Need to protect the third gender from discrimination

Sathyanarayana R[1]

Introduction

The gender discrimination towards transgenders (Hijras) is a clear violation of Article 14 of the Indian Constitution which enforces right to equality. The fact that they are treated as third gender itself can be considered as violative of Article 14 of the Indian Constitution. The state should take serious steps to ensure that they are treated alike in regard to employment, education and access to basic necessities of life. On 15th April, 2014 there was a landmark decision by the Supreme Court of India which declared transgender people to be a ‘third gender’ and held that the fundamental rights granted under the Constitution of India will be equally applicable to the transgender people and gave the right to self identification of their gender as male, female or third gender.

Hijras and transgendered persons were recognized as the third gender by the law in India. India, Nepal, Pakistan and Bangladesh have recognized them as the third gender, and provide an option on all official documents right from the education system and even in the workplace.[2] They have their own lifestyle, livelihoods, origins, customs and traditions, and they have craved a space for theme self in society. Hijras could be born with hermaphrodite genitals, male genitals or female genitals[3], and hijras who are born with male variations because of which they undergo ‘nirwana’[4] which means a ceremony when the penis, scrotum and testicles of hijras who are born with male variations are removed. Hijra Farsi is the secret language developed by them.

It is also called as koti. Nobody besides the Hijra community would understand the language they speak. It was created for the purpose of self-preservation during the British Raj. While literature shows that Hijras occupied a privileged position in ancient India, the British criminalised us and put us behind bars. This language was as a survival mechanism for Hijras.[5]

Definition

A layman’s point of view of a transgender means a person who is a combination of both male and female. Any matter of confusion regarding definition or the meaning of a term which is a subject of legal debate can be sorted out with the help of the apex court’s interpretation of the term in question. This is essentially required in the case of understanding the term ‘transgender’ because there exist various definitions to the term and many more interpretations than the number of definitions it has. One of the most noted meaning of ‘transgender’ is that “transgender people are neither completely female nor wholly male; a combination of female or male and neither female nor male.”[6] Transgender people may identify as heterosexual, homosexual, bisexual, pansexual, poly sexual, or asexual.[7]

According to the Supreme Court of India, “transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.”[8] Though at the outset, it was said that any confusion to the term which is a matter of legal debate can be solved by resorting to the Court’s interpretation of the same, it seems like the broader definition of the term ‘transgender’ given by the SC has only resulted in making the term vague and ambiguous.

Synonyms and differences in meaning

The objective of this paper is not to provide with definitions or interpretations of the term ‘transgender’. However, before moving into the details of the legal issues that the third gender face, it is imperative to understand the various groups of persons who come under the broader meaning of transgender. Hijras are group of people in India who constitute a third gender category, considered by themselves and by others to be neither men nor women.[9] It is a South Asian term used for males who have physiological feminine gender identity. Hijras are the males who have physiological feminine gender identity where as in general Hijras are born with male physiology but very few born with inter sex variation.[10] Hijras are neither men nor female by virtue but they are like women with no female reproduction organ and menstruation.

Similarly, Hijras do not have reproductive organs like men or women. Some people are intersex which means they may have both gentilia just like a Hermaphrodite is their sex chromosomes might have an extra chromosome like XXX, XXY, XYX, XYY and numerous other combinations.[11] However the word ‘HIJRA’ in India is used to refer an individual who is transsexual or transgender. Apart from that, they are even called as Aravani, Aruvani,  kinnar, eunuch, kothi, jagappa or chaakka.[12]

Reformative steps

In Karnataka the Government introduced a pension scheme called “mythri” wherein transgenders with annual income less than Rs. 12,000 per annum in rural areas and Rs. 17,000 per annum in urban areas will be eligible for the scheme. They are required to submit relevant documents including a certificate from the Department of Health and Family Welfare to prove their gender. But the applicants are not entitled to any other benefits under the social security scheme.[13]

In Tamil Nadu a pension of RS 1000 is given to the transgender and people who are above 40 years and are living in poverty are eligible for the same. The Government announced yet another scheme for economic empowerment of transgenders wherein bank loans up to 15 lakh with 25% subsidy are provided for income generation activities by transgender self-help groups. Various economic activities such provision stores, rearing of milk animals, canteens, soap production units, napkin, milk products , plying auto rickshaws, and business activities related to cloth, coir, rice have been taken up by these self help groups. Under this scheme, 51 transgender SHGs have benefited with loans for various projects worth 2.20 crore with 25% subsidy of 55 lakh and 1.60 crore as bank loan.[14]

Odisha was the first state to implement and provide food grains, pension, health, education, and housing for transgender community, thus including them in the Below Poverty Line (BPL) category. The step has been taken to empower the transgender community.[15] They will be given a BPL card in which they can access social benefits under various government welfare programs.

Irrespective of the fact that there exist various such schemes as the ones above mentioned, only few transgenders are benefited and these welfare schemes do not address the plight of the rest of them. It is time that the respective governments of every state take up the responsibility to make it a point that these welfare schemes are made applicable to each and every transgender. Few of them are even scared to disclose their identity as a transgender.

Kerala had announced a transgender policy back in 2015, becoming the first state in India to do so. The policy ensures them equal access to social and economic opportunities, resources and services, the right to equal treatment under the law, right to live life without violence and equal right in all decision making bodies.[16] Though there were opportunities given for the transgender people in the Kochi metro, in one week, of the 21 transgenders employed, eight quit their job. This is because of non-availability of adequate lodging and conveyance facilities.[17] Andhra Chief Minister too has announced pension for transgender at an amount of Rs 1000 and a ration card and a house for each member in the community.[18]

NALSA v. Union of India: The reality v. the law

The judgment passed by the Supreme Court ensured that all the transgender people should be considered as a third gender and that they should be provided with all the benefits like the mainstream people. But, irrespective of fact that, they are still facing the same problem as earlier. In reality they are not provided with any jobs and past instances reveal that even though they are offered jobs, they eventually quit the jobs due to social discrimination and lack of social security in various other matters.

Though the welfare schemes are in existence, the reality is that only 4% of the transgender are getting that benefit, that too with the lot of shortcomings. The judgment has not been implemented with full force till date and the objectives behind the ruling of the Supreme Court becomes fulfilled only if transgenders are provided with adequate education facilities and job opportunities. It should be borne in mind that campus bias forces transgenders to drop out[19].

Most of the students who are from the transgenders drop out because they find it difficult and insulting to be amidst the people wherever they go. Not only in educational institutions even in the workplace some are forced to drop out and some they themselves drop out because of the problems they face.

Conclusion: Loopholes that need to be rectified

Right from the education system everything should be provided to them. People who want to undergo SRS (sex reassignment surgeries) should be given free or affordable surgeries and stets should be taken care to ensure that most of the hospitals provide facilities for such surgeries. Being a common law country, India should be at par with recognizing the rights of innocent civilians like the United States. Our country should learn from Oregon’s Transportation Commission which was the first institution to allow residents to identify as “non-binary”, a third gender option behind male or female and the Oregonians can select their gender as M, F or X as their gender on licenses and identification cards.[20]

The future challenges that lie in the case of rights of transgenders are the legal recognition in cases of adoption and marriage. Legal issues  related to transgender becoming surrogates, the legal issues connected with the same, legal recognition of marriages between transgenders etc are the future challenges that our legal system will have to face. As regards legal recognition of marriage between transgenders are concerned, a transgender person may be married to a person of the same sex.

That situation arises, for example, when one of the spouses in a heterosexual marriage comes out as transsexual and transitions within the marriage. If the couple chooses to stay together, as many do, the result is a legal marriage in which both spouses are male or female. Alternatively, in states that do not allow a transgender person to change his or her legal sex, some transgender people have been able to marry a person of the same sex. To all outward appearances and to the couple themselves, the marriage is a same-sex union.

In the eyes of the law, however, it is a different-sex marriage because technically speaking; the law continues to view the transgender spouse as a legal member of his or her birth sex even after sex-reassignment. The only way to overcome these issues is by giving transgenders proper freedom and equal liberties in all fields they deserve and there should be no discrimination between the genders as all of them should be treated equally before the law and the same is with the case of opportunities being provided to them.

[1] 5th semester BBALLB student at School of Legal Studies, REVA University, Bangalore

[2] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 15, 2017, 2:23 P.M.), http://topyaps.com/things-to-know-about-hijras

[3] Sathya Narayana, The Scientific Causes behind the Birth of Hijra or Third Gender, SPEAKINGTREE, Aug 11, 2016, (Dec. 1, 2017, 8:19 P.M.), https://www.speakingtree.in/allslides/the-scientific-causes-behind-the-birth-of-hijra-or-third-gender

[4] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Dec. 1, 2017, 1:11 P.M.), http://topyaps.com/things-to-know-about-hijras

[5] Anahita Mukherji, Hijra Farsi: Secret language knits community, THE TIMES OF INDIA, Oct 7, 2013, (Sep. 16, 2017, 10:36 P.M,), http://timesofindia.indiatimes.com/india/Hijra-Farsi-Secret-language-knits-community/articleshow/23618092.cms

[6] Jayshree Bajoria, Making Transgender Rights a Reality in India, HUMAN RIGHTS WATCH, July 25, 2017, (Sep. 14, 2017, 10:03 P.M.), https://www.hrw.org/news/2017/07/25/making-transgender-rights-reality-india

[7] Fatima Nuyab, What is the difference between Hijra and Transgender, QUORA, April 16, 2017, (Sep. 14, 2017, 9:19 P.M.), https://www.quora.com/What-is-the-difference-between-Hijra-and-Transgender#MoreAnswers

[8] Para 11 of NALSA v. UOI (2014) 5 SCC 438

[9] Serena Nanda, Neither Man Nor Woman: the Hijras of India, PRENTISS RIDDLE, Dec 19, 1991, (Sep. 25, 2017, 9:57 P.M.), http://prentissriddle.com/play/hijras.html

[10] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 23, 2017, 9:30 A.M.), http://topyaps.com/things-to-know-about-hijras

[11] Safiya, What sexual organ does a transgender have, QUORA, Feb 18, 2016, (Sep. 25, 2017, 9:37 P.M.), https://www.quora.com/What-sexual-organ-does-a-transgender-have

[12] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 14, 2017, 9:38 P.M.), http://topyaps.com/things-to-know-about-hijras

[13] Karnataka Government Launches Pension Scheme ‘Mythri’ For Transgender People, GAYLAXY EMPOWERING EXORESSION, Feb 22, 2014, (Sep. 27, 2017, 11:30 A.M.), http://www.gaylaxymag.com/latest-news/karnataka-government-launches-pension-scheme-mythri-for-transgender-people/#gs.ZsPcIdQ

