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Kerala HC Declares Marital Rape as a Ground for Divorce

by Guest Author 08/12/2024

written by Guest Author

Mehreen Mander

Last week, a Division Bench of the Kerala High Court in Mat. Appeal No. 151 of 2015 held that marital rape is a good ground to claim divorce. The Bench comprising Justice Muhamed Mustaque and Justice Kauser Edappagath dismissed a set of appeals filed by the husband challenging the decision of the Family Court, recognizing that “a husband’s licentious disposition disregarding the autonomy of the wife is marital rape” which amounts as physical and mental cruelty. The appeals were preferred by the husband seeking against a judgment of the Family court granting a divorce on grounds of cruelty. The husband’s petition seeking restitution of conjugal rights had also been dismissed.

Facts

The facts of the case were as follows: The appellant-husband upon failure of a business started subjecting the wife to constant harassment demanding money from her family, and on various occasions the father of the wife has given him approximately 77 lakhs. Further, the respondent had been subjected to physical harassment and sexual perversion. The appellant husband has committed forceful sex on numerous occasions – when she was sick and bedridden, when his mother expired and even in front of their daughter. She had also been subjected to unnatural sex against her will. Further, the husband was in an illicit relationship with the caretaker of the apartment. The family court had granted divorce on grounds of mental and physical cruelty.

Observations of the Court

The Division Bench while rendering its judgment observed that “sex in married life must reflect the intimacy of the spouse”, and in the present case, the sexual perversions the respondent was subject to was in disregard of her wishes and feelings. Further, the Division Bench observed that marital rape is premised on the patriarchal notion of the husband that the wife of the body owes to him. Such a notion, has no place in a modern social jurisprudence which insists on treating the spouses in marriage as equal partners.

The court recognized that “marital privacy” is connected to individual autonomy and any intrusion into this space would diminish this privacy. That a violation of bodily integrity is a violation of individual autonomy, which is protected as a fundamental right. Thus, the court recognized that “treating wife’s body as something owing to husband and committing sexual act against her will” is marital rape which is to be construed as an invasion of marital privacy. The Bench acknowledged that while marital rape is not criminalized in the Indian penal jurisprudence, that by itself does not deter the court from recognizing it as a ground for divorce. Marital rape essentially constitutes physical and mental cruelty, which is a ground for divorce under section 13(1)(i-a) of Hindu Marriage Act,1955 and Section 27 (1) (d) of Special Marriage Act, 1954.

Thus, the appeal was dismissed.

The Position of Law on Marital Rape

The Indian state is one among only 36 countries that refuse to bring marital rape under the purview of penal consequences. Section 375 of the Indian Penal Code, 1860 that defines rape categorically excludes instances of sexual intercourse by a husband with his wife who is aged above 15 years. The age of consent was later raised to eighteen years by the Criminal Amendment Act of 2013. The Supreme Court in Independent Thought v. Union of India also held that a girl child below 18 years of age was incapable of giving consent for sexual intercourse. The courts have however refrained from getting into the question of illegality of marital rape. This implies that adult wives can still be legally raped by their husbands under the current penal law in India.

The Justice Verma Committee set up in the aftermath of the 2012 Nirbhaya case recommended criminalization of marital rape. In 2017, a parliamentary panel set up to consider the Committee’s recommendations observed that criminalizing marital rape would bring the entire family system under great stress. Thus, it has refused to remove the exception in Section 375 which allows the husband to legally rape his major wife. The government has repeatedly insisted the sacrosanct nature of the institution of marriage to justify the exception.

It is pertinent to juxtapose such conceptions of marriage against cases where rapists are asked to marry rape survivors. Recently, while hearing a case against Mohit Subhash Chavan, a public servant who was accused to repeatedly raping a minor girl was asked by former Chief Justice of India SA Bobde if he intended to marry her. This is not an isolated instance. Rapists often marry the survivors to escape penal consequences under the persuasion of village elders or relatives. Judges too are persuaded by the arguments of stigma and honor. In some cases, rapists have deserted the survivor after marriage.

The apex court in judgments like Lillu Rajesh and others v State of Haryana has observed that a women’s supreme honor is “her dignity, honour, reputation and chastity.” That this supreme honor is defiled and degraded by the act of rape and thus renders the victim helpless and unmarriageable, is repeated in many judgments such as Deepak Gulati v. State of Haryana. Courts routinely advise marriage between the rapist and the survivor as a compromise – to save the woman from the resultant stigma and social rejection, and the man from punishment, especially in those cases where the victim has become pregnant.

Conclusion

It is very telling about the Indian jurisprudence that considers marital rape is essential to preserve the sanctity of the institution of marriage on one hand, and makes the rape survivor marry her rapist on the other. The jurisprudence at some level recognizes that a woman must suffer the worst form of degradation and harassment as a part of the regular course of marriage. The cost of preserving the institution of marriage must be the woman’s autonomy, and such cost must be paid by what the court itself recognizes as the worst form of defiling of her “supreme honour.” The only way to contradict this inference is to consider the married woman as the chattel of her husband, which is an understanding grossly violative of the fundamental right of equality.

In light of this, the Kerala High Court judgment becomes important. It recognizes autonomy as a part of privacy which is a fundamental right, and extends it to the private sphere of marriage and household which state has often refused to do. It in fact goes a step further in acknowledging the legal heteronomy and paternalism in the family and divorce laws of the country. Recognising marital rape as grounds for divorce opens the door for many women who suffered without recourse so far.

08/12/2024 0 comments 24 views

An Oriental and Gender Perspective on Realisation and Creation of Property

by Guest Author 08/12/2024

written by Guest Author

AUTHOR: Sayan Dasgupta

Any theoretical formulation or analysis of property must at the outset be noted as to what can be a theory of property, and what it entails to advance a philosophical discussion in the domain. Theories of property suffers from what is generally known as observer’s effect prevalent in the social sciences and general usage, which entails that the phenomenon, in this case a theory being studied is affected by the act of observing itself. In the lexicon of property, to answer the question of what property is, a series of “why” questions are of paramount. The question of “what is property” is intricately linked with answers of “why is property a meaningful institution” and “why do we have property”.

The legal theories of property as a meaningful institution to sustain or which has sustained lies in distinction between explanatory and justificatory accounts. The explanatory account in all proportions tends to deepen ones understanding about the institution; a justificatory account provides a defend or legitimising directive. Both of the accounts can provide a normative understanding taking norms into consideration such as empirical and statistical accuracy, historical context, presuppositions and axiomatics. However, most of the theories of property are mere explanations for the institution of property and fails to provide a defence and legitimise it. Ergo, an addition of justification to the allocation of the material resources and assets provides more nuance and stability to a theory to stand on its own legs because of the fact that property is a normative institution.

Theories of Property

A foray into precepts of the theories is pertinent to make a determination of the relevant theory and developing on it. The six mostly eminently deliberated theory are:

The Natural Law Theory
The Labour Theory
Metaphysical Theory
Historical Theory
Psychological Theory
Sociological Theory

The Natural law Theory lays down the principle that anyone who possesses the object is thereby the owner of the property viz. an ownerless thing attains the status just by being possessed by someone.

The Labour Theory also known as the Positive Theory provides that any person who has put in effort, skills and labour to produce an object become the owner of that particular object by virtue of the labour.

Metaphysical Theory propounded by Kant justified property observing that a person is rightfully the owner of the object when he is emotionally connected to the object to the extent that it would cause his distress and adversely affect him if someone uses the object without his consent.

The Historical Theory produces a caricature of growth and development of property in stages. Firstly, every human being has a natural tendency to take things into possession and it is exercised independent of the law of the state. Second stage provides juristic possession viz. possession in law and in fact. Thirdly, ownership would then be recognized by law providing owner of the property with exclusive right and control.

Psychological Theory deliberates that human has a pre-existing tendency to acquire, own and control things. Bentham supported that property is a conception of mind which lights an expectation to own and control things and use them to the fullest advantage.

Failure of Theories of Property

The theories of property propounded in the Western philosophical society can be divided into t wo categories. Firstly, the notion that property is pre-social i.e., a natural right which is preceding to state and law which is propounded by Grotius, Pufendorf, Locke, Immanuel Kant, and Hegel; secondly, the notion on the contrary is property as social, a positive right which is existing by virtue of the state or law or community to secure other goals which has emanated from thoughts of Hobbes, Hume, Adam Smith, Bentham, Durkheim and Marx. These collectively form the set of Instrumental and Expressive set of theories of property. However almost every theory houses the Aristotelian concepts conceptualizing human flourishing and principles of free will; both of which are flawed in several ways. The theories lack a deontological approach and centre around human desires and needs.

