becomes you will cry when you would feel alone. Sometimes, you would think why have you decided to leave your home and studying whatsoever course you would be pursuing at a far place from your home. This is the general feeling which arises when a student enters into a college leaving his home ( Please ignore he/she reference, that is not because of gender bias  lol :P) where he has been grown up since his birth. It might not be true in some cases, but generally a person would come across the same condition at this stage of life. The excitement which one has is sometimes accompanied with the fear of a new place, new people, new lifestyle. Moreover, a fear of being ragged by the seniors keeps a person in a situation of fear, because of some obvious questions i.e., " Would I be able to handle the situation ", " How would I be ragged by the seniors " , " How would be roommate ( in case of double-occupancy room) ? " and certain other questions which cannot be answered before one experience. Instead, the scene of a college life has been represented in various movies such as Munna Bhai and Three idiots. These are the basic questions which keeps haunting ones mind in the period between intermediate and admission into the college. Parents keep on making the list of known person who are present at the city where their lovable child is going to study and to inform them to take care of their child, again with an exchange of some obvious dialogs, " Ab to aap hi hain yaha par ", " dekhte rahega isko, pheli baar akela chod kar jaa rahe hain ". If you have not gone through this stage yet then you would see in case you would be joining a college which is not in you city, and if you have gone through this stage then you must have realized what has been discussed.
But soon the things would change not because you have changed but because you have entered into a new phase of life which is no more new to you and slowly you have also become a part of this phase. But, agaiin you would have to go through the instances sometimes exciting, sometimes tough, sometimes funny. Now you are no more in a school life with your old friends, you have got new friends who were once stranger to you, have become one of the most important part of you life. Now the things which were keeping you in a stage of fear have become a thing of past. Now you have entered into that phase of your life where you would be more focused towards your goal again with certain questions in your life i.e. " What I want to do in my life " , " Why am I studying this ", " Would I be able to achieve my goal ". But you will always miss the period which you have once spent in your schooling, always keep remembering how tensionless that life was without any kind of tension surrounding your mind. But it is also true that the kind of enjoyment which you would have in this period would very unique to you for your whole life. You would realize that life is not easy unless and until you work hard for achieving something and realizing that it is you who has to face this and no one else would be in a situation to help you. There would be instances of embarrassment, sometimes a feeling of restlessness but this all have to be tackled with care. It is possible to make this period as good as you were dreaming but for that you will need to be careful and focused. Sometimes, you would feel that you have become free that you can do whatever you want to do, and because of this factor of freedom you develop in yourself a sense of responsibility which you might not have developed throughout your life. 
Pressure of project submission, attendance shortage would become very common for you. But, this is also the period which can be utilized in a good way to make it productive. In college, you would get to know different people coming from different places, having different culture and sometimes you might feel that it would have been better if you had joined a institution nearby your place where have you come from. There might be a possibility that you would fall in love with someone or you might have found a person which you were waiting for a long period. It is possible that you might get involved in your romance life so deeply that the world around you would be vanished, and trust me this has to be dealt with a lot of care. But, at the end of this period you would realize that you have gone through that phase of life which was filled with joy, pressure, excitement, love, emotions, experiences etc. Those who have already gone through this phase of life would be well aware of these things and those who have not would experience it. Even, I am one of those persons who is going through this phase and trust me it has provided a lot of experience is such a short period. 