[14] Transgenders to get Rs 1,000 monthly pension, THE TIMES OF INDIA, Aug 2, 2012, (Sep. 27, 2017, 8:39 P.M.), http://timesofindia.indiatimes.com/city/chennai/Transgenders-to-get-Rs-1000-monthly-pension/articleshow/15322613.cms

[15] This state is first in India to provide pension and food benefits to the transgender community, INDIA TODAY, June 6, 2016, (Sep. 26, 2017, 9:28 P.M.), http://indiatoday.intoday.in/education/story/bpl-status-to-transgenders/1/685370.html

[16] Nagpur Today, Kochi Metro hires transgender/ hijras, can Nagpur metro follow the example?, NAGPUR TODAY, May 13, 2017, (Sep. 17, 2017, 10:27 P.M.), http://www.nagpurtoday.in/kochi-metro-hires-transgender-hijras-can-nagpur-metro-follow-the-example/05131505

[17] Ramesh Babu, In one week, eight transgender employees quit working for kochi metro, HINDUSTAN TIMES, June 25, 2017,(September. 13, 2017, 10:30 P.M.), http://www.hindustantimes.com/india-news/in-one-week-eight-transgender-employees-quit-working-for-kochi-metro/story-XDp6xgnA2Y6dhaAYcs8abP.html

[18] Chief Minister promises pension, housing for transgenders, THE HANS INDIA, Sep 22, 2017,(Sep. 27, 2017, 8:27 P.M.), http://www.thehansindia.com/posts/index/Andhra-Pradesh/2017-09-22/Chief-Minister-promises-pension-housing-for-transgenders/328280

[19] Ambika Pandit, Campus bias forces transgenders to drop out, TIMES OF INDIA, June 8, 2017, (September. 13, 2017, 10:11 P.M.), http://timesofindia.indiatimes.com/city/delhi/campus-bias-forces-transgenders-to-drop-out/articleshow/59045435.cms

[20]Laurel Wamsley, Oregon Adds A New Gender Option To Its Driver’s Licenses: X, THE TWO-WAY, June 16, 2017, (October. 4, 2017, 7:48 P.M.), http://www.npr.org/sections/thetwo-way/2017/06/16/533207483/oregon-adds-a-new-gender-option-to-its-driver-s-licenses-x

Compromising Citizens’ Privacy for National Interest: A Fair Trade-Off?

Aryan Vij ((1st Year Student of B.A.LL.B. (Hons.), National Law Institute University (NLIU) Bhopal, M.P.)).

On December 2, 2015, two terrorists of Pakistani descent brutally killed 14 Americans and seriously injured 22 others in a mass shooting attack in San Bernardino, California. In the ensuing investigations, the FBI recovered an iPhone belonging to one of the terrorists.

Citing national interest, the FBI made a formal request to the phone’s manufacturer, Apple, to unlock the device and give it access to the data stored in it for possible clues about the terrorists’ wider network.

Apple refused to accede to the FBI’s request, and vowed to vigorously fight a California court order directing it to cooperate with the FBI. A few weeks later, the FBI voluntarily withdrew its request to Apple and asked Judge Sheri Pym to drop the case.

Leading technology companies, including Google and Facebook, hailed Apple’s stand against the government to compromise the privacy of millions of iPhone owners by handing over the access codes to the FBI.

The Individual is “Sovereign”

In its recent landmark 547-page judgment page judgment, the nine-judge Supreme Court bench in India declared Right to Privacy as a fundamental right. Justice Chandrachud’s order, as part of the judgment, is most remarkable because it traces the historical roots of the right to privacy. The order quotes Aristotle who recognized over 2,300 years ago that every citizen has a “confidential zone” which only belongs to them (Justice KS Puttaswamy v. Union of India, WP(C) No: 494/2012 decided on August 24, 2017).

Justice Chandrachud recalled the “Commentaries on the Laws of England” (1765) where William Blackstone said that certain “absolute rights are vested in the individual by the immutable laws of nature, which include the right to personal security and reputation.” The order cites from the Treatise on the Law of Torts (1888) where Thomas Cooley notes that “the right of one’s person may be said to be a right of complete immunity; the right to be alone.”

Justice Chandrachud, in his order, goes on to quote from an essay “On Liberty” (1859) by John Stuart Mill, which says that, “Over himself, over his own body and mind, the individual is sovereign.”

The Importance of Individual’s Consent

The Canadian Supreme Court, in the case of “Her Majesty, The Queen vs. Brandon Roy Dyment” (1988), highlighted the critical importance of individual consent even in the matters pertaining to the safety and security of the state. The case involved a physician who collected a patient’s blood sample for medical reasons, and handed it over to the police as part of a criminal investigation.

The Supreme Court held in the case that using the blood sample without consent even for the state’s security purposes was a violation of law.  As Justice LaForest famously said, “The use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity ((Bailey, Jane, Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity, and Child Pornography (2008). Jane Bailey, “Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity and Child Pornography”, 31 Dalhousie Law Journal 55, 2008. Available at SSRN: https://ssrn.com/abstract=2279618)).”

Such protection of an individual’s privacy even brings into question the validity of the Indian government collecting biometric information from the citizens without giving them an option of “consent.” The Supreme Court of India is now setting up a five-judge Constitution bench to hear petitions challenging the government’s decision to make Aadhaar mandatory for availing various welfare benefits ((Aadhaar case: Supreme Court to set up five-judge Constitution bench to hear pleas, The Indian Express (October 31, 2017) and available at http://indianexpress.com/article/india/aadhaar-case-supreme-court-to-set-up-constitution-bench-to-hear-pleas-4913605/)).

A Universally Unfair Trade-Off

Technology has universalized the world, and challenges to citizens’ privacy in the name of national security are not confined to one country alone. On September 26, 2017, Microsoft CEO Satya Nadella launched his book, “Hit Refresh,” where he writes that the consumers’ trust in governments around the world is diminishing because of weak data privacy laws, which allow the governments to act unilaterally, while hiding behind the cover of national security ((Hit Refresh: The Quest to Rediscover Microsoft’s Soul and Imagine a Better Future for Everyone. Satya Nadella, Greg Shaw, Jill Tracie Nichols, Harper Collins (2017).)).

In his book, “Nothing to Hide: The False Trade-off between Privacy and Security” (Yale University Press), author Daniel J. Solove comprehensively demolishes the fallacious pro-security argument that continues to allow governments to breach privacy of the citizens. Solove says that while the law seeks to find the elusive balance between security and privacy, systemic problems disrupt that balance. Judges are typically deferential to policy-makers in the matters of security, and the citizens lose in the process ((Nothing to Hide: The False Trade-off between Privacy and Security. Daniel J. Solove, Yale University Press)).

Privacy IS National Interest

The debate on privacy versus national interest should begin with the question: What exactly is national interest? National interest is not interest of the “nation,” which is a notional entity. It is not even the interest of the political class that rules the nation. National interest is the interest of the people who constitute the fabric of the nation.

It brings us to the second question: What is in the best interest of the people of the nation? Who gets to decide that? In a democratic society, only people must decide what is in their best interest. The political class cannot decide that on behalf of the people. They are the elected representatives of the people. Whatever the people will decide, the representative must represent that as national interest in a democracy.

This brings us to the ultimate question: What do the people want? Do people want to be the deciders of their own destiny, or do they want to leave it in the hands of a deeply distrusted political class that has historically worked only with a single-minded goal of perpetuating its seat of power?

A Failed Trade-off

Governments around the world have traditionally held the greatest contempt for citizens’ privacy in the name of national security and national interest. Has this approach led to a decrease in terrorism over the decades? Has this approach led to a decrease in nuclear, chemical, biological and other forms of global threats to the world?

The truth is that citizens’ privacy has the least degree of connection with terrorism, war, climate change and other forms of manmade dangers that have been unleashed on the civilization by those who gain political power and then have a compelling need to perpetuate that power by compromising all the basic human values of integrity and dignity.

Privacy – A Birthright

To borrow the famous phrase from India’s freedom struggle, privacy is not even a fundamental right, it is a birthright. Privacy is the core need of a human being, whom Aristotle called a “social animal.” Human beings, like many other species, by nature live in herds. When you live in a herd or in an evolved social system, your privacy becomes your most intimate possession. In the Bible, even the world’s first citizens, Adam and Eve, had privacy as their first basic need.

Without privacy, you are naked because someone else can peep into your private existence and violate it. What can be a bigger interest of a human being than privacy? To extend this argument, what can be a bigger national interest than the citizens’ privacy? Those who propagate the myth that privacy is dichotomous from national interest, and that there must a balance or a trade-off between the two, either do not understand the deepest human values of personal freedom and dignity, or have a vested interest in compromising the privacy of citizens to perpetuate their own power over them.

Exposing the Propagandist Element of ‘National’ Interest

Any term that begins with the word “national” should first of all be examined with tempered caution and suspicion. This word is the greatest tool of propaganda that has ever been invented since the inception of civilization by men to rule over other men. Hitler used it to great effect by misleading an educated and aware nation like Germany, completely subordinating their will, and making them support the barbarian extermination of millions of Jews, followed by a globally destructive world war – all in the name of ‘national interest’.

Hitler devoted an entire Chapter 6 to propaganda in his autobiography Mein Kampf. He wrote: “All propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to. The art of propaganda lies in understanding the emotional ideas of the masses ((Mein Kampf : An Autobiography Of Adolf Hitler 1st Edition. Adolf Hitler, Gbd Books (2010).)).

“The function of propaganda,” Hitler further wrote, “is not to weigh and ponder the rights of different people, but exclusively to emphasize the one right which it has set out to argue for. Its task is not to make an objective study of the truth, and then set it before the masses with academic fairness. On the contrary, its task is to serve our own right, always and unflinchingly.”

Nations have Wronged the Individual

The individual supersedes the nation. Without an individual, there is no nation. However, ‘nationalism’ presents a twisted truth, which suggests that ‘national interest’ supersedes ‘individual interest’ – as if national interest is something different from individual interest.

The advancement of democracy in the world has, ironically, added more strength to the counterfeit concept of nationalism. Democracy, by definition, is a celebration of the individual. Although democracy has brought freedom to the many against the power of an autocrat, but it has also compromised the liberty of the one against the power of the many ((REINHOLD NIEBUHR, The Nation’s Crime Against the Individual, The Atlantic (November 1916 Issue) accessible at https://www.theatlantic.com/magazine/archive/1916/11/the-nations-crime-against-the-individual/306365/)).

Can there be a ‘Fair’ Trade-off of Self-respect?

George Orwell’s Nineteen Eighty-Four described a world marked by a complete absence of citizens’ privacy and an absolute governmental control and surveillance. The citizens in the Orwellian world are told to speak with care because the ‘Big Brother’ is watching. The dark world of Orwell’s 1984 is a world without citizens’ autonomy, dignity and self-respect ((1984, George Orwell and Erich Fromm. Signet Classics (1950))).