The precepts of libertarian free will at the outset must be delineated. The libertarian free will asserts that “human consciousness is not predetermined and that we are in complete control of our actions” and in a given situation, one could have done otherwise. The concepts of free will are an illusion notwithstanding the feelings or emotions. This is to illustrate that external factor that we are mostly unaware of, and over which we have no conscious control at least in part, determine our consciousness which in turn determines our decisions.

In 1999, the celebrated master of lateral thinking, Edward De Bono, was asked by the British Foreign Office to come up with a solution to Arab-Israel conflict in Middle East. His reply to this was to send them jars of marmite. In short, he reasoned that since the average person living in the affected geographic region has a zinc deficiency, and the lack thereof causes people to become irritable and belligerent, endless supply of zinc-rich marmite would tone down the situation. This logic is sound and scientifically backed. This indicates that part of our consciousness is predetermined; not the whole. This illustration has compelled several thinkers to hypothesize that our consciousness might be entirely determined by external factors and that despite the fact that human mind is conscious, it is “no more free than the wind”.

Therefore, this in part destabilizes the Natural Law Theory, the Labour Theory, the Historical Theory and the Psychological Theory. Mirabeau has observed that theories cannot be only in realm of philosophical deductions, but needs to be relevant in the day-to-day experience and life style. Drawing inspiration from the theories formerly discussed, I would propose a theory separate from the stated theories with an undertone of Hindu scriptures related to gender and society.

Oriental and Gender Proposition

Hindu mythology is probably the only ‘theological’ ideology which focuses on and tries to reveal that gender and patriarchy is a social construct and has been invented. Mahabharat draws attention to a time when there was no concept of marriage and men and women were free to mate with anyone of choosing until it became relevant to establish fatherhood which by its virtue became linked to fidelity of women. Determination of fatherhood became important since property became important and for the purposes of inheritance. Hinduism provides a detailed illustration as to how humans craved immorality and this delusion supported the idea of property and inheritance of the name and wealth which would provide a virtual image of survival of the clan/family. These traces and paints a vivid structure of how patriarchy was invented in the society.

Property was not pre-social. Humans had been nomadic for several years before settling down. Property came into existence when people wanted to come together to form a society and wanted a life of stability. This required adaptation of several modes of survival including means of sustenance. Man started using the resources around him to form a certain produce. Eventually, the resource consumption grew and accumulated which led to rise of duties and obligations for the one producing and everyone else. The one producing incurs a duty that he would not use that property to harm anyone else and would use it to his satisfaction. On the other hand, it became the duty of everyone else to not interfere in his enjoyment of the produce. This further enhance the concept of “mine and thine” and marked a territory. This subsequently enhanced when interdependency between people increased on different objects of sustenance ergo giving rise to concepts of possession and ownership of things.

Hence, private property is a construction as a result of survival and product of experiment rather than conscious effort or pre-existing tendencies. An object comes into existence when there is a requirement of that certain object.

Sir Henry Maine also provided for a similar authority observing “property once belonged, not to individuals nor even to isolated families, but to larger societies, composed on the patriarchal model”. This provides an insight that the resources had been collectively owned at one point of time from which there was a deviation as a response to external stimuli. For instance, patent application generally includes documents like description of invention, inter alia drawings or other illustrative material providing reference of invention or patent claim which materialises the conception of how the object is going to be used and accounts for the history of production of ‘object’ (giving importance to labour, skills and originality). Thus, providing importance to external stimuli, the proposed theory finds context in modern society and property.

The notion of property has trickled down to identification of permanence, gender and unity of the family/clan. And it exists now for the exchange of goods, contractual considerations and self-satisfaction. Hierarchy of society plays an important part in driving a person to acquire more property and becomes a never-ending loop of consumption.

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

08/12/2024 1 comment 31 views

Gender Implications of Pre-Nuptial Agreements

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

The sporadic distribution of persons, identity, culture, language has always been a part of the Indic civilization. This heterogeneity implied a myriad of personal laws; both codified and uncodified. Where such diversity is engrained in the social fabric of India, such diversity could also mean plurality of gendered injustices. Delhi High Court on this note grappled and encouraged the Centre to act on the idea of Uniform Civil Code such that it doesn’t “remain a mere hope”. However, the Courts’ activism is not recent. Kerala HC in Agnes Alias Kunjumol v. Regeena Thomas also highlighted the need for such a legislation for subsistence of marital institution.

The tapestry of Bharat and its consonance with debate of UCC is a stuck gramophone. Where one camp argues for uniformity and homogeneity of personal laws, another camp argues that it would bludgeon religious freedom. However, a fruitful discourse is impossible without a substance of the legislation or a bill to test the veracity of either of those camps. Notwithstanding that, what can be subjected to a litmus test is the Goan Uniform Civil Code which has been lauded by the former Chief Justice of India. The Portuguese Civil Code, 1867 has several peculiarities, gross gendered inequalities, and notions of cis-gendered male heteronormative superiority. To no extent can it be called uniform or civil. Nonetheless, a particular peculiarity that catches attention which is invisible in the Indian jurisprudence of personal laws finds home in the Goan UCC- pre-nuptial agreements.

Pre-nuptial agreements or “Ante-nuptial Conventions” as provided in Section V of the Code are agreements entered into by spouses to stipulate their assets for the purposes of protecting their wealth from the ‘economically inferior’ spouse. The general matrimonial sphere of India finds such agreements as void but may lend an evidentiary status. The Goan UCC contrarily finds such agreements valid as long as they are not in contravention with the Code and are recorded by way of a public deed (Article 1097 of the Code). The ensemble attempts to displace the state law with the contractual terms agreed upon in the event of divorce or dissolution by the death of a spouse. This practice is commonplace in the western legal system. In lieu of such an agreement, there is an obvious waiver of protections ordained by the state laws or customary practices.

The concept of pre-nuptial agreements is not alien to India. One of the first cases recording such a reality was the case of Hamidunnessa Biwi v. Zohiruddin Sheikh, (1890) and Tekait Mon Mohini Jemadai v. Basant Kumar Singh, (1901) where the Courts held agreements were invalid on grounds of public policy. However, there is a contrarian position held in cases like Nawab Khwaja Md. Khan v. Nawab Husaini Begam, (1910) where the Court found such agreements as valid and good in law. Section 40 of the Divorce Act, 1869 which governs the dissolution of Christian marriages requires the Court to look into the existence of any such pre-nuptial agreements. In any case, such validity of the agreement was not accorded to Hindu marriages where marriage isn’t viewed as a contractual relationship, but rather a sacrament. Supreme Court on several occasions has observed that “public policy” does not have an ascertainable form but rather, changes with the change in time. At this juncture, it becomes pertinent if the lens of public policy should change concerning pre-nuptial or post-nuptial agreements.

In the Indian matrimonial context, apart from the predilections of religion, customs, kinship, dowry, and class, the wealth distribution or the wealth gap always favours the man in the relationship putting the female counterpart in the ‘economically inferior’ and precarious position. More often than not, such economic vulnerability of the female counterpart is due to the lack of autonomy in matrimonial relations tinted with patriarchal notions of ‘bread-winners’ and ‘homemakers’ apart from the obvious lack of choices in making life decisions before or after marriage. Institutions of religion or customs do not seem to offer much reprieve either. Kerala HC set such a precedent in Ranjith P.C. v. Asha Nair where it was set that it is reasonable to expect household work and chores from a daughter-in-law.

Given this context parallel to societal import for the importance of marriage, women would always be, evidently, at a more vulnerable position. Since most pre-nuptial agreements are for wealth and asset protection in event of dissolution, they would always be in favour of the ‘economically superior’ spouse. Conventionally, that would be at the expense of the woman. It would always be the husband at a dominant position, given the interpretation to the husband’s position in the family unit; regardless of the financial situation to set the terms of the agreement and forgo the protection of laws and customs set in place. This adversely impacts the social and economic well-being of the woman in the relationship and contributes to financial vulnerability. Furthermore, it would also amplify the magnitude of the unequal distribution on the vectors of gender.