08 February 2011
News and current affairs

It has been declared by Supreme Court that it would start testing the constitutional validity of section 377 of Indian Penal Code from April 19, 2011. The petition is filed against the decision of Delhi high court legalizing section 377 declaring it as a violative of article 14, 15 and 21 of the Indian Constitution. Section 377 provides provision for the penal against those persons who indulge in the activities of unnatural offences. Going back to the period when Indian Penal Code was drafted by Lord Macaulay in the year 1860, the persons having sex with other persons of same sex were to be punished on the charge of unnatural offence which includes other offences for eg. sodomy. After Independence, the main reason gay sex ( herein, it homosexual relation would be referred as gay sex ) was criticized because they were considered to be a high risk section who can be affected by HIV. But over a period of time, it has been analyzed that gay sex is not the only group which is categorized under high risk group affected by HIV, there are other groups also which are categorized under this category. 
The petitioner in the Delhi High Court, Naz Foundation has been working for the rights of LGBT ( Lesbian, Gay, Bisexual, Trans-gender) . It contended in front of the court that under the cover of section 377, HIV prevention efforts were found to be severely discriminatory by the state. Moreover, this section section is used as a weapon for police abuse, hence violating the fundamental rights which have been granted to them. They. Moreover, they argued that by criminalizing gay, the right to privacy of these citizens have been violated. In fact, they are right in contending that and favouring homsexuals because the section under IPC which was enacted by Lord Macaulay is a clear discrimination against the homosexual groups. Under Indian law, two adults who are indulging in sexual intercourse with consent is legal. Then the section which is present in the IPC is a clear violative of this law and this law should be applied uniformly irrespective of the sexual behaviour. 
Terming it as 'unnatural' seems very absurd because this practice of having sex with the person of same gender has been in the society for centuries. Even in Manusmriti, homosexual behaviour has been provided but it was considered as a minor offence unlike today until the decision was given by the court. Sex is a desire which is aroused inside human towards another person and it is not necessary that the person towards whom the desire has been aroused must be of same sex. By saying them criminals, we are taking away their fundamental rights from them, and it is unjust. These groups are considered as a part of the queer community who are against the very practical notion of the patriarchal society which gives acceptance only to the heterosexual behaviour. They hide their identity from the society because they are not willing to accept it for long period of time and from the fear of getting charged with section 377. But the decision of Delhi High Court has provided this groups a sense of freedom i.e. now they can also mover freely without any fear. In other words, it is a step towards a society which would accept the homosexual behaviour without any discrimination and it is indeed a very good step. 
Soon after the decision of the Delhi High Court, cities like Delhi, Mumbai, Calcutta , Bangalore has become the center for the Gay night life and certain days were specifically nights in the clubs are for LGBT groups. This can be seen as a change in the society from the period when it was not at all accepted, Homosexuals are getting extensive support from many sections of the society. 'Bombay Dost', the first Indian Gay magazine was relaunched by Celina Jaitley. The recent developments are a good sign for the homosexuals and after the decision, they have started revealing their identities a couples which is indeed a very good step. Contention of Naz foundation that this group will remain vulnerable to HIV until and unless this section is removed from the Indian Penal Code holds true, because when Homosexuality is legalized it would be easier for them to access the medical faculties without any fear of showing their identity.
It would be very crucial moment when Supreme Court would decide whether the decision taken by the Delhi High Court is valid or not. We have to wait till then too see the take of Supreme Court on section 377 of Indian Penal Code.

08 February 2011
News and current affairs

The recent news regarding the pron MMS scandal of two JNU students who used to stay at the Co-Ed hostel has left the prestigious institution in shock. A High Resolution video was made while they were making love in the hostel. It has been a great setback on the reputation of the University who has been known for its quality.Well, it has been argued by youth of this country that we are free to do what we want as we have crossed the age of 18 and no one has any kind of right to stop us from doing that. The matter here is not only of the scandal but also of the Co-Ed hostels which are present in various institutions throughout the country. 
It is very hard for someone to think of staying in Co-Ed in Indian Society not because they are not permitted to do so but because it is not yet accepted by the society. And when this kind of scams happens, it gives a chance to the persons who are already against it to protest against the validity of these hostels. It has been the mindset of the society that Co-Ed hostel are morally wrong as it would increase the cases of sex in these hostels. If you are a well aware person, they you can not deny this fact. The point is on what basis are these hostels been created ? It is very nice to be liberal but it doesn't been one can do the activities which considered to be morally wrong. Now, one can argue that morally wrong has no relation with the rights which one person has got after attaining the age of 18. Yes, in fact he is correct by saying that but it everything which is legal not necessarily be accepted by the society. 
Parents think a lot before sending their child to study at a far place. They are afraid of the wrong activities in which their child could get into, and this kind of news would make them more worried. Sex is not the matter in this case, because it is the personal choice of the individuals after attaining the age of 18 because most of you might be thinking of this article being against that. But that is not the case, it is their personal choice and persons above 18 years are considered to be matured enough for taking that decision, although it has also been criticized by the society. But what is the point I want to argue is that what is the need of these kind of hostels ? Don't college have enough space for constructing hostels. That can not be an excuse and these hostels should be avoided, although it is not possible to ban them because it would again be against certain rights. Rights must be accompanied by the responsibility. 
There was a similar issue to this which was made legally by the Bombay High Court i.e. Live-in Relationship, where two persons stay as a couple without being legally married to each other. And I think everyone must be aware as to how this decision was criticized by several persons and although, it has been made legal but the society has not accepted it and it would be hard for them to accept it in near future also. 
Everyone can have his viewpoint over this matter and it would be great if you can express it here.