Privacy is the foundation of citizens’ freedom, dignity and self-respect. The privacy of Draupadi constituted the self-respect of Pandavas.

Lord Krishna said in the Bhagvad Gita, as the two gigantic armies stood facing each other on the battleground: “Self-respect, O Arjuna, is worth dying for.” Trading self-respect for something as emotionally deceptive and propagandist as ‘national interest’, which has already caused enough bloodshed in history, is truly against the interest of a nation – where ‘I’ am the ‘nation’.

Quadrilateral alliance (Quad) – the next door of opportunity

MV Karthik Narayanaswamy ((MVK Narayanaswamy is an audit and secretarial consultant based at Wayanad District of Kerala State. He is a Company Secretary and possess a Master Degree in Business Administration with specialization in Finance. He also holds Bachelor Degrees in Public Administration as well as Commerce. Author in this article made an attempt to share his thoughts on Quad (the Quadrilateral alliance formed among India, Japan, USA and Australia)).

Government of India demonstrated a very positive approach in building healthy relations with the rest of the world nowadays. Honourable Prime Minister Shri. Narendra Modi’s effort in this regard needs a special mention. It is evident from the policies of the present India Government that, the government is giving an utmost importance in building and maintaining bilateral and multilateral relations with rest of the world. While framing such policies the present government has given due credit those Indians (Pravasi) who are spread across the world. Programs like ‘Pravasi Bharateeya Divas’ are playing a vital role in these context. As a result, Government of India even established relationships with those countries which didn’t have any relationship with India in last 30 – 40 years. Bilateral relationship with Canada is an example. Similarly, India’s participation, membership and recognition in various international organisations, groups and forums indicates the increasing importance of the nation along with other leading countries viz. US, France, Japan etc.

India joining hands with Australia, United States of America & Japan forming Quadrilateral alliance (QUAD) drew global attention. The idea of Quad was initially mooted in the year 2006 by then Japanese Prime Minister Shinzo Abe. Under this alliance the member countries of Quad agreed upon a free, open, prosperous and inclusive Indo-Pacific region serves the long-term interests of all countries in the region and of the world at large.

The coalition held their first formal talk in Manila, Philippines and consultations were held on issues of common interest in the Indo-Pacific region with a focus on cooperation based on converging vision and values for the promotion of peace, stability and prosperity in the area. The Quad gained the global attention mainly because of following reasons;

  • China is trying to become the leader of Asia as first step and later leader of world, a position higher than USA; and
  • Significantly, India may use this alliance as a new strategic tool against China and Pakistan in its external affairs.
  • Similarly, Quad has got the potential to build immense pressure against China in their One Belt and One Road (OBOR) initiative, String of Pearls (Group of Ports), Invasion to South China Sea etc.

Though, demonetization (as per reports of Economic Survey 2016-17, Volume II)and GST implementation, has reduced the growth in GDP, Indian economy’s growth prospect is ever increasing.World Bank’s ‘Ease of doing  business’ report  shows that India’s ranking in ease of doing stands less than 100 for 2017-18 whereas in 2016-17 the rank was 131. World Bank reports also shows that India is World’s fastest growing economy. Thus, it is evident that china view India as its competitor due to its growth in economy.

Being a developing country as well as world’s fastest growing economy, India need co-operation from the rest of world. For that economic and social association with rest of the world is indeed, especially with developed economies. From this sense, Quad can be seen as an important strategic relationship even in addressing common challenges of terrorism and proliferation linkages impacting the region as on enhancing connectivity.

India’s Act east policy (Earlier, Look east policy) is the cornerstone of engagement of this region. Act east policy focuses on increased engagements with the regional blocs. The idea of Quad is to promote free trade and defense cooperation across a stretch of ocean from the South China Sea, Indian Ocean and all the way to Africa. Earlier there was a trilateral arrangement between India, USA and Japan. However later according to Japan’s wish Australia was also added and the Quad Group was born.

When we observe from Pakistan, it is a jealousy move of India. As everyone know that, Pakistan is trying to hinder our development process through terrorism and other anti- national elements. The situation of insurgency in Jammu and Kashmir is a very good example of Pakistan’s intervention in India. To certain extend China is also supporting Pakistan in order to hinder India’s growth. China’s objection against India’s membership in Nuclear Supplier Group (NSG) on a baseless ground (that, if India is given membership, Pakistan should also be given membership since they applied in the same time) could be co-related in these lines.

India is enriched with both natural as well as human resources, and it is the responsibility of the State to create necessary opportunity to explore its resources. When an eye-catching opportunity is created the problem of “Brain drain” can also be solved which will indeed boost the overall development of the society. As mentioned earlier, the co-operation and support from developed countries as well as others are very much needed for India during this transition period.In these context, let’s see Quad as a next door of opportunity which could add fuel to India’s overall growth.

Sedition laws in 21st century India

A SHOWPIECE OF COLONIAL HANGOVER?

Jyotsna Gabriel & Kush Agarwal ((Students of 2ndYear B.A, LL.B, School of Law – Christ University)).

‘AUTONOMY IS AS AUTONOMY DOES’

An analysis into the draconian law paving its journey all the way from the colonial era making such act punishable with imprisonment for life. Government today does not recognize the fact that sedition laws today are not feasible in the turbulent politics of the Republic of India, which is a strong, vibrant and participative democracy. What is more, it seeks to negate the very idea of universities, where freedom, inquiry, questions, dissent and debate constitute the essential foundations of learning that make for good citizens in a democracy. An effort is made by the authors to analyze the present law of Sedition in India vis-a -vis its clash with freedom of speech and expression.

Every man has a right to be heard; But no man has the right to strangle democracy with a single set of vocal chords.

– Adlai Stevenson

INTRODUCTION

The only factor that distinguishes a life of a free man or women from that of a slave is FREEDOM – Freedom to speak, to express ((What is the true meaning of freedom according to you? ,Saurabh Jain , available at https://www.quora.com/What-is-the-true-meaning-of-freedom-according-to-you  last seen at 20/10/2016)). Freedom is not just the lack of restrictions but also the ability to stand alone, unsustained by anything else, where the words come out from the depth of truth and fearful authorities do not impediment this flow. But unfortunately India never got over her colonial masters. We continue where British left. Ever since Thomas Babington Macaulay drafted ‘crime’ of ‘sedition’ (Section 124A) as Section 113 in IPC draft of 1837 originally to deal with “increasing Wahabi activities that posed a challenge to the colonial government”, it has continued to be a constant threat to free speech. The Sedition Laws of the country thus speaks of a bitter truth:

“Whoever…brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India, shall be punished with imprisonment for life…or with imprisonment which may extend to 3 years” besides fine.

In the beginning, Section 124A criminalized excitement of “DISAFFECTION” only, but in 1898, “HATERED /CONTEMPT” was added as an amendment. The word ‘Queen’ which was further replaced by ‘Government’  in this law labels a person as criminal if he hates ‘State’ or develops contempt, enmity or any form of ill- will for it. This was initially used during the British regime against the rebels and aftermath used as a weapon against criticism to suppress the expression. Mahatma Gandhi himself was prescient in recognizing the fundamental threat it posed to democracy when he called it ‘the prince among the political sections of the Indian Penal Code’ designed to suppress the liberty of the citizen ((Noorani, A.G. Indian Political Trails. New Delhi: OUP. 2009, p.235)). Not just sedition but blasphemy laws are also becomes an hindrance to free speech to which Pakistan is in forefront by the virtue of being an Islamic state but India shouldn’t have place for such black laws because she is world’s largest democracy with lengthiest written constitution! These laws thereby prevents dissent hence should be subjected to strong amendments.

UNCONSTITUTIONAL CRIME

History of ‘sedition’ states that many of the freedom fighters were victims of this law straight from Bal Gangadhar Tilak, who was tried thrice for Sedition and his further imprisonment to Mandalay jail to nationalists like Annie Besant and Mahatma Gandhi tried at the time of Independence. Britisher’s used sedition laws to quell the Indian freedom struggle and retain its imperial power.

After the establishment of High Courts and the advent of Constitution, many High Courts were in favor of striking down Section 124A as being void. Justice Patanjali Sastry pointed out the deletion of Sedition as being deliberate as laid in Romesh Thapar vs. State of Madras ((AIR 1950 SC 124)).

Some High Courts in the late 1950’s declared Section 124A as being voilative of Article 19(1)(a) . One such decision being In Ram Nandan vs. State ((AIR 1959 SC 101))a full bench in the Allahabad High Court held sedition to be void and unconstitutional restricting freedom of speech declaring it ultra vires. However, the decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court overruling its decision and validity in the case ofKedar Nath Singh v. State of Biharconsidering the scope of subversive speech and thus holding it intra vires. This decision laid down the law of sedition of what it is interpreted today.

In this decision 5 appeals were clubbed together to discuss the constitutionality. Further the change which was brought in Kedar Nath vs. State of Bihar((AIR 1962 SC 955))was put to test on the touchstone of Article 19 in the case of Tara Singh Gopichand vs. State ((AIR 1951 East Punjab 27))before the Punjab and Haryana High Court where it was struck down as being contrary to freedom of speech and expression. In Balwant Singh vs. State Of Punjab ((1995 (1) SCR 411))the court was of an opinion that mere raising of slogans and absence of valid proof in other persons joining former in raising those slogans will not amount to sedition. It laid down guidelines as to how police should conduct itself in situations like these and use of excessive force can be counter-productive.

The case of Meerut conspiracy in which the accused were charged with conspiracy to wage a war for having formed a union on the lines of trade unions of soviet Russia which led their conviction in sessions court which further the Allahabad court held that unless it’s a conspiracy to overawe the government using means of criminal force, such act will be considered wrong.

Of these instances, it is wrong to say that sedition shouldn’t be a law at all, in fact, in order to prevent the abuse of democracy and its attributes, there should be a license to the same, but this in no way should mean that it curtails the Fundamental Right in itself…after all we are the citizens of the country and not the citizens of the government! Instances of the same can be found when recently in the news an image where instead of  three lions of Ashoka Pillar, Aseem Trivedi drew three wolves oozing out the blood , and altered “Satyameva Jayate” (Truth alone Triumphs) into “Bhrashtameva Jayathe” (Corruption alone Triumphs) ((India Today, Anti Corruption cartoonist Aseem Trivedi arrested on sedition charges, September 9, 2012 available at http://indiatoday.intoday.in/story/anti-corruption-cartoonist-aseem-trivedi-arrested-on-sedition-charges/1/216643.htm last seen at 22/10/2016)).The question here which comes to the mind is – Is it actually seditious? Is it actually an insult to the National symbol?  If it is actually considered seditious every person who is charged with corruption too shall be sent to jail. Drawing of a cartoon or writing an article relating to whatever serious meaning it may communicate shouldn’t be considered ‘seditious’. Trivedi only expressed his mind set of an agitated India considerate about his country, where the politicians and the bureaucrats have turned National symbols into symbols of Danger, nothing more nor less! However his arrest has been heavily criticized in India terming it as ‘stupid move’. Back to the philosophy classes, one can actually relate the issue of free speech and sedition to Roscoe Pound’s Theory of Social Engineering, in a way that Free speech and Sedition have conflicting interests much like Section 499 of IPC and Article 19(1)(a) of the Indian Constitution. Article 19 of the Constitution gives every citizen six fundamental freedoms and one of them happens to be of ‘free speech and expression’. These rights are subjected to reasonable restrictions in public interests under vague and ever inclusive ambits of public order, morality, public health, national security, etc. We believe that Laws should aim at reconciliation of conflicting interests in the society but looking at the flipside to it , sedition laws have been time and again misused for political mileage. Anyone who dares to question the actions of his political masters is instantly labeled as anti-national and is slapped with sedition charges against him.