This sense of entitlement can be harkened back to the labour theory of value of Karl Marx. The doctrine simplistically argues that what is created by the labour of the person is to be owned by them due to the input of labour power. This was Marx’s blue-collar notion of work which now cannot be considered sound. What is pertinent herein is the feminist and the moral critique of the proposition which questions the narrow view of what is considered labour, power, and productivity. To analyse this, a divorce case of 1986 in New York can be taken into consideration. A man, who was pursuing his medical studies gets married to a woman in an arranged setting. As a commonly expected practice, the wife was expected to stay at home and take care of the household. While the wife carried out such duties, the husband was able to finish his education and build a successful practice of 14 years. Events occurred which resulted in a divorce. The husband argued that he does not owe anything to his wife considering his practice was built on independent labour power and participation in the market. The Court disagreeing held that the wife contributed value to his practice and thus, had ownership interests in his practice given her participation. The wife’s work was embedded in the successful medical practice. Thusly, she was awarded 40% interest in the medical practice as a divorce settlement.

Devaluation of a woman’s work in the household and entitlement of a man in the family over assets is the oldest, most sexist story of humankind. It is a story sewn so deep into the Indian social fabric that it seems and appears normal. It is the living embodiment of compelled subservience. In a marriage, especially in an Indian context, women are the minority in wealth holding, raising the balance of convenience in favour of men to negotiate and disenfranchise their spouses. Where superficially, it may seem like a move of empowerment, the ground reality screams a different story of exploitation. Sabina Martins, a women’s rights activist observed that “…women across religions being thrown out of their marital homes within months of marriage”. Adjunctively, the waiver of an equitable division of property, or “communion of assets” i.e., equal distribution of property leaves the woman at the mercy of her husband. The Government was recently considering the incorporation of such pre-nuptial agreements into personal laws for women empowerment. Whether such prerogative is right has been answered by the arguments abovementioned. The Courts, as the sole arbiter of truth, with the knowledge of historical injustices and jurisprudence must always consider gender as a variable, especially in the domain of marriage. A supposed reflection that such agreements could offer an ounce of equality is not sufficient cause for reconsideration of “public policy”. The terms of any premarital agreement will always echo the superior bargaining power and resources of the prospective husband.

08/12/2024 0 comments 25 views

Marital Rape: A Social and Legal Paradox

by Guest Author 08/12/2024

written by Guest Author

By Vandana Bharti

Despite 75 years of independence, the social status of women in India still stands in shadows. Grievous crimes and alarming rates of pending cases portray the loopholes in the legal machinery of the Indian legal system. One such appalling act is that of Rape – where the dignity and self-respect of a woman is bruised beyond contemplation. When such an act occurs behind four-walls in a matrimonial home, it is known as Marital Rape. Where the spouse engages with his/her better half in a forceful, non-consensual sex it is termed as Marital Rape.

A legally sanctioned contract between a man and a woman forms marriage. In India, the legality of sexual intercourse between a man and a woman gives the husband leverage to consider the consent of his wife perpetual in the course of marriage.

Indian Legislation On The Offence Of Rape:

Section 375 of the Indian Penal Code (IPC) states – A man has committed rape if he had sexual intercourse with a woman against her will, without her consent, with her consent but by putting her in danger or threatening her, with her consent whom she believes that she was lawfully wedded to, with her consent but the consent was given in an unconscious state, and with her consent when she is under 15 years of age. Nowhere does this specify the essential elements and the repercussions of committing marital rape.

As per Indian Penal Code, husband can be convicted on grounds of marital rape only when:

The wife is 15 years of age or below; and is punishable by imprisonment for up to 2 years or fine, or both.
When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
Rape of wife of above 15 years in age is not punishable.

Precedents In the Law

In the Harvinder Kaur v. Harmandar Singh case (AIR 1984 Delhi 66 ), the Delhi High Court stated that the interference of the Constitution in household matters would destroy the marriage.

The court stated, “In the privacy of the home and the married life neither Article 21 [No person shall be deprived of his life or personal liberty except according to a procedure established by law] nor Article 14 [The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India] have any place.”

In 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ Shashi Tharoor, Member of Parliament in the Lok Sabha, said, “‘Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent.”

Naval Rahul Shiralkar, Advocate at High Court of Bombay Judicature at Nagpur, said, “Courts have various methods to identify marital rape and have given strict punishments but due to the lack of a law against a crime like that, the judiciary is bound to not admit ‘forceful intercourse by a man upon his wife’ as marital rape.”

Shiralkar said that many of the marital rape cases went unreported in India. He added, “There are at least 5-6 cases reported every year in Nagpur Family Court which are pending litigation.”

Saranya S. Hegde, President of the Mahila Dakshata Samiti, Bangalore, said that husbands often thought that they could do everything with their wives because society and marital laws supported that. “The helpless and dependent suffer in silence.”

Hegde said, “If a woman goes to a [family] court, the judge often favours the husband and asks the wife to adjust.” In her more than 15 years of experience, Hegde said she had seen women committing suicide due to the mental torture they went through because of marital rapes and domestic violence.

Kamlesh Premi, Counsellor at home at the Centre for Social Research, said the court procedures took almost five or seven years. Having been a counsellor for more than 20 years, Premi said that the judiciary system was too lengthy.

First, the woman has to complain to the Crime against Women Cell and get counselled. Then if she wants, she has to file an FIR (First Information Report) under Section 498 (A) (Husband or relative of husband of a woman subjecting her to cruelty) of the IPC, which in itself is quite a lengthy procedure. And at the end, even after an investment of at least five years and financial resources, the court would either ask her to adjust or maybe get her a divorce with maintenance. Hence, a lot of women compromise or either go for mutual divorce. “Therefore, there is a lot of under-reportage for marital rapes,” she added.

“It is in rare cases that a wife asks for a divorce or maintenance,” Premi said. “The biggest problem is that the husbands treat wives as private property. They think they own her.”

Dr. Ratna Purwar, a gynaecologist in Lucknow, said women often complain about the presence of vaginal or anal wounds in such severity that could substantiate rape. She added that, when men are asked to abstain from forceful sex with their spouse, the most common answer is, “Why did I marry her then?”

The financial dependency of women becomes a prime reason for all the physical and verbal abuse endurance. It had become normal despite the mental health depletion and trauma. Marriages in India have the concept of ‘implicit consent’ to sex and women sadly or happily comply and do not report it.

In the Anuja Kapur vs Union of India Through Secretary case of 2019 (W.P. (C) – 258/2017) , a PIL was filed asking the Delhi High Court to make guidelines and laws on marital rape. The court replied that drafting of the laws was the work of the legislature and not the judiciary. “The court is more concerned with the interpretation of the law rather than the drafting of laws.”

In the Nimeshbhai Bharat Bhai Desai vs. State of Gujrat case of 2018 (2018 SCC OnLine Guj 732), the Gujarat High Court admitted that marital rape was not just a concept and the notion of ‘implied consent’ in marriage should be dropped. The law must protect bodily autonomy of every woman (married or unmarried).

However, in Independent Thought vs Union of India on October 11, 2017, the Supreme Court stated that sexual intercourse with a girl, below 18 years of age, was rape regardless of her marital status.

Supreme Court of India, in the case of Independent Thought v. Union of India (2017) 10 SCC 800, read down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of Indian Constitution.

In 2017, the Daily reported a 2014 study by International Centre for Research on Women and United Nations Population Fund on 9,500 respondents in seven states of India. The report concluded that 17% of women received spousal violence while 31% (one in three) men admitted to committing sexual violence against their wives.

In 2016, Maneka Gandhi, then minister for child and women development, said that the ‘concept of marital rape’ that was understood internationally could not be applied to India considering the levels of illiteracy and poverty.

In 2016, the U.N. Committee on Elimination of Discrimination Against Women recommended that marital rape be criminalized in India. After that recommendation, a question was raised in the upper house of Parliament asking what action had been taken. Haribhai Parathibhai Chaudhary, then minister of state for home, replied, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.” This response was repeated literally by Minister Gandhi in the Parliament.

In the year 2015, the RIT Foundation filed a Public Interest Litigation in the Delhi High Court challenging the exemption of marital rape in Section 375 of the IPC. The challenge is on the basis of Article 14, Article 15 (a fundamental right prohibits discrimination by the state against any citizen on grounds ‘only’ of religion, caste, race, sex, and place of birth), Article 19 (freedom of speech which is the right to express one’s opinion freely without any fear through oral/ written/ electronic/ broadcasting/ press), and Article 21 of the Indian constitution.