Free speech is the backbone of any democracy and such reckless and impulsive behavior by authorities is not only uncalled for but hinders free thinking and exchange of ideas. Sedition has been a lethal tool of right wingers to suppress left wing dialogs and how can one expect winds of change if the vocal cords are strangled with wires of sedition?  This is not just miscarriage of justice but death of democracy by grossly violating human rights…! On one hand ,  we claim to be the most tolerant and diversified nation and on the other  we declare our own citizen as anti-nationals when he talks about his wife pondering to leave the country in a press conference negating and neglecting his endeavors towards bringing national awareness through his sitcom. A government which cannot be tolerant to ideas and opinions of its own people is a stigma on the face of ‘effective governance’ and puts democracy in a vegetative state or on ventilation or life support. It’s like polity playing “Big Brother” from Orwell’s much celebrated “1984” where every idea, opinion, action or emotion against the villainous Big Brother was condemned and punished much like modern North Korea. There, thus, goes a cycle which facilitates change in any state and the cycle is of thesis, anti-thesis and synthesis. Cycle kicks off with an idea which is thesis and opposition to that idea is its anti thesis leading to violence. The tussle between both gives one suo motu synthesis which is a new idea all together and that becomes instrument of change ….but unfortunately every anti-thesis is adjudged in the light of sedition or “Deshdroh”. Hobbes in his book “Leviathan” talked about an imaginary sea monster that was responsible to protect the rights of its citizen in exchange of consensus from citizenry. In this case the polity plays the role sea monster using sedition laws to oppress dissenters.

It is the fundamental duty of every government irrespective of its form to respect the rights of life, liberty and property of its citizens and it would a cardinal sin on its part failing to do so. Law of sedition is a blunt sword and can be used in multiple ways but it is rather unfortunate to witness execution of opinions on the blade point of this sword. One cannot do much about sedition as a law because it derives its authority from the Constitution which in turn derives authority from us, the People of India. We the people of India are ‘Grundnorm’ for every law that is operative in Indian domain including sedition. This law in question which should be largely apolitical has become a subject of vote bank politics. Advocates who referred to Bruhan Whani’s killing as Army Excessive were also called names like anti-nationals and pseudo liberals and the very act of filing a petition in the Apex court of the land was termed seditious which is a constitutional right.

Instances like: Amnesty International being charged with sedition for organizing a debate on Kashmir issues. A folk singer in Tamil Nadu being charged with sedition for singing songs mocking laws in Tamil Nadu relating to Liquor. 3000 people collectively being charged for sedition for protesting against a power plant. In UP Seema Azad and her husband and two people from the Union of Civil Liberties being arrested and being slammed with sedition. Separatist elements in Jammu and Kashmir and media houses giving platform to them have often been accused of sedition. A  PIL was filed by Common Cause, an NGO to repeal sedition laws where Supreme Court in response to the petition stated that criticizing or defaming Government or state’s instrumentality will not fall within the ambit of Section 124-A of the Indian Penal Code. The most trusted test to ascertain if the act was seditious or not is by judging if it was capable enough of inciting violence which in itself is vague because it depends on the sentiments and fundamentalism of people which is very objective in nature.

Discussion on the lines of any public policy is not termed as sedition but words like ‘ disaffection’, ‘ enmity’, ‘ disloyalty’, in the bare provision has been time and again criticized by legal scholars and is in dire need for explanation to provide clarity. Charge of sedition is a cognizable offence and police might not have proper training to label an act of being seditious or not.

Crimes Record National Bureau has no separate head of sedition which would inform one about the number of sedition cases filed in each state each year. Anti-sedition advocates believe that the state is not misusing sedition law but using the way it is meant to be used that is to suppress any form of dissent or neutralize any threat in the myth of national security. Reading banned literature has also lead to sedition charges. Should sedition be removed from Indian Jurisprudence? Still remains a topic for hot debate. Law in itself is still Victorian – A still showpiece of Colonial Hangover where the parent Nation has already repealed it. Pro-sedition  activists believe that sedition laws act as sword of Hercules hanging on the necks of persons conspiring evil designs against the state and fourth generation warfare is much more lethal and dangerous than an invading army because enemy is invisible and is one amongst the people. Naxalism is an offshoot or evil child of sedition.

SECTION 124A BEING AN OBSOLETE CRIME INTERNATIONALLY

Various countries have repealed laws of Sedition:

1.The United States repealed sedition act of 1918 thereby reducing the Smith Act 1940 into a dead letter followed by the directions given by the Supreme Court,  bringing forth the First amendment of Constitution of United States of America which is on freedom to speech is strong enough to give legal immunity to Presidential candidates against communal hate speeches. Canada is a representative democracy and no sedition case had been reported in the last five to six decades.

These countries only charge individuals on the lines of sedition in the ‘Rarest of the rare’ cases thereby supporting free speech and think tanks.

  1. Ever since England decriminalized Sedition in 2009, debates arise weather India in 21st Century especially after Kedar Nath case is rarely applied in spirit. Human Rights activists have called this as a BLOT on Indian Democracy ((Journey of Sedition, Karan Shah)). Recently UK abolished offences of sedition and seditious libel. No doubt the Sections in IPC that deal with ‘conspiracy to wage a war against government and sedition are draconian. It is most unfortunate that sedition was not removed as a crime from the IPC but was just deleted as a ground for restriction on the free speech.
  2. The whole law pertaining to sedition was repealed in New Zealand under the Crimes (Repeal of Seditious Offences) Amendment Act 2007 thereby removing the crime of Sedition altogether from the statue book of New Zealand.
  3. Sedition has been declared ‘unconstitutional’ in Indonesia, following in the footsteps of their Dutch Colonial Masters.
  4. The Republic of South Korea did away with its Sedition laws during democratic and legal reforms in the year 1988.

CONCLUSION

Today nationalism is decided by whether one can say “Bharat Mata Ki Jai” or not. Our Constitution gives people the right to say it as well as not to say it. People should have the right to choose whatever they believe is correct or not and that’s democracy. India needs a ‘Kaniya’ as much as it needs a ‘Krishna’. Until the time sedition remains, the Indian Penal Code will never be an Indian Code but will continue to be British Penal code. If inspiration is drawn from England in every aspect, why not make the law obsolete as done by England itself? There was a time when being charged under sedition in pre independent India was considered to be an honor because accused joined the ranks of Bhagat Singh and MK Gandhi but today Humanitarians like Binayak Sen with national and International support and Arundati Roy who is known to have controversial views against the state are being framed for sedition.  Hence as Law Commission Chairman Justice BS Chauhan rightly says there is a need to revise sedition laws as it was drafted more than 150 years ago to the changing needs of society. Time has come where we take appropriate measures and try to amend this tool which hinders the successive ‘democratic’ political government. International Covenants like Article 19 of United Nations Declaration of Human Rights (UDHR), 1948 and the International Covenant on Civil and Political Rights (ICCPR , 1966 talk about upholding freedom of speech and expression. Sedition has become a weapon to neutralize all opinions against the ruling party and tremendous rise in the number of cases filed in the name of sedition bears a testimony to the fact. Article 19 clause a of the Constitution Of India is a fundamental right and threshold of restricting it under Article 19 clause a sub-clause 2 is rather high. Sedition is the gravest offence one can commit when it comes to the violation of Article 19. Media which is the ‘Fourth pillar of democracy’ have time and again branded persons accused of sedition as seditious and anti-national when the matter has been pending in the court of law and such labelling has a strong bearing in the minds of the masses and the judge. All said and done one cannot undermine and underestimate the importance of sedition as a law because India has had social movements which were seditious in character and took an ugly turn later. Modern Indian state which had transformed from a military or police state to a welfare state is exactly doing what her British predecessors did and that is manipulating legal machinery to crush dissenters and thus law of sedition should be amended at once. Nationalism shouldn’t be used as an excuse to facilitate litigation on the grounds of sedition. Its time Section 124A is sent to where it belongs- to the scrapheap of repealed laws. It is on the readers to decide how far the current law is just and as natural law school advocates believe and so does the author that: Lex ininusta non est lex.

“Your freedom ends where my nose begins but one should not have a Pinocchio’s nose.”

 

Disclaimer: The views expressed this article are that of the author alone and do not represent the views of the Lex-Warrier: Online Law Journal, OR its editors OR its managers.

Triple Talaq: From Prescriptive Functionalism to Transformative Constitutionalism

   Author: Dr Nafees Ahmad*

India is confronted with a situation that has acquired, unfortunately, political primacy in a gender equality discourse. The religion of Islam bestowed upon equal rights for men and women devoid of any distinction including right to divorce. The utopian union of the husband and wife is a perennial pre-requisite for conjugal covertures in all civilized societies. Invariably, all religions advocate a normative framework for procreating a society based on gender equality and Islam is also one of them. Islam, therefore, insists upon the synovial subsistence of a bridal brolly where under husband and wife are basking.  Primarily, no marriage is contract in Islam to be dissolved in future.  But in rare-avis situations this celestial celebration may come to an end owing to the mawkish megrims of the spouses, particularly of men, though a divorce may be either by an act of husband or by an act of wife.

In pre-Islamic Arab World pertinent power of divorce (Talaq) possessed by the husband was recklessly unlimited.  Pronouncements and revocations of Talaq were devoid of any recondite reasons and judicative justifications whatsoever. In post-Islamic Arab World, when Holy Prophet hood was bestowed upon the Prophet of Islam (PBUH) who looked upon these concupiscent customs of divorce with dissentient disdain and disapproval.  Prophet of Islam (PBUH) regarded pervert practice as callously calculated to hamstring the foundation of society.  Prophet (PBUH) had to immaculately inculcate Islamic injunctions and teachings in the macabre minds of Arabs who were acquiesced in brutalisation, dehumanisation and subjugation of women from cradle to cremation. They revelled in polygamy and polyandry, and misogyny and polygyny without any submission to the supremacy of the Supreme Being; The Almighty Allah. Prior to Islam a husband could desert his wife at a moment’s notice. His repudiation (Talaq) of his wife operated as an instant and final denouement of the conjugal contract.  This right of repudiation exercised by the husband stemmed from his exalted position as a purchaser of wife since the institution of slavery and manumission was rampant.

The Holy Quran, of course, virtually suspended the effects of sufferance of severance of matrimony until the expiry of the “waiting period” (Idda) which was to last until the wife had completed three menstrual cycles or in case of her being pregnant, until delivery of the child. This period is, primarily, designed and emplaced to provide an opportunity for reconciliation between the spouses as per the Quranic injunctions, meanwhile wife is entitled to maintenance from the husband.  But it should be remembered that the Prophet (PBUH) pronounced “Talaq to be the most detestable before God of all permitted things“.  Thus, divorce being an evil; it must be eschewed as far as possible.

There are Quranic forms of Talaq, which are most compatible with gender justice, medical morality, human honour, and personal parity.  Talaq is an Arabic word its literal meaning is “to release” or “taking off any tie or restraint” or “removal of the restrictions of Nikah” and in Islamic jurisprudence it signifies the repudiation of marriage or dissolution of marriage i.e. divorce.  There are different modes of Talaq ordained in the Holy Quran.  There are two kinds of Talaq sanctified in the Holy Quran and approved by the Holy Prophet (PBUH) One Talaq-ul-Sunnat (revocable divorce) having two forms  Talaq-i-Ahsan (Most Proper Divorce) and Talaq-i-Hasan (Proper Divorce).  Two is Talaq-ul-Biddat (Innovative Divorce) which is irrevocable and pronounced thrice in one sitting and operates with immediate effect and better known as Triple Talaq.

Triple Talaq is a recognised form of divorce in the contemporary legal regime in India or Muslim Law as administered in India. Muslim jurists have perceived it as a novel innovation in Sharia Law.  It was not there in the initial two years of the lifetime of the first Caliph Abu Bakr and second Caliph Umar, the great.  But, subsequently, Triple Talaq was allowed exclusively in some special circumstances.  For example, when Arabs had conquered Egypt, Iraq and Syria etc, they found that women of these countries were more beautiful than those of their own wives.  Consequently, they decided to marry with them.

Consequently, this form of Triple Talaq is continued to enjoy spiritual and temporal legitimacy at one hand and judicial recognition on the other hand in India.  The jalopy of justice in any democratic dispensation is put on by the highest judicial establishment of the country and it was made possible in India when Supreme Court held scales even on ecclesiastical law in the case of Shamim Ara V. State of U.P (2002) that Holy Quran stipulates Talaq must be pronounced on cogent, plausible and reasonable grounds and prior to thereof spouses must appoint two arbitrators and they should make all efforts for reconciliation and resolution.  Having failed all efforts, Talaq shall come into effect. Therefore it can be rightly inferred therefrom that the apex court of the land has duly rejected the prescriptive functionalism of Triple Talaq and moved ahead to achieve the majesty of transformative constitutionalism.

The Islamic raison d’etre has never been to confer an absolute authority of Talaq upon a husband to be misused by him by uttering few words, which signify his intention of divorce.  But there should be a subjective element in the intention of husband with regard to divorce thought it is generally not there.  Therefore, Talaq-ul-Sunnat is regarded to be the divinely approved form of Talaq. It is called as Talaq-ul-Sunnat because it is based upon the tradition (Sunna) of Prophet Muhammad (PBUH).  Prophet always considered Talaq as an evil.  If at all this was to happen, the best formula was one in which there was possibility of reconsideration and revocation of the consequences of this evil.  Having cogitated upon, the Prophet recommended only revocable Talaq, whereby the evil repercussion and ramifications of Talaq do not become final at once as Talaq-ul-Sunnat is founded upon the bejewelled principles of natural law as it do contemplate the possibility of compromise and reconciliation between conjugal candidates.  Only this form of Talaq was in practice during the life of the Prophet.  This mode of Talaq is recognised beyond the Shia and Sunna dichotomy.

However, Talaq-ul-Hasan is also regarded proper and approved form of Talaq and has provision of revocation.  But the words of Talaq are to be pronounced three times in the successive periods of purity.  It is immensely important to note that the husband may revoke the first and second pronouncements either expressly or by resuming conjugal canopy of cohabitation and consummation and same tantamount to as if no Talaq was made at all.  But if third pronouncement in the third period of Tuhr (purity) is made, Talaq becomes irrevocable and marriage is repudiated and the wife observes Idda.

It is well-established fact that Talaq-ul-Sunnat is the most appropriate, cogent, meaningful, plausible and reasonable mode of repudiation of bridal bond sanctified and warranted by the Holy Quran.  Thus, law is the revealed will of Almighty Allah in classical Islamic theory and a divinely ordained system rather than a science of the positive law emanating from judicial tribunals.  However, the standards of religious law and the demands of political expediency do not go together and perhaps the arbitrary authority of the political pontiffs influenced the Muslims Ulema to adopt a discretionary divagation of ignoring rather than denying, though Islamic jurisprudence is functional jurisprudence resulting in the Islamic social engineering which has tantalised and galvanised the Sharia law in Egypt, Iraq, Morocco and Pakistan etc. wherein rigid dictates of traditional law and the demands of modern society have been reconciled through Islamic legislation and codification founded upon the Holy Quran and Hadith or Sunnah (Tradition), Ijma (consensus of juristic opinions), customs and usages and juristic deductions like Qiyas (analogy), Istihsan (preference), Istidlal (deductions by logic and reason), Ijtihad (interpretation) and Taqlid (The principle of strict adherence to the law as expounded in the authoritative legal manuals). And on this basis it would appear that Islamic jurisprudence could implement and preserve its fundamental and unique ideal of a way of life based on the command of God (Almighty Allah) in most practical and modernist terms.

But, unfortunately, the recent conglomerate of All-India Muslim Personal Law Board (AIMPLB) has stultified the entire agenda of reforms contrary to the expectations of the people of India.  But this turned out to be a damp squib.  It was expected of AIMPLB would take the most important decision of abolition of Triple Talaq and adopt a model “Nikahnama” (marriage contract)  based on equity, justice and gender parity as ordained in the Holy Quran.  But it has adopted a policy of procrastination and entire Muslim community put on tenterhooks.  This regressive and ridiculous practice of Triple Talaq is nothing but an exercise to sustaining primordial and parochial practices in the name of Islam to subjugate Muslim women that might generate revulsion among the Muslim masses beyond human control in times to come.  Therefore, massy reality must be attended at the earliest with dexterity and maturity by the AIMPLB.  Moreover, AIMPLB has lost an opportune opportunity of proving its own acceptability and credibility in a democracy because democracy demands decision with accountability and AIMPLB is accountable to the Muslims of India.  Although, AIMPLB is an organisation without any legal status but it has been recognised as the body to attend on religious affairs of Muslims who have pinned down their hopes in the collective wisdom of this body. At the same time, AIMPLB is faced with primordial perceptions and parochial pursuits of its members.  But it wields considerable weight among the Muslims and has been playing a role since its inception, which is being appreciated by all and sundry.

Therefore, it would be in the fitness of things that AIMPLB must address the issue of Triple Talaq, model Nikahnama, family planning, Codification of Muslim personal law and socio-economic backwardness of Muslims and issues and problems identified by the Sachchar Committee. The codification of Muslim Personal Law must be done as directed by the Holy Quran and Hadith to establish the unity, unanimity and ubiquity in legislative, executive and judicial actions in a secular state like India as enshrined under Articles 14, 15, 21, 25 and 26 of the Constitution of India. The issue of Triple Talaq must be resolved in conformity with the Islamic jurisprudence wherein ample scope of reform of Muslim law on this mode of divorce has been provided through ijma and taqlid.  Moreover, it should not be forgotten that Triple Talaq does not find any sanction whatsoever anywhere in the Holy Quran.

* Ph.D. (International Refugee Law & Human Rights), LL.M. (International Law & Human Rights), LL.B. (H) B.A. [(H)-Anglo-American English Literature], Assistant Professor of International Law, Faculty of Legal Studies, South Asian University-New Delhi-110021 I am immensely thankful to Prof. James C. Hathaway, University of Michigan-USA, for his highly valuable inputs and comments on the draft of this Article. I have introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, IHL and International Refugee Law.  Presently, I am pre-occupied with developing a course module Comparative Islamic Law in South Asia. I have been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall& Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA.

Disclaimer: The views expressed this article are that of the author alone and do not represent the views of the Lex-Warrier: Online Law Journal, OR its editors OR its managers.

The Surrogacy (Regulation) Bill, 2016: An Analysis

Pooja Kurian ((Student of Law, Alliance School of Law)).

Abstract

The Surrogacy (Regulation) Bill, 2016 is an attempt of the government to regulate the process of surrogacy in India. This bill contains several impactful measures which have been awaited for, since a considerable number of years. Though this bill intends to bring positive changes, it has not failed to become a quarry to the socio-legal hindrances prevalent in the society and thus facilitate them. This article aims to analyse the several aspects of this newly passed bill, in detail.

“For Robert Brown, all love begins and ends with motherhood; by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer an indivisible instinct of a mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Law’s turn to appreciate the dichotomy of divine duty, the split motherhood.”

– Geetha v. The Kerala Livestock Development Board ((2015 SCC OnLine Ker 71)).

INTRODUCTION

India has come forth to become the forerunner of international surrogacy and has become the most sought after destination for this purpose. Some consider it the billion-dollar industry of India while others question the morality of it. Despite the divided stand, commercial surrogacy has been legal in India since 2002 ((Available at http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71, last visited August 29, 2016)). Any surrogacy agreement between the parties, is based on free consent and meeting of minds in relation to a specific outcome and interpreted in consensus with the provisions of The Indian Contract Act, 1872. This act, exercises jurisdiction over all such agreements and contracts.But there never have been clear and codified laws in place regarding the practice of surrogacy.

The initial trigger for need of a legislation can be traced back to 2008 ((in the case of Baby Manji Yamada v. Union of India, [2008] 13 SCC 518)), where a Japanese couple had a baby girl through a surrogate mother in Anand, Gujarat. By the time of birth, the couple had separated and the baby was parentless and left dwindling between the legal systems of India and Japan. Although, the Hon’ble High Court of Gujarat, granted custody of the baby born out of surrogacy, to her grandmother after a long drawn legal battle. However, the baby was denied Japanese citizenship as surrogacy is not legalized in that country.