Justice Verma Committee report (2013) recommended the discarding of the exception of marital rape. Providentially, in November 2017 a division bench of the

The Law Commission of India in its 172nd Report considered the issue of marital rape, but chose to ignore the voices that demanded the deletion of Exception 2 to s. 375 IPC on the ground that “it may lead to excessive interference with marital relationship” and may destroy the institution of marriage.

In the 42^nd report by the Law Commission, it was proposed that criminal liability be attached to the intercourse of a spouse with his/her minor husband/wife. But the committee banished the recommendation stating that the sexual intercourse between a man and a woman can never impose criminal liability on the husband as sex is the parcel in a marriage.

The Supreme Court, while deciding the issue of marital rape of girls below the age of 18 years, made certain observations and comments that are equally applicable and relevant to married women over 18 years of age.

One of the foremost issues is that of the right to bodily integrity and reproductive rights. While referring to various precedents, the Court found that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as under Article 21 of the Constitution. This right, in effect, would include a woman’s right to refuse participation in sexual activity.

The Supreme Court also noted views expressed by the Justice (Retd.) JS Verma Committee, where reference was made to a decision of the European Commission of Human Rights which concluded that a rapist remains a “rapist regardless of his relationship with the victim”.

According to the 2015-16 National Family Health Survey (NFHS-4), 31% of married women have experienced violence – physical or sexual. The NFHS reported that about 4% of women were forced to have sexual intercourse when they did not want to, 2.1% to perform sexual acts they did not want to, and 3% were threatened to perform sexual acts they did not want to.

In 2015, two separate pleas were submitted to the Supreme Court asking for the law to be amended by deleting the marital rape exception. In the first, the petitioner, a 28-year-old, had already filed charges against her husband for domestic violence (a civil, not criminal offense) as well as “cruelty.” She used her maiden name, Reema Gaur, to shield her identity.

She wanted to bring him to justice for repeatedly raping her. “The law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his own lawfully wedded wife,” the plea stated.

Appearing on TV, heavily veiled, wearing spectacles that magnified her eyes, Gaur talked about her marriage. “Every night post the wedding was a nightmare for me. … He would never even ask my permission,” she said. “He used to beat me up, insert artificial [objects] in me. At some point I was in such a condition I was not even able to walk,” she said, her voice breaking with tears. On the night she decided to leave, she said, “He hit me 18 times on my head with a box and a torchlight. And then he inserted the torchlight in my vagina.“

Bleeding and in a semiconscious state, she called her mother for rescue. The bleeding lasted for two months. In the year she was married, when Gaur tried to talk to her in-laws and her parents, “The only thing they told me is, ‘Try to adjust.’ “

In 2014, Akash Gupta of the Rice Institute, a non-profit organisation reported, that the number of spousal violence received by the wives was 40 times more than that received by non-intimate partners.

Deepika Narayan Bharadwaj, a film maker and activist believe the state does not have the potency to support women if they are to seek divorce on grounds of marital rape. “It’s naive to say women have complete right of consent and rights over their body, when the truth is they’re dependent on their husbands for everything, financially, emotionally,” says Bhardwaj.

Trisha Shetty, founder of She Says, a website for information and action on sexual crimes against women argues that protection from Marital Rape is not a western issue that needs solving rather it is a basic human right. People in India are of the opinion that sexual abuse and marital rape only happens to the poor, the fallacy needs to be broken. “That whole assumption that you’re making laws for people who don’t understand is nonsense. Everyone understands the concept of consent, of saying, ‘No.’” says Trisha.

She Says and several NGOs, including Jagori (which in Hindi means “awaken, women!”), have organized workshops and other programs to help women speak out about the sexual abuse and rape. Online, there are additional resources, such as this Marathi language effort to educate about consent via two folk dancers having a musical discussion about the meaning of “yes” and “no.” The government has even set up an emergency hotline, staffed by women, to field calls from women who need police assistance as well as resources and instruction about their rights. In their first year, they received more than 600,000 calls from women, some describing assault and rape within their marriage.

Judicial Stand

In Bhodhisathwa Gautam v Subhra Chakraborthy (1996 AIR 922) it was held that marital rape is violative of Article 21; Right to live with human dignity. Supreme Court held that Rape is a crime against basic human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take away these rights.

In Justice K.S Puttaswamy v Union of India (2017) 10 SCC 1 , it was held that the right to privacy as a fundamental right includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.

Uncovering the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress v Haree Mythee, (1891) ILR 18 Cal 49 observed that in case of married women, the law of rape does not apply between a couple after the age of the wife over 15 years of age, even if the wife is over the age of 15, the husband has no right to disdain her physical safety.

In Emperor v Shahu Mehrab (1911) ILR 38 Cal 96 the husband was convicted under Section 304A IPC for causing the death of his child-wife by rash or negligent act of sexual intercourse with her.

In State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207, Supreme Court referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse. It is wistful to know that all sexual offences committed by a non-intimate or a stranger have been penalised and all females except wives have been granted their right over their bodies.

In Sree Kumar v Pearly Karun, 1999 (2) ALT Cri 77 High Court observed that because the wife is living under the same roof with that of her husband, with no decree of separation, even if she is subjected to consensual or non-consensual sexual intercourse, the offence under Section 376A of IPC will not be imposed.

The idea of spousal rape is fictious to the Indian Judiciary, despite the mental and physical trauma of the survivor.

International Statistics

Marital Rape has been declared illegal and a criminal offence in 18 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R changed the law to an extent that the courts ruled that even within a marriage, any non-consensual sexual activity is rape.

What can be done?

To help the victim surf the trauma, shelters can be provided as a temporary safe place to stay and the staff may help in the consideration of options available, legal aid services to offer free of cost legal services and advice, support groups to help the victim voice the upheaval. Articulate support for the enforcement of apt laws and for new legislation to curb sexual violence, education programmes and support initiatives at local, state and national level.

Conclusion:

The incessant exemption of marital rape from the ambit of criminal law succours the idea of wife being the property of the husband exclusively. Changing the laws on sexual offences needs to be tactful especially in a country like India where there is an existence of diverse and conglomerate personal and religious laws that might clash with the new amendments in the statutory criminal law. The immediate need of prohibiting and criminalizing marital rape is just not enough. Sensitization of judiciary and police along with educating the myriad believers of the airy concept of marital rape is required in order to acknowledge that the concept of spousal rape; getting raped by one’s spouse is not trivial, and definitely cannot go unpunished.

08/12/2024 0 comments 27 views

Dereliction Of The ‘Other Gender’: Deprivation Of Minor Male Sexual Assault Victims By The ‘Skin-Touch’ Doctrine

by Guest Author 08/12/2024

written by Guest Author

By Sayan Dasgupta

COVID-19 has been a fertile spawning field of sexual violence. Where some Courts have been deontological and acknowledging of this phenomenon, certain judgments act as a means of disenfranchisement of sexual violence victims. Bombay High Court in a recent judgment, in Satish v. State of Maharashtra has rendered an absurd interpretation of Protection of Children from Sexual Offences Act, 2012 [POCSO]. The accused was charged with Section 8 of POCSO read with Section 354 of Indian Penal Code along with Sections 342 and 363, for sexually assaulting a minor girl. The Bench acquitted the accused of sexual assault under POCSO while upholding conviction under the sexual assault charges under IPC on the rationale that there was lack of sexual intention on the part of accused to sexually assault the minor since there “was no direct physical contact, i.e., skin to skin” touch.

This verdict caused a huge uproar in the civil society and the legal fraternity alike causing the Supreme Court to stay the acquittal of the accused on the charge of Section 8 of POCSO. The judgment has rendered that mere groping would not amount to sexual assault under Section 7 of POCSO. Such an abhorrent interpretation prima facie trivializes not only sexual assault of female minors, but disproportionately excludes male minors from seeking justice.

The minor male victims of sexual abuse constitute a large majority in India. The Bench elucidated that mere groping over the clothes of the minor would not amount to sexual assault under Section 7 and 8 of POCSO. POCSO is inherently a gender-neutral legislation providing reprieve to minors of all genders. Section 7 provides that “whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The words “penis, anus” annotate protection to the male victims from sexual assault. However, the case establishing the ‘skin-touch’ doctrine has significantly narrowed the scope of application of the provision.