Similarly in 2012, an Australian couple who had twins through surrogacy, denied taking one of them because that baby was born with Down Syndrome ((Nidhi Gupta, “What’s Wrong with the Surrogacy Bill”, available at http://www.thehindu.com/thread/politics-and-policy/article9090866.ece last visited on August 15, 2016))and the child was again left without parents. In 2014, a woman died due to a procedure for harvesting eggs from her body as a part of an egg donation drive by a private hospital in Delhi. These incidents highlight the fact that the rights of a surrogate mother and child born out of surrogacy are neglected. Many public interest litigations have been filed in the Supreme Court of India on this issue. The 228th Law Commission Report had also suggested banning commercial surrogacy and promoting altruistic surrogacy for the disadvantaged married Indian couples ((SoumyaSwaminathan, “Why the Surrogacy Bill is Necessary”, available at http://www.thehindu.com/opinion/op-ed/why-the-surrogacy-bill-is-necessary/article9040755.ece last visited on August 29, 2016)).

On 24th August, 2016, the proposed draft Surrogacy (Regulation) Bill,2016 was passed by the Union Cabinet, which is expected to be shortly introduced in the Parliament. If passed, the new legislation will apply to all of India, except Jammu and Kashmir. This was done so, because the government of the day, was of the opinion that, absence of a proper legislation, has ledto exploitation of surrogate mothers. Thus, the main objective of this bill is to prevent commercial surrogacy and also protect the rights of the surrogate mothers, prone to exploitation and unethical practices.

FEATURES OF THE BILL

The salient features of the Bill can be summarized as follows ((S.W. Staff, “All you Need to Know about the New Surrogacy Bill”, available at https://www.scoopwhoop.com/All-You-Need-To-Know-About-The-New-Surrogacy-Bill/#.06jtqqnel last visited on August 29, 2016)):

  • It bans commercial surrogacy and only altruistic surrogacy will be allowed. Commercial surrogacy, along with other offences will garner a jail term of at least 10 years and a fine of upto Rs.10 lakhs.
  • Altruistic surrogacy will be allowed for Indian nationals only. Foreign nationals and also NRI’s or OCI holders aren’t allowed.
  • Single parents, homosexual couples, live-in relationship couples will be denied altruistic surrogacy.
  • Parents with biological or adopted children cannot undergo it. But, couples with proved infertility will be allowed.
  • Only ‘close relatives’ can stand as candidates for surrogacy.
  • The couple cannot pay the surrogate mother in any mode except her medical bills.
  • There will be specific guidelines governing hospitals and clinics allowing surrogacy.
  • The parentage of the child born through surrogacy will be made legal and transparent.

The new draft bill permits only hetro-sexual couples who have been legally married for 5 years or more and have proven infertility to opt for surrogacy. It also stipulates that surrogate mother should be a close relative. She’s also supposed to be married and supposed to have a healthy child prior to becoming a surrogate mother. Thus, the draft bill approved by the cabinet seeks to provide checks as to who is an eligible candidate for surrogacy and also aims to restrict commercial surrogacy. The bill, also attempts to put a check on the prevalent exploitative, but thriving surrogacy industry.

ANALYSIS

However, these conditions are arbitrary and unfair as most of the women who indulge in surrogacy are either poor or illiterate and are forced into it by their families. The inferior status of women is deteriorating the cause. But, it cannot be undervalued, that there areseveral poverty-stricken women who choose surrogacy to battle this vicious large-scale social problem. Women rent their womb to earn money, to provide a better life for their children, unlike the life of poverty they have lived. They undergo emotional and physical stress of carrying a child in their womb for nine months, the pain of labour and finally are denied the joy of motherhood when they have to part with the child. Apart from the mental and physical trauma, the aspect of this bill which states that a woman who has been a surrogate mother once, cannot go through with it again, also exacerbates the situation for such women. Thus, for some needy women, commercial surrogacy, which had become a means of livelihood, has been snatched away with this proposed law.

The Preamble of Indian Constitution states that, India is a Sovereign, Socialist, Secular and Democratic Republic and secures Equality, Justice and Liberty for all. Article 14 of the Indian Constitution, guarantees equality before law and equal protection of law to all people. Equivalently, Article 21 of the Constitution of India, guarantees protection of life and personal liberty for all.

Thus, the restriction of allowing only married Indian couples to undergo surrogacy and denying other people the same right only on basis of nationality, marital status, sexual orientation and age does not seem to fulfill the test of equality, or of it being a reasonable classification ((Article 14 of the Indian Constitution)).

The Right to Life also includes the right of reproductive autonomy, which is inclusive of the right to procreation and parenthood. The state does not have the authority to interfere in this fundamental right. It is upon the person and not the state to decide the modes of parenthood, be it naturally or through surrogacy ((Article 21 of the Indian Constitution)). Thus, constitutionally, state cannot interfere and the bill is also violative of the right of productive autonomy as stated in the case of B.K. Parthasarathi vs Government of Andhra Pradesh ((2000 (1) ALD 199)).

The state cannot question a married couple’s decision on the mode of parenthood or the number of children they wish to have. Therefore, the rule of being unable to undergo surrogacy, if they already have a surrogate child or an adopted child is unconstitutional as well. Parenthood should be considered a privilege which should be made equal for all, irrespective of anything.

Furthermore, infertility should not be a compulsory pre-requisite to undergo surrogacy. Ours is a democratic state, which means that the people have an inevitable role in the law making process. The people must have an opportunity to voice their opinions instead of being discriminated against. And, this discrimination perceived to have creeped in knowingly or unknowingly, would have wider legal repercussions to it.

The most attractive side of commercial surrogacy, prior to the proposed Surrogacy (Regulation) Bill, 2016 was the financial aid that the surrogate women would receive. The draft bill envisages that a surrogate mother cannot be paid in any manner except the medical bills, which again negates the most fruitful aspect of commercial surrogacy and the very main reason poor women undergo it.

Another positive change that this proposed law aims to bring is, the clarity in legitimacy of the children born through surrogacy. Also, because of the several limitations imposed, it is likely that childless parents would go in for adoption.

It cannot be overlooked, that the clinics which assisted in commercial surrogacy earned more than the surrogate mothers. A positive and much needed law that the bill has come up with is that, there would be specific guidelines for such hospitals and a National Surrogacy Board chaired by the Health Minister and several State Surrogacy Boards would be established at the Central and State level respectively ((Available at http://ehealth.eletsonline.com last visited on August 29, 2016))to oversee and supervisethe enforcement of the rules.

Surrogacy has been prevalent in India since quite long and now when the need has arisen, the government cannot neglect going into the specifics and just eliminating commercial surrogacy altogether. Instead, the government needs to suitably regulate it thereby streamlining the process and avoid abuse.

The Juvenile Justice (Care and Protection) Act, 2015 allows the court to give a child in adoption to a foreign national, regardless of his/her marital status ((Available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=134513 last visited on August 29, 2016)). Thus, if in the facet of adoption, foreign nationals are included, the proposed law should incorporate foreign nationals in respect to surrogacy also. A country which permits inter-country adoptions should not restrict inter-country surrogacy either.

The government passed the bill to prevent commercial surrogacy. But, it has failed to look into the matter from the surrogate mother’s point of view. The government could have undertaken measures to interact with these economically under-privileged women, who undergo emotional and physical trauma and willingly opt for surrogacy only for the sustenance of their family, knowing the implications of the proposed law on such women, would have added a more humane perspective to it.

Invoking penal provisions has not served the purpose, but it has only encouraged illegal means.Likewise, even though commercial surrogacy would be penalized, it will only risk the flourishment of an illegal and parallel surrogacy industry.

CONCLUSION

Before the passing of this proposed law, it needs to be extensively scrutinized and an appropriate mechanism has to be come up to oust all the loopholes, and finally enact a democratic law governing surrogacy, which has been a wait for all, for the past ten years. An arbitrary and unjust law should not come into existence, rather the most righteous and well-suited legislation should be evolved and manifested, incorporating liberal sensibility.

The “monte confurco” case (Seychelles v. France) prompt release

Jayant Mudgal, Student of Law, Amity Law School-I

Facts ((Paras 27-42 of the Judgment, Text of the judgment can be found in Digest of International Case Law, UN Oceans Affairs and Law of the Sea, pg. 197, United Nations Publications (2007).)).

Monte Confurco, was a fishing vessel, which had flag of state of Seychelles, and was registered by a Seychellian company in 2000. It had license to engage in fishing in international waters. On August 27, 2000 it left Port Loius in Mauritius, for fishing in the Southern Seas. It had a Spanish national as the ships master. While fishing, the entire issue was focused on whether or not it was inside the Exclusive Economic Zone (hereinafter referred as EEZ) of the French territory of the Kerguelen Islands or not. On November 2000, it was surrounded by French Navy, and French surveillance frigate, because it was in the French Southern and Antarctic Territories ((French and Southern Antarctic Lands, Available at http://www.taaf.fr/The-French-Southern-and-Antarctic-Lands (accessed on 25th March 2016).)). A process verbal of violation ((It is a French term, which means a written report which is signed and which states the statement of facts))was drawn up, whereby it was written that the ship did not announce its entry into the EEZ and it has not disclosed the tonnage of fishes it was carrying. The process verbal further stated that it did not obtain prior authorization for fishing in EEZ from any French authorities also. On the same day, the ship was escorted under French surveillance to Reunion, an insular region of France located in Indian Ocean. The Regional and Departmental Director of the Maritime Affairs of Reunion drew up three process verbaux of seizure, and also moved to the court of first instance at Saint Paul, for confirmation of arrest of the vessel. The Bond for release of vessel was decided as 95,400,000FF plus the judicial costs ((Valuation of the Bond is available on para. 34 of the judgment)).

On 21 November 2000, the master of the vessel was charged and placed under court supervision along with taking away of his passport. The court of first instance however set the bond at 56,400,000FF ((Valuation of the Bond is available on para 39 of the judgment))payment of which will allow release of the vessel and the Master.

The court of first instance held as follows that vessel was in EEZ of Kerguelen Islands without prior notification or authorization and without any intimation to the district head of the nearest island. The vessel was found in possession of 158 tons of toothfish. This raised a presumption that the catch was unlawfully fished from the EEZ of Kerguelen Islands ((Para. 37 of the judgment)).

The law violated was the French law applicable to EEZ, which is as follows,

  1. Article 3 of Law No.83-582 of 1983
  2. Article 2 and 4 of Law No.66-400 of June 1966
  3. Article 142 of Code of Criminal Procedure

Article 3 states that competent authority can seize the vessel or boat that was fishing in contravention of laws and regulations, and it has to prepare a process verbal also which will be handed over to the Maritime Affairs department. The competent authority within 72 hours of seizing the vessel has to submit the process verbal to court of first instance. Article 2 and 4 provide a prohibition from fishing or exploitation of marine environment without notification to French authorities and also to declare the tonnage of fish held onboard. Article 4 gives penalty of 1,000,000 francs, in case there is failure to notify the entering into EEZ or to declare the tonnage. Article 142 of Code Criminal Procedure is essentially dealing with provision of furnishing bond, and guarantee ((para 43-45 of the judgment)). These provisions were also in contention in one of the recent judgment of Grand Price case ((Belize v. France List case no.8 2001-04-20 Available at http://www.ecolex.org/elis_isis3w.php?rec_id=000099&database=cou&search_type=link&lang=eng&format_name=@EFALL&page_header=@EPHAV1 (accessed on 25 March 2016).)).

Arguments of the parties

Applicants, the state of Seychelles has applied to ITLOS under Article 292(2) of United Nations Convention on Law of Sea (UNCLOS) to ((United Nations Convention on law of sea, Text available at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (accessed on 25th March 2016).))have the release of the vessel from France. They argued as follows ((para. 47-50 of the judgment));

  1. On November 7, 2000 they were outside the French waters and were not anywhere near the EEZ of French Kerguelen Islands.
  2. In order to be outside the CCAMLR ((Convention for Conservation of Antarctic Marine Living Resources 1982, Available at http://www.antarctica.gov.au/law-and-treaty/ccamlr (accessed on 26th March 2016).))region, the shortest possible route was taken by going through the EEZ, to finally reach William Banks (located on the South east of the Kerguelen islands)
  3. The ship was unable to notify its entry since the fax machine on board was broken and that fact has also been agreed by the French surveillance team that apprehended the ship on seas.
  4. There was no trace of preparation for fishing on the decks, and further the team found empty and wet factory which had inoperative freezing tunnels. Even the 158 tonnes of toothfish found was at stored at a very low temperature.

Respondents, the state of France ((Para 51-54 of the judgment)), has argued in as follows

  1. Breakdown of fax machine is no excuse for not notifying the entry in EEZ since the vessel was equipped with radio-telephone equipment and also INMARSAT station capable of sending and receiving telephone messages.
  2. The location on November 7, 2000 was inside the EEZ waters of French jurisdiction and the vessel could not have covered so much distance in the time indicated by Applicant, and they alleged that the vessel was in EEZ water of Kerguelen islands for many days before being caught.

Question of Jurisdiction ((para 56-60 of the judgment)).

Applicant states that Respondent have failed in their duty under article 73 of UNCLOS, and the ITLOS has jurisdiction under Article 292 of UNCLOS to hear the matter. Article 73(1) states that a coastal state can exercise its sovereignty within EEZ by taking measures of boarding, inspection, arrest and judicial proceedings for the purpose of enforcement of the provisions of its laws and UNCLOS. Article 73(2) also further states that the detaining state, should have a prompt release of the vessel of its crew. Under Article 292(3) it is given that without delay the Tribunal has to deal with the matter of the release of the vessel and the crew. Applicant have stated that by putting the master of the ship, under court supervision, it is violation of his personal right, it is defacto detention and Seychelles was not given proper notification of the arrest of the vessel, as required by Article 73 (4) of the UNCLOS which requires the coastal state to notify the flag state in case of the detention the vessel of the latter. But Respondent by relying on Camouco case ((Panama v. France, Judgment of 7 February 2000, para 59, Available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_5/Judgment.07.02.00.E.pdf(accessed on 26th March 2016).))of ITLOS stated that in proceedings under Article 292 of the UNCLOS, violations of article 73 are not permissible to be raised.

Judgment: Majority Opinion

Firstly, the ITLOS dealt with Article 73(2) of UNCLOS, which provides as follows, verbatim text has been quoted

Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.

The bond amount of 56,400,000 FF was said by the Applicant to be unreasonable, and the Respondent emphasized vehemently on how the amount was reasonable. ITLOS found that the amount was not reasonable in the light of the facts of the case. Majority part of the judgment was discussing the issue of release of the vessel and the crew, and what amounts to reasonableness of the security. It was stated by the tribunals that Article 73 is a fair balance between rights of the coastal state (detaining state) in enforcement of their laws and to ensure compliance with their laws, and on the other hand between rights of the flag state to secure the safety of their vessel and crew by, asking for a prompt release ((para 70 of the judgment)). The tribunal will see multiple factors in deciding the reasonableness of the bond, and as held in Camouco case ((Supra fn.14, para 69)), it was held that some of the non-exhaustive factors to be seen are,

  1. Gravity of the alleged offences
  2. Penalties imposed or imposable under the laws of the detaining state
  3. Value of the detained vessel and Cargo seized
  4. Amount of bond imposed by the detaining state and its form

By relying on these factors, the court stated that though because of the INMARSAT satellite phone and other communication devices, the vessel could have notified the entry, but Tribunal does not rely on the Saint Paul’s court of first instance judgment, which stated that there is a presumption that the vessel had done illegal fishing. There is no record or evidence to show that all the fishes were illegally obtained or that they were caught from the EEZ area. Though the offence concerned was with respect to conservation of natural resources, however one cannot presume that the catch, in its entirety or substantial portion of it was from the EEZ area ((para 88 of the judgment)). Even the valuation done by the Respondent of the vessel was not seen to be accurate. So the amount was reduced substantially to 18,000,000FF ((For evaluation of the security amount see para 93 of the judgment)). It was further held by ITLOS that France had failed in its duty under Article 73(2) of UNCLOS, and order immediate release of the master of the vessel and the vessel, upon bond or other financial security being deposited.

Critical Appreciation

The majority judgment has been criticized, since though it stats that Article 73(2) is for the purpose of reconciling conflicting claims, but does the judgment actually do so is a matter of analysis. Though the judgment clearly states that ITLOS does not sit in appeal against the domestic court’s jurisdiction but still the question of determining unreasonableness is based on the finding of the domestic court. There has been difference opinion by certain judges, in whose opinion the majority hasn’t been able to appreciate the situation correctly. Judge Anderson, in his dissenting opinion stated that judgment should have been in favor of France, and the facts should have been seen in light of coastal state’s duty to protect their resources, to curb illegal fishing and costly surveillance equipments ((Dissenting Opinion of Judge Anderson, Available at http://www.worldcourts.com/itlos/eng/decisions/2000.12.18_Seychelles_v_France.pdf(Accessed on 26th March 2016).)). From an environmental perspective this seems to be a good interpretation, and an incentive for all countries to comply strictly with the law of the sea, and to preserve the sanctity and respect of the jurisdictional limits of other states. One more criticism of the judgment is that the tribunal has over looked the role of bond in the enforcement process of the laws of the detaining state (i.e. France), since bond is the guarantee that the amount of fine that the court will eventually impose is recouped ((Alex G. Oude Elfernik, Donald Rothwell (ed.) Oceans Management in 21st Century: Institutional Frameworks and responses, pg. 286 Martinus Nijhoff Publishers (2004).)). The same argument of the bond amount being the maximum was taken up in Volga case by Australia ((Russian Federation v. Australia ITLOS Case No. 1, ICGJ 344 (ITLOS 2002) Available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_11/Judgment.Volga.E.pdf (Accessed on 26th March 2016).)). It also happens that after the release of the vessel and master, the coastal state is in a disadvantaged position since the fact that the ownership of the vessel, if actually conducting the business of illegal fishing, is often concealed by layers of different complex corporate structures, therefore, it becomes very difficult for coastal state to recoup the costs, since the real ownership remains hidden ((Supra fn.20, p. 287)).

Similarly, this judgment has been criticized by Judge Mensah, as to how the ITLOS has not appreciated correctly the facts. In his dissenting opinion he quotes that majority opinion proceeded on the basis that the information before the court was not consistent with information before the tribunal ((para 86 of the judgment)). However, it is true that international tribunals have a wide discretion in assessment of evidence, but this also shouldn’t be stressed too far ((Tafsir Malik Ndaiye, Rudiger Wolfrum (ed.) Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas Mensah p.342, BRILL (2007).)).

Concluding, it can be said that this judgment is one which is criticized by academic community, and it needs to be seen that whether ITLOS will in future take a different route or not, from its current stance.

Fundamental rights and frequencies: Right to broadcast

Chintan Nirala, 4th Year, B.A., LL.B(HONS.), Faculty of Law, Allahabad University

Frequencies or Signals are an indispensable requirement for Communication, Media, Entertainment, or Technology. In other words, it is sine qua non for CMET. They may be unsuccessful in serving their purpose without the involvement of frequencies. It is the part of technology through which Entertainment, Media or Communication executes their whole process. With emerging audio-visual telecommunication and social media involving frequencies so as to broadcast, this case came before the court as to decide on the question of the right to broadcast bearing serious questions regarding the fate of future policies to be adopted in India.

Game of cricket has been a great source for entertainment in India. With growth of technology, the broadcast of matches shifted from audio to audio-visual telecommunications involving frequencies for live telecast, the question as to freedom of broadcasting became inevitable.It was already established that providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution along with the right to acquire information and to disseminate it, the question regarding nature of the property with respect to airwaves needed to be answered. And if there was a right then what should be the regulatory framework with regard to the exercise of such right. Court also analyzed the claim of monopoly of the Government and its agencies over the field of telecast and broadcast in India. Its decision did not only answer these questions but also decided the future course of Communication, Media, Entertainment, and Technology in India.

During 1990’s, with India going into transitional stage with the technological boom in the country The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal (CAB) with Cricket Association of Bengal and others v Union Of India and others (([1995]2 SCC 161: AIR 1995 SC 1236. Justice Sawant wrote the principal opinion in Cricket Association. He spoke for himself and Justice Mohan. Justice B.P. Jeevan Reddy wrote a separate, but concurring opinion.))gave a landmark judgement regarding the telecasting and broadcasting vis-a-vis airwaves or frequencies.

In this particular case, Cricket Association of Bengal ((Hereinafter CAB))hosted a six nation international cricket tournament in November 1993 under the name and style of ‘Hero Cup Tournament’. CAB agreed to Doordarshan creating the host broadcaster Signal and also granting exclusive rights for India without the Satellite Television Asia Region ((Hereinafter Star TV))getting it, subject to the payment of eight hundred thousand U.S. dollars. But on the other hand, Doordarshan offered to pay the sum of one crore only. Consequently, CAB changed its stance and decided to sell the worldwide television rights to Trans World International ((Hereinafter TWI.)), a foreign television company. However, with regard to the interest of the viewers in India, CAB made TWI agreed on the proposition of making co-production with Doordarshan. Doordarshan informed CAB that the proposal was unacceptable as it was not willing to take signals from TWI, a foreign company. In the absence of any agreement between CAB and Doordarshan, the Department of Telecommunication addressed a letter to Videsh Sanchar Nigam Limited ((Hereinafter VSNL.))that up-linking facility for telecasting by TWI should not be provided. Aggrieved by the developments CAB approached Calcutta High Court, by way of writ petition, praying that direction be given to provide telecasting and broadcasting facility of all the matches by agency appointed by CAB. An interim order of injunction restraining the respondents from preventing telecast was granted. The High Court expressly opined that there was already an implied grant of permission. After expressing the said opinion, the direction to consider was a mere formality and of little significance. As a matter of fact, the Secretary was directed to grant the license in so many words thus leaving no discretion in him to examine the matter in accordance. It became an empty formality. In the other case, the organizers approached directly the Supreme Court through a writ petition. When this decision came before the Supreme Court, the matches had been played and both tournaments were over. Broadly, the Court was asked to rule upon, inter alia, whether Governmental agencies such as Doordarshan could claim a monopoly over airwaves or alternatively or, did the organizer or the producer of the event have the right to select a broadcasting agency of his own choice?