Adoption of this exclusionary doctrine would impact both female and male victims adversely, however, where the female victim could resort to relevant provisions of IPC, the male victim is left remediless. The provisions of sexual crimes under IPC are highly gendered protecting only the woman or the girl child disenfranchising the male victims of sexual violence. Furthermore, the doctrine places the onus of proof on the prosecution per contra to POCSO. Section 29 of POCSO reverses the burden of proof and presumes the offence has been committed or abetted by the accused. If the view purported by the Bombay High Court is considered, and if the prosecution fails to satisfy the onus, the female victim can have a recourse to relevant provisions of IPC, whereas on the contrary, the male victim cannot.

The ‘skin-touch’ doctrine categorically contradicts the Model Guidelines issued by Ministry of Women and Child Development under Section 39 of POCSO which provides that “almost every known form of sexual abuse against children as punishable”. Furthermore, the Delhi High Court in Rakesh v. State without even delving into the detail of disrobing of the victim dismissed the appeal holding that mere groping of the private parts of the victim with sexual intent amounts to sexual assault under Section 7 of POCSO. Conflicting this accurate interpretation, the heavy onus placed on the victim results in narrow application. Whereupon the female victims have an alternative remedy, the abusers of the male victim are left scot-free on committing the atrocity leaving a permanent scar on the well-being of the child survivor. Ergo, mere groping would amount to sexual assault of the female victim under Section 354 of IPC but would not be sexual assault of male victim, either under POCSO or IPC. The provisions governing sexual crimes in IPC are gynocentric and neither the legislative or the judiciary have displayed any intention to take affirmative step on making the sexual offences gender neutral, despite there being categorical recommendation by the 172^nd Law Commission Report and the Justice Verma Committee Report to make rape and other sexual offences gender neutral.

This inspires little to no confidence on the state functionaries with regard to gender justice. The ‘skin-touch’ doctrine creates a very real and alienating affect of male survivors wherein, groping over clothes would not amount to sexual assault. The lack of gender-neutral sexual offence laws and such interpretation is a clear dereliction of the male survivors.

08/12/2024 0 comments 27 views

THE SUPREME COURT OF INDIA NEEDS MORE WOMEN JUDGES

by Guest Author 08/12/2024

written by Guest Author

Lokendra Malik, Advocate, Supreme Court of India

The Supreme Court of India has a sanctioned strength of 34 judges including the Chief Justice of India but currently, it has only one woman judge Justice Indira Banerjee. As of now, the Supreme Court has five vacancies of judges and a few more judges will be retired by the end of this year. Surprisingly, in seventy years of existence, only eight women judges have graced the bench of the Supreme Court of India. This is not good news from the gender justice point of view as half of our population is not getting reasonable representation in the apex judicial tribunal of the country. More women judges should be appointed at all levels in the judiciary. Justice Fathima Beevi was the first woman judge of the Supreme Court of India who was appointed in 1989. The second woman judge of the Supreme Court was Justice Sujata V. Manohar who was appointed in 1994. The third woman judge of the Supreme Court, Justice Ruma Pal came in the year 2000. After her retirement, it was Justice Gyan Sudha Mishra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice Bhanumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee came to the Supreme Court in 2018. All these judges have made a wonderful contribution to the Indian judicial system by delivering hundreds of judgments.
Many legal scholars, lawyers, and sociologists have rightly expressed their concerns about the invisible representation of women in the higher judiciary particularly the Supreme Court of India. It is widely believed that India needs more women judges in the constitutional courts. But unfortunately, no effective steps seem to have been taken by the judge-makers to remove this gender gap until now. For this lapse, both the government and the judiciary are responsible. Both of them have failed to promote gender equality in the judiciary. Before 1993, it was the Union Executive that had a very powerful say in judicial appointments but it ignored the representation of women on the top bench. In the Supreme Court, the first woman judge was appointed in 1989. After 1993, the Supreme Court collegium is the actual judge-maker in the country. Sadly, even the Supreme Court collegium has also ignored the women in judicial appointments in the Supreme Court and High Courts. The collegium should not miss a great opportunity to bring more women judges in the constitutional courts that could provide them timely chances to lead the Supreme Court of India one day. The male-dominated Supreme Court collegium is expected to have a more liberal and generous approach in terms of making judicial appointments of women in the higher judiciary. Unfortunately, India could not have a woman Chief Justice even after seven decades of the Supreme Court’s establishment. The judge-makers should think about this issue seriously. It all depends on their willpower and commitment to the cause of women’s empowerment in the judicial branch that holds a very significant position in our constitutional scheme.

Some sitting judges of the Supreme Court have also raised their concerns about the inadequate representation of women in the Supreme Court on a few occasions. A few weeks ago, while speaking on the occasion of a farewell ceremony organized by the Supreme Court Young Lawyers Forum on March 13 to honour Justice Indu Malhotra, Supreme Court judge Dr. D. Y. Chandrachud said about this issue: “Justice Malhotra’s retirement means that the Supreme Court now has only one female judge on the bench. As an institution, I find that this is a deeply worrying fact and must promptly receive serious introspection”. Further he went on to say that “as an institution whose decision shape and impact lives of everyday Indian, we must do better. We must ensure the diversity of our country find reflection in making up of our court. Intrinsically having a more diverse judiciary is an end, a goal in itself and worth pursuing in its own sake. Instrumentally, having a more diverse judiciary, ensured diversity of perspectives is fairly considered, instils high degree of public confidence.” Justice Chandrachud’s remarks deserve serious consideration by judge-makers. The Supreme Court collegium should consider it from a larger perspective that could ensure a fair representation of women on the bench of the top court. It will be in the collective interests of the judiciary if the collegium takes care of diversity on the bench which is a must to ensure justice to the people.

Notably, the Supreme Court collegium led by Chief Justice Bobde could not recommend even a single appointment to the Supreme Court due to the lack of consensus among the members of the collegium. The collegium led by him also faced some other issues like geographical and seniority considerations in choosing judges for the top court. This is not the first time that the Supreme Court collegium faced this kind of situation in selecting judges. Even in the past, the collegium has such challenges and made selections by relaxing the seniority norms. There are precedents where judges have been elevated to the top court by ignoring the seniority norms and High Court representations. The judgments of the Supreme Court particularly its 1999 ruling also allow the departure from seniority norms in judicial appointments. There is no hard and fast rule of seniority that prohibits the collegium from elevating junior judges to the Supreme Court. Some brilliant women judges of the High Courts may be considered for the Supreme Court judgeship by relaxing the seniority norms so that they could get an opportunity to lead the Supreme Court in the future. This can be an extraordinary relaxation to ensure gender balance on the bench of the top court. The sky will not fall if the collegium relaxes the seniority constraints to appoint brilliant women lawyers and judges to the top court. In addition to this, some brilliant women legal academics and lawyers may also be considered for the judgeship in the Supreme Court. A few lawyers were directly elevated to the Apex Court during the last few years. The Supreme Court has many brilliant lawyers who can be considered for the judgeship in the top court. A gender balance in the higher judiciary is the need of the hour. The collegium led by the new CJI Ramana may consider all these issues.

Unfortunately, no law professor has ever been appointed as a judge in the Supreme Court despite the availability of constitutional provisions to this effect under Article 124(3)(c) from the category of ‘distinguished jurist’. Has not the time come when the Supreme Court collegium should activate this dormant constitutional provision? India has many brilliant professors who have made a wonderful contribution to the legal system and they truly deserve this honour. A renowned legal academic can be appointed as a judge in the Supreme Court to include the legal academia in the judicial adjudication process? This was the dream of our great founding fathers who were inspired by some foreign jurisdictions that had appointed eminent law professors as judges in their top courts. Professor Felix Frankfurter of Harvard Law School was directly elevated to the U.S. Supreme Court. The Supreme Court collegium has all opportunities to diversify the bench of the apex court to make the judiciary more inclusive. It should not delay this noble work more. Needless to say, the collegium is the real judge-maker in the current constitutional practice and the central government is bound to implement its recommendations. It has all powers to diversify the Indian judiciary. Now after the judgment of the Supreme Court in the case of M/S P.L.R. Projects Ltd. v. Mahanadi Coalfields Ltd., the Central Government cannot delay judicial appointments as the Court has rightly fixed a timeline for the government to clear appointment of judges within a prescribed time. The collegium may consider ensuring gender justice to the women in the country given the national commitment to the cause of women’s empowerment in the judiciary.

The Supreme Court decides many important issues relating to women which can be properly adjudicated only by the women judges. Not only this, but the presence of women judges in the Supreme Court also enhances the faith of the womanhood in the supreme judicial tribunal lays down the law of the land. The new Chief Justice of India N. V. Ramana may convince his colleagues to give more representation to the women in the higher judiciary by adopting a more liberal approach. If possible, the new CJI may also include a woman judge in the decision-making process of the Supreme Court collegium. The Supreme Court of India has always stood for the cause of women’s empowerment. It should encourage the women lawyers and judges to come forward to join the apex court. The top court should have at least 5-6 women judges from different communities and parts of the country. Many brilliant women lawyers and judges are available in the Supreme Court and the High Courts who can make a great contribution if timely opportunities are given to them. Some of them may also become the Chief Justice of India one day. There is a severe shortage of women in the Supreme Court and High Courts also. This is the time when the Supreme Court collegium should give adequate representation to the women in the higher judiciary.

08/12/2024 0 comments 34 views

RUTH BADER GINSBURG – THANK YOU

by Guest Author 08/12/2024

written by Guest Author

By Kanishta Naithani

‘As long as I can do the job full steam, I will be here.’

When we talk about women and their careers, there is this glass ceiling that most people like to mention. They say it is difficult for women to break the glass ceiling. Justice RBG has proved that nothing, absolutely nothing can hold women back.

Justice Ruth Bader Ginsberg is a judge in the Supreme Court of the United States. She is 87 years old and refuses to retire. On 10th August 2020, she’ll complete 27 years of service. Throughout her career, she has been a voice against gender-based discrimination.

She has shattered the glass ceiling and with it the stereotype that women aren’t meant to work. Justice Ruth Bader Ginsburg has now become not only a legal luminary but a pop culture icon. In pop culture, she is referred to as RBG. Her fan base keeps widening – she has penned seven books, she is the inspiration for five books, a Hollywood movie and a Netflix documentary is also based on her.

She has swayed the hearts of millions by her wit, charm and undying spirit.

Education

Justice RBG graduated top of her class at Cornell University in 1954. During her time at Cornell she met Martin D. Ginsburg, they cultivated a connection so substantial that in they got married the same year she graduated. After her graduation, she had to put her education and career on hold to start a family when her daughter Jane C. Ginsburg was born in 1955. She re-joined law school after two years when Martin D. Ginsburg returned from his military service. This time both Martin D. Ginsburg and her enrolled at Harvard Law. At Harvard, Justice RBG was the first women to serve on the editorial staff of Harvard Law Review. She was also one of only eight women in a class of five hundred.

It so happened that Martin D. Ginsburg was diagnosed with testicular cancer. So, for that period she had to not only care for her infant daughter but for her ailing husband too. Once her husband recovered, he accepted a job with a law firm in New York City. Consequently, she transferred to Columbia law school, to complete her education, she served on the law review even in Columbia. She graduated in 1959 tying for first place.

Thriving In The Face Of Adversity

For anyone with such remarkable credentials, it would be easy to get hired for their dream job, yet Justice RBG had to face immense backlash when it came to putting her legal education to good use. This was primarily due to the gender stereotype that has held women back for centuries. She was unable to find a job for herself until a professor stepped up for her and refused to recommend any other graduates. Consequently, she was hired by U.S. District Judge Edmund L. Palmieri as a clerk. She clerked there for two years. Then she received job offers from a few law firms, but all of the offers were for a lower salary than that of her male peers. This led her to refuse all the offers. Instead, she chose to live abroad to work on a research project for a book on the Swedish Civil Procedure Practices by the Columbia Project on International Civil Procedure.

After returning to the United States Justice RBG in 1963 accepted a position as professor Rutgers University Law School, then in 1972, she left that post to join Columbia where she became the first female professor at Columbia to earn tenure.

Her Crusade For Equality

In her time as a lawyer Justice RBG has extensively argued against gender-based discrimination. She is and has been not only a leading voice for justice for women but also for justice for men who were discriminated against based on gender. She faced gender-based discrimination from the very beginning of her career, she understood that the conversation regarding gender-based discrimination is not limited to women. Women aren’t the only victims of gender-based discrimination. Men also suffer from gender-based discrimination.

Justice RBG in the landmark case of Moritz v. Commissioner (469 F.2d 466 (1972)) represented Charles Moritz. Moritz claimed a tax deduction for the salary of a caregiver he had hired to care for his mother. His claim was rejected by the IRS because he had never married and was not a woman, this made him ineligible for the caregiver deduction. Justice RBG, along with her husband argued that Moritz would have been permitted the deduction if he was female and that there was no judicious reason for the distinction in treatment among people in this case. They contended, the refusal of the deduction by establishing gender-based discrimination and unlawful dismissal of equivalent protection in case of infringement of the Fourteenth Amendment to the United States Constitution.

In the famous case of Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) Stephen Wiesenfeld was a widower his wife was the primary bread-winner of the family. Social security contributions were normally deducted from her pay. In 1972, she kicked the bucket during childbirth, which left him with the fathering of their infant child. He applied for social security assistance for himself and his child and was informed that his child could get them but that he was ineligible for the same. The Social Security Act gave benefits dependent on the profit of an expired spouse and father that are accessible to both the children and the widow. The advantages of an expired spouse and mother, be that as it may, are just accessible to the children. Justice RBG made the contention that the Social Security Act differentiated against Wiesenfeld by not furnishing him with alike survivors’ advantages as it would to a widow. Further, she contended that Wiesenfeld’s wife’s contributions to Social Security were not regarded on an equivalent premise to salaried men, so Wiesenfeld’s wife was additionally being discriminated.

In both of the cases, she emerged victorious and changed the course of history.

Becoming Justice Ruth Bader Ginsberg

In 1980 she was appointed to the U.S. Court of Appeals for the District of Columbia by Jimmy Carter the 39th President of the United States. It was in 1993 that Bill Clinton the 42nd President of the United States appointed her to the Supreme Court. On August 10, 1993, she became the second woman and the first Jewish woman to serve on the Supreme court.

I Dissent

Justice RBG is infamous for her liberal dissents. Unlike most United States Supreme Court Justices Justice RBG prefers reading her dissents from the bench this happens when the court is announcing its decision. In a discussion at the Aspen Institute, she states that “I want to announce a dissent from the bench if I think the court not only got it wrong but egregiously wrong and sometimes those DISSENTS are addressed to congress…….if the court is interpreting a statute…….then congress can fix it, but if the court is making a ruling on a constitutional matter congress can’t fix it, only an amendment to the constitution and we have a constitution powerfully hard to amend or the court has to change its mind but there has been a tradition in the United States of DISSENTS becoming the law of the land that we can go back….you are writing for a future age (dissents) and you hope that with time the court will see it the way you do.”

Inspiring, Igniting, Inspiriting And Influencing

The world that we live in today has changed so much in terms of technology, governments, climate and globalization. Yet, one thing remains the same the struggle of women to make it on their own. Women have to try their damnedest to find their place in the world, to make their voice heard. For years women have starved for female role models. Justice RBG is the very embodiment of what women can achieve given.

The most spectacular aspect of her life is her undying spirit. In all the adversities she has faced Justice RBG has not given up once not ever, and today – She is a pop culture icon. She is a feminist icon. She is an inspiration to girls everywhere. Most people would be hesitant to admit that women face more adversities in the workplace as compared to men. Justice RBG proves that no matter how many adversities you face you make the best of it and you thrive. Or simply put when life gives you lemons, make lemonade. A lot of women and young girls give up on their dreams because of such adversities. Ladies, if Justice RBG can you can.

Justice RBG with her dissents inspires not only women and young girls out everyone out there to speak up, even if the majority is against you. Her dissents teach us that the power of voicing our opinions and thoughts. The fear of the majority should not and cannot stop you from voicing your opinion. So, the next time you witness injustice, stand up and say I dissent! Because Justice RBG would want you to.

Many feminist movements have inspired women to go out and get whatever they want. Justice RBG has proved it. She managed to have a family, care for her husband, change the course of history, and become the most celebrated Supreme Court Justice of the United States. She did it all in a day’s work with the utmost grace.

They say women can’t have it all? Well, looks like they can.