The principle issues involved that the court addressed werethe scope of Article 19 (1)(a) vis-a-vis ((Art.19(1)(a)- All citizens shall have the right to freedom of speech and expression.))broadcasting and the extent of government control over frequencies and broadcasting. The court also considered the nature of the regulatory framework body governing broadcasting.

The scope Article 19(1)(a) with regard to broadcasting can be easily comprehended with the statement of Justice P. B. Sawant which deserves to be quoted:

“The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19 (1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, Viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restriction imposed on the right to freedom of speech and expression under Article 19 (2) of the Constitution ((Cricket Assn. case n(1) at p.124(i)(ii).)).”

The Court held that undoubtedly, broadcasting came within the ambit of the protected freedom under Art. 19(1)(a). It was observed by the court that the airwaves or frequencies involved in the telecast and broadcast constitute public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since, the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any other public property.

CAB and BCCI through their learned counsel contended that the game of cricket provides entertainment which in turn is an expression within the ambit of freedom of speech and expression guaranteed under Art.19(1)(a). Right to disseminate and receive information is a part of the right guaranteed by Art.19(1)(a). Telecasting a cricket match is a form of dissemination of information ((ibid at p.148(e).)). On the other hand, it was argued by State that this was a purely commercial matter, and therefore Art. 19(1)(g) was not attracted ((ibid at p.149.)). It is notable that the Court rejected this argument primarily on the basis of the fact that sport was a form of expression, and dissemination of information about sport was also a part of the freedom of expression; and secondly, that the character of the telecasters, i.e. the BCCI and the Cricket Association of Bengal, was that of non-profit organizations seeking to popularize the game of cricket through the best possible methods. Indeed, the Court expressly distinguished the case of a purely profit-making organization, and an organization whose primary function involved an incidental inflow of profits.

The Court framed the debate in the language of an Article 19(1)(a) freedom of speech and expression violation, which was sought to be justified by recourse to Article 19(2). While deciding it took into consideration Odyssey Communications Pvt. Ltd. Case, It was held that the right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19 (1) (a) which can be curtailed only under circumstances set out under Article 19 (2). Similarly, in S. Rangarajan v. P. Jagjivan Ram & Ors., (([1989]2 SCC 574.))it was held that the-freedom of speech under Article 19 (1) (a) means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and, their right to propagate or publish opinion. The communication of ideas could be made, through any medium, newspaper, magazine or movie. But this right is subject to reasonable restriction in the larger interests of the community and the country set out in Article 19 (2). Article 19 (1) (a) includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution ((See Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors., [1994] 2 SCC 434;  In Life Insurance Corporation of India v. Professor Manubhai D. Shah [1992] 3 SCC 6371.)).

Several Broadcasting laws of other countries were taken into account especially of European countries. It was observed that Constitutions of most of the countries of the Western Europe cast an obligation upon their Government to promote broadcasting freedom and not merelyto refrain from interfering with it. The Constitution of Germany expressively involves right to broadcast within the ambit of freedom of speech and expression. The main attributor for this development has been Article 10 of the European Convention on Human Rights which guarantees freedom of expression to all the citizens of the member countries and refers specifically to radio and television. It says:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and import information and ideas without interference by public authority and regardless of frontiers.

Para 11 of the Declaration of the Rights of Man adopted by the National Assembly in 1789- affirmed in the preamble to the Constitution of the Fifth Republic (1958) and treated as binding on all branches of the government guarantees freedom of dissemination of thought and opinion. This provision is regarded as the child of the French Revolution and has greatly influenced the development of broadcasting freedom in that country.

In Germany, Article 5 of the Basic Law of 1949 states, “Every one shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources.”

Broadly speaking, Broadcasting freedom comprises four facets in itself namely,
(a) Freedom of the Broadcaster which should not be understood as merely an immunity from government intervention but must be understood as a freedom to safeguard free speech right of -all the people without being dominated either by the State or any commercial group.

(b) Listeners/Viewers Right Broadcasting freedom involves and includes the right of the viewers and listeners who retain their interest in free speech. It is on this basis that the European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground of free speech. It has been already held that freedom of expression includes the right to receive information and ideas as well as freedom to impart them.

(c) Access to Broadcasting; and

(d) The Right to establish private Broadcasting stations ((Cricket Assn. case n(1) at p.179.)).

Speaking of clause 2 of Article 19, reasonable restrictions are placed upon freedom of speech and expression so as to conceive them in national interest as well as in the interest of the society. The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of grounds, viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the interest of society.Therefore, the fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2).

Justice Sawant observed that the right to free speech includes right to educate, inform, and entertain thus including the right to be educated, informed, and entertained subject to restrictions under Article 19(2). Right to communicate through any media was clearly recognized by the Court ((ibid at p.11.)).However, there is little ambiguity related to the question that whether there is a fundamental right to broadcasting or not. At one point, it was observed that the case did not involve the right of private broadcasters ((ibid at p.17))on the other hand it was also observed that right to telecast is implicit in the right to educate, inform, and entertain, which is an extension of the freedom of speech and expression. Ultimately, it is hard to consider keeping in mind the interpretation of Article 19(1)(a) done by the court that the right to communicate does not include right to broadcast ((See Union of India v. Association for Democratic Reforms, AIR [2002] SC 2112 at p.44.)).

Justice Sawant observed that CAB and BCCI could telecast their matches using a method or agency of their choicebut subject to the underlying character and objectives. In the cases before the Court, the tournament organizers were professional sporting bodies that promote cricket. They did not intend, Justice Sawant assumed, a large profit from telecasting the matches. They would use proceeds from the telecast contracts to develop the sport. Justice Jeevan Reddy, on the other hand, was unwilling to recognize any explicit constitutional right to telecast for private entities, including the tournament organizers ((Cricket Assn. case n(1) at p.94 and p.97(3)(b).)).

While emphasizing more on the current question Justice B.P. Jeevan Reddy observed that airwaves must be used for advancing public good. No one has a right to utilize them at his choice and pleasure with sole motive of making profit. The right of free speech guaranteed by Article 19 (1) (a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. It is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens ((ibid at p. 226(b).)).They must, therefore, be utilized only for the public good. For this reason, there is no fundamental right under article 19 (1) (a) to impart information using these frequencies. But since Justice Sawant’s opinion was in consonance with Justice Mohan, the third judge in the case, it represents the Supreme Court’s majority view. Despite the ambiguity in his language, Justice Sawant recognized a fundamental right to impart information and communicate through audio and visual means of one’s choice is very significant. This must surely mean that there is a fundamental right to broadcast even if its scope depends on the underlying entity exercising it.

This was indeed a leap forward in India constitutional law. The Supreme Court already declared in Romesh Thappar and Brij Bhushan that article 19 (1) (a) includes the freedom of the press which includes the right to print, publish, and circulate news and opinions without government interference ((Romesh Thappar v. The State of Madras, AIR 1950 SC 124: (1950) SCR 594; Brij Bhushan and Anr. V. The State of Delhi, [1950] SCR 605.See also Odyssey Communications Pvt. Ltd. v.Lokvidyan Sanghatana and Ors., AIR [1988] SC 1642; Bennett Coleman & Co. and Ors. V. Union of India and Ors.,[1973] 2 SCR 757; Indian Express Newspapers(Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors., [1986] 159 ITR 856(SC).)). Thus, when broadcasting emerged as an important expressive medium, it was only fair for the Supreme Court to extend to provide broadcasting with similar cover. A denial of free speech in broadcasting would have caused an unhealthy constitutional controversy. A person would have a fundamental right to say, write, and publish something, but not to telecast or broadcast it. That position would have been unfair and unjust.

The second issue which was raised was regarding the claim of monopoly by Doordarshan over airwaves. In India there has been monopoly of broadcasting/telecasting in the Government which was backed by the Section 4(1) Indian Telegraph Act of 1985.Further, the Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. The power of the Government to license and to pre-censor under the respective legislations has to be exercised in conformity with the provisions of Article 19(2).

In this context the Court observed:

In a democratic polity, neither any private individual, institution or Organisation nor any Government or Government Organisation can claim exclusive right over it. Our Constitution also forbids monopoly either in the print or electronic media((Cricket Assn. case n (1) at p.48)).”

It was contended by the Government in favor of monopolization  that as to prevent the concentration of the frequencies in the hands of the rich few who can information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. But at the same time the claim to monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably denied an access to broadcasting or the Governmental agency claims exclusive right to prepare and relay programmes ((ibid)). In other words, if the Government is vested with an unbridled discretion to grant or refuse to grant the license or access to the media, the reason for creating monopoly will lose its validity. A monopoly over broadcasting, whether by Government or anybody else, is inconsistent with free speech right of the citizens.

Justice Sawant held that the Constitution forbids monopoly in either print or electronic media. Though, he was of the view that if private broadcasters acted irresponsibly it would be impossible to repair the damage ((ibid at p.13)). But, he also countered that there are several regulatory provisions to handle such a situation. The judge seemed troubled that the government enjoyed virtually unbridled discretion to grant or refuse a broadcast licence. This situation could result, he warned, in the government suppressing the free speech right, instead of protecting it. Justice Reddy opined that both frequencies and radio spectrum are public property. Government control over the broadcast media effectively means control of political party in power which is again harmful for the free speech right ((ibid at p.90)).

Justice Sawant observed that frequencies being a public property must be used in the best interest of the society and for this purpose, a central agency could either establish its own broadcasting network or it could license private users. Because of the costs involved only few can own frequencies but to overcome this problem the fairness doctrine was evolved by U.S. Federal Communications Commission likewise for Indian scenario, a similar arrangement is available in the form of Press Council. Thus, Justice Sawant, while endorsing the public nature of frequencies, clearly indicated that private citizens and entities could also utilize them. Justice Reddy however do not trusted Private Broadcasters for this purpose reason being their acts motivated by earning profits. He was in the favour of establishing a public broadcasting corporation that would use the frequencies for public good.

Justice Sawant in the summary of conclusions issued order to the Central Government. He directed to take immediate steps to establish an independent autonomous public authority to control and regulate use of airwaves or