08/12/2024 0 comments 26 views

Why Denial Of Bail To The Jamia Pregnant Student Is Not Justified?

by Shikhar Gupta 08/12/2024

written by Shikhar Gupta

By Shikhar Gupta

A Delhi court recently denied bail for the third time to a Jamia Milia Islamia University’s pregnant student, who has been in custody for past 2 months. 27-year-old M. Phil student Safoora Zargar, who was the media coordinator of the Jamia Coordination Committee, is carrying a child and is in the second trimester of her pregnancy. On April 10, more than a month after the violence broke out in Delhi, she was arrested by Delhi Police in connection with the Jafrabad road-block case (FIR 48/2020). Three days later, she was presented before a Magistrate where she was granted bail. On the same day, her name was added to FIR 59/2020. This led to her arrest again and thereby continued her imprisonment. It is noteworthy that FIR 59/2020 was initially registered under the Indian Penal Code provisions dealing with, inter alia, rioting with deadly weapons and unlawful assembly. However, once the case was transferred to the Special Cell, various other charges such as attempt to murder, sedition, and promoting enmity among different communities were added. Finally, on April 21, provisions of the draconian Unlawful Activities (Prevention) Act, 1967 (UAPA) were also added to the FIR.

The Denial of bail to Safoora came not only as a surprise but was also a quite unfortunate incident as it goes against the established jurisprudence of Bail which ensures not to let a person suffer till the time the final verdict comes. Apex court in multiple cases has reiterated that Bail and not Jail is the rule and bail is supposed to be the norm and pre-trial incarceration the exception. The courts are supposed to take a more humanitarian approach towards the accused especially in such matters, where accused is a woman and carrying a child, the responsibility of court increases. The Gujrat High Court established a legal precedent in its 2016 judgment when it granted bail to a woman accused of Abetment of Suicide because she was 5-months pregnant. Judges presiding the case said that the women and her child need ‘full facilities’ during pregnancy. However, it is a clear injustice to Safoora and her child that they won’t be getting those facilities which they deserve.

The Center for Human Rights at the American Bar Association (ABA) released a report on the continued detention of Safoora Zargar and stated that Zargar’s detention is not in compliance with the international treaties to which India is a state party and violates the international human rights.

Another factor which makes the denial of bail to Safoora even more surprising is the fact that this comes at a time when the whole world is living under the threat of novel coronavirus and judiciary has set up panels to consider the release of prisoners on parole to protect them from the spread of Coronavirus. In fact, heinous crime offender like Manu Sharma (Convicted for Murder of Jessica Lal) is released even after the fact that he violated the parole rules during his release in 2017. Another accused in the same 2020 Delhi Riots, Manish Sirohi (who was arrested for possession of arms and is facing trial under the Arms act) was released on parole due to the Covid-19 pandemic.

Consider the case of these two people arrested in the aftermath of the 2020 Delhi riots. One is a pregnant woman, a student with no prior involvement in any criminal activity. She is taken into custody six weeks after the violence had ended. No arms and ammunition were recovered from her at the time of the arrest. The other is a man who the police claims have been supplying arms for the past two years. He was arrested even as the violence in Delhi was on and the police say they recovered five pistols and 20 cartridges from him. Many of the 55 people killed in the violence died of gunshot wounds. While Manish Sirohi is charged only under the Arms Act, even though he was arrested during the riots and found in possession of illegal arms. And on May 6, a Delhi court grants him bail, citing the risk to him of contracting COVID-19. The woman, Safoora Zarfar, despite her pregnancy and the heightened risk of being exposed to the coronavirus in Delhi’s overcrowded prison system ends up getting charged under India’s stringent Unlawful Activities Prevention Act (UAPA) and has been in jail now for three months without the prospect of bail.

The ground for denying bail to Safoora is that under Section 43-D (5) of UAPA, the court cannot grant bail if there are reasonable grounds to believe that the accusations against the accused are prima facie true. This has nothing to do with the merits of the main arguments about whether Zargar was actually present where the police claim she was, or whether she was part of the conspiracy or not, but is purely a function of what the authorities have argued before the court, as acknowledged by the judge. Section 43-D(5) says that a person accused of an offence under Chapters IV and VI of the UAPA (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” This implies that the ultimate power is in the hands of the judge to determine, whether the requirement of the existence of ‘reasonable grounds’ is met or not.

The fact that the UAPA law has a conviction rate of just one per cent, meaning 99 out of 100 accused who are booked under this act are actually innocent, tells us that denying bail to Safoora Zargar who is a 5-month pregnant woman in the light of the ongoing Covid-19 pandemic is against the idea of justice and liberty enshrined under the constitution. The image of a pregnant Safoora in the jail, for raising her voice against CAA-NRC, is haunting to say the least. But what’s more disturbing is to think about the narrative that the child in her womb will grow up with. As a society and the legal system, we are punishing the unborn child for a crime he/she never committed. Besides, later if it is proved that Safoora is innocent, then how can the legal system of India ever make up to her for the stress, trauma that she had to undergo as a pregnant woman in jail. One wonders, if the value of an unborn child and an expectant mother is so low in India?

08/12/2024 0 comments 26 views

How To File A Complaint On The Cybercrime Portal

by Sharanya Venkataraghavan 08/12/2024

written by Sharanya Venkataraghavan

By Sharanya Venkataraghavan

With the rise of the popularity of Social Media and Messaging apps such as Facebook, Instagram, WhatsApp, the abuse of women and children has now found its way onto these platforms. The recent Bois Locker Room incident where a group of young boys glorified rape culture and exchanged inappropriate pictures of young girls and women exposed the vulnerabilities of women online. The incident shocked society into the reality where women were no longer safe, be it offline or online and highlighted what women on the internet have faced for years.

In light of this incident among many other, the awareness of cybercrimes and the available legal redressal methods in unsafe situations online, becomes of importance especially to women who unknowingly expose themselves to such risks merely by being on a Social Media or Messaging Platform.

While most of these platforms such as Instagram, Facebook, WhatsApp etc. have their own policies that allow you to report material that violates their community guidelines, the framework is limited to taking down the material or deactivating the user’s account. Often the guidelines are loose, generic and limited, being ineffective in a large number of situation and the actions are inadequate.

One may additionally or alternatively choose to approach the Cybercrime Cell, set up by the Government of India to deal with cybercrimes specifically. The Cyber Crime Portal (https://www.cybercrime.gov.in) facilitates online filing complaints against various cybercrimes, especially against women and children directly through the portal. The portal is easy to use and reduces the fear of having to deal with police personnel and the discomfort of having to explain the situation. Alternatively, the case may be filed in person with the relevant Cyber Cell or Police Station in the form of a FIR. While the platform can be used for all sorts of cybercrimes, this article will specifically deal with those that relate to crimes commonly faced by women and children.

Filing A Complaint

What Complaints Can Be Filed On The Portal?

Child Pornography and Sexually abusive material– This refers to any material containing sexual image in any form, of a child or woman who is abused or sexually exploited
Cyber-bullying– Any sort of harassment or bullying on any online platform including but not limited to email, SMS, WhatsApp, Facebook, Instagram, Twitter, YouTube etc.
Cyber-stalking– Any attempt to follow a person, or attempts to contact a person to foster personal interaction repeatedly despite a clear indication of disinterest by such person; or monitors the internet, email or any other form of electronic communication commits the offence of stalking.
Cyber-grooming– Any adult who forms a relationship with a minor (below 18 years) and uses this relationship to pressure or tricks the minor into performing sexual acts
Online sextortion- When someone threatens to distribute private and sensitive material using an electronic medium if he/ she doesn’t provide images of a sexual nature, sexual favours, or money.
Sexting- An act of sending sexually explicit digital images, videos, text messages, or emails, usually by cell phone when not consented to.
Online Matrimonial Fraud- An act of creating a fake profile to on leading matrimonial websites with the purpose of cheating, which may be with the intention of taking money or any other favour under the guise of marriage.

Additionally, complaints of mobile crimes, online and social media crimes, online financial frauds, ransomware, hacking, cryptocurrency crimes and online cyber trafficking can also be filed though not discussed in the article.

Who Can File A Complaint?

Anyone who has been subjected to a cybercrime by an Indian citizen or an Indian company can file a complaint. Additionally, an Indian can file a complaint against a foreign national of a company on the Cybercrime Portal. Essentially, if even one of the parties is Indian, a complaint can be filed.

In the case of Child Sexually abusive material (CSAM), Child Pornography, Rape, Gang-Rape or sexually explicit material, anyone can report the same under the “Report Women/ Child Relater Crimes” on the Home Page. But in the absence of an anonymous reporting option, only the victims who have all relevant evidences can file the complaint in cases of mobile crimes, online and social media crimes, online financial frauds, ransomware, hacking, cryptocurrency crimes and online cyber trafficking.

What Kinds Of Evidence Can I Provide?

Depending on the complaint, the type of evidence varies but acceptable evidence includes:

Copy of email
URL of webpage
Chat transcripts
Suspect mobile number screenshot
Videos
Images
Credit card receipt
Bank statement
Envelope (if received a letter or item through mail or courier)
Brochure/Pamphlet
Online money transfer receipt
Any other kind of document

Up to 5 mb worth of evidence may be uploaded.

How Do I File A Complaint Of CSAM Or Sexually Explicit Material?

If you have come across such material and do not have any relationship with the person in the material or have any relevant information about the suspect but want to bring it to the notice of the authorities, you can choose to Report Anonymously (https://www.cybercrime.gov.in/Webform/crmcondi.aspx). While reporting anonymously, no Log-In needs to be created. Only category of crime and State where the crime has taken place OR your state of residence must be provided along with evidence. As evidence, you can add in links to the material, screenshots or any other kind of evidence. It must be noted that before filing a complaint, one agrees to facing charges if the event of which information is provided is fake.

Alternatively, one may Report and Track (https://cybercrime.gov.in/Default.aspx) especially if the person(s) featured in the material is one’s self or someone they know or it has been directly sent to you or shared by someone you know. This option also provides for details on the suspect, such as name, IDs, Address etc. Additionally, the complainant’s details must also be shared in this case such as name, contact details, gender, Date of Birth, a relative, a National ID and the relationship with the victim. Since the relationship with the victim and suspect details is a compulsory entry, this option is preferred in cases where a considerable amount of information is known about the event. You also get a complaint number that will help you track the complaint.

A step-by-step guide on how to register a complaint of CSAM or sexually explicit material can be found at https://cybercrime.gov.in/UploadMedia/MHA-CitizenManualReportCPRGRcomplaints-v10.pdf

How Do I File A Complaint For Cyber-Bullying, Cyber-Stalking, Sexting And Other Online And Social Media Crimes?

Crimes other than CSAM and sexually explicit material can be registered under the “Report Other Crimes” option on the Home Page (https://cybercrime.gov.in/Webform/crmcondi.aspx). The anonymous reporting option is not available and hence, only the victims can file the complaint in cases of mobile crimes, online and social media crimes, online financial frauds, ransomware, hacking, cryptocurrency crimes and online cyber trafficking. To register a complaint, one must first create a log-in on the Cybercrime Portal.

Once logged in, the category of complaint must be entered. In the case of Cyberbullying, Stalking or Sexting, take a screenshot of the SMS, messages, save the e-mail as a PDF or in the case of a page on social media, blog or a forum, note the URL and save the page with such content as a pdf for evidence. Date and time of the incident, where it occurred (email/ SMS/ Facebook etc.), uploading of evidence up to 5 mb along with any other relevant details is mandatory in the complaint.

In the case of Online Matrimonial Fraud, evidence in the same formats and above and bank details in the case that you have lost money needs to be provided.

A step-by-step guide on how to register a complaint of Online and Social Media Crimes other than sexually explicit material can be found at https://cybercrime.gov.in/UploadMedia/MHA-CitizenManualReportOtherCyberCrime-v10.pdf

Can I Withdraw A Complaint?

A complaint can be withdrawn if made under “Report Other Crimes” only, not “Report Crimes against Women/ Children”. It is also to be noted that anyone making false complaints will be liable under the Indian Penal Code.

Conclusion

After registering a complaint, you will get a Complaint Number and will be able to track the status of the complaint except if the complaint has been filed anonymously under “Crimes against Women or Children”. The complaint is dealt with the relevant Cyber Cell as per the State or District specification in the complaint.

The portal, launched late 2019 is easy to use and bridges a gap of the presence of cyber cells in most districts of India. Further, the alternative of filing a FIR is often tedious and intimidating. Also, in the current scenario of lockdown due to COVID’19 which has caused a spike in the number of cybercrimes against women and also limited access to Police Stations and Cyber Cells, it ensures complaints may still be registered. All in all, the portal provides a holistic platform for complaints of cybercrimes.

08/12/2024 0 comments 26 views

A New Turn of Page For Women In Indian Army : Latest Supreme Court Judgment Grants Permanent Commissions To Women

by Sharanya Venkataraghavan 08/12/2024

written by Sharanya Venkataraghavan

By Sharanya Venkataraghavan

On 23^rd July, 2020, the Defence Ministry of India issued a notification allowing women to be granted permanent commission including ranks, promotions and pensions and be allowed to serve longer tenures and command postings in all services other than combat in the Indian Army. Following a Supreme Court decision in February this year, the Apex Court ordered that women be treated equally in terms of Permanent Commissions and retirement by the Indian Army which had previously only allowed women short-service commissions up to 14 years in the Army’s educational and legal wings.

The Government made various dated arguments regarding why women must not be given permanent positions in the Indian Army in branches other than those currently allowed. The Government argued of a woman’s inability to sacrifice and commit to the same extent as men can since women’s domestic roles as a caretaker of her family restrict her. Further, the Government used arguments of physical and physiological “differences” between men and women to justify why women shouldn’t be allowed in the Indian Army. There were concerns of hygiene requirements of women and how men’s behaviour would have to be “moderated” around women. The thoughts of the Government were rooted in patriarchy where they reinforced stereotypes. They gave precedence to arguments of presence of women in the Army meaning male behaviour needing to be “moderated” over the rights of women who dream of serving the nation.

The Court expressed a similar opinion, deeming such statements as “disturbing” and pointed out the stereotypes of women being the sole bearers of domestic obligations used by the Army. The Court was upfront about how the current norms of erasing women’s merit purely based on gender is an affront to their gender and as members of the Indian Armed Forces. The Judges- Justice DY Chandrachud and Justice Ajay Rastogi recognized the discriminatory practices of the Indian Army and the problems in their arguments, taking a stance against it.

The Court adjudged Permanent Commission which has now been granted to women – giving them equal opportunities in the branches of Signals, Engineers, Army Aviation, Army Air Defence, Electronics and Mechanical Engineers, Army Service Corps, Army Ordinance Corps and Intelligence. This would apply to women currently working in SSC positions who would be considered for Permanent Commission and those who opt out would be allowed to continue till they attain 20 years of pensionable services. The same terms of receiving PC applicable for their male counterparts would be applicable to women and the option would be provided to women at the same level as their male counterparts. The Court didn’t offer any special privileges to women, but rather only provided them with the same opportunities offered to their male counterparts. However, women continue to be excluded in combat roles in the Army as the Court stated that it would have to be decided by a competent authority.

A similar judgement was given by the Supreme Court on women in the Navy in March, 2020 where they stated women were equally efficient at sailing and must be allowed permanent commission, from providing women only shorter commissions. The Air Force was and is the first and only wing to have women in combat roles as on 8th March, 2020 with Avani Chaturvedi, Mohana Singh Jitarwal and Bhawana Kanth. After a row of Supreme Court judgements, the Indian Armed forces is finally ridding itself of generations of patriarchal thought and opening more doors for women in the Armed Forces.

The Armed Forces started inducting women in 1992 for the first time in non-medical capacities. However, these women were only allowed to occupy short-service commissions of 6 years till it was extended to 14 years in 2006 while male counterparts with exemplary performance could move from Short-Service Commissions to Permanent Commission positions. This notification opens up in addition to legal and education streams- Signals, Engineers, Army Aviation, Army Air Defence, Electronics and Mechanical Engineers, Army Service Corps, Army Ordinance Corps and Intelligence where women may occupy on basis of merit- Permanent Commission positions.

What next for the Indian Armed Forces? While women are slowly being integrated into the IAF, women are yet to be appointed to positions in combat and specialized forces, specifically in the Indian Army, women in the Navy are yet to be positioned on ships since they’re not designed to accommodate women and the list goes on. While the Indian Armed Forces is definitely opening itself up to women who are breaking stereotypes, there is a long way to go to normalization of women in the Armed Forced which is seen as a “male profession” and has been for years and the accommodation of women not merely as women pilots, soldiers, commanders but as colleagues working towards the same goal with the same sense of camaraderie.

08/12/2024 0 comments 18 views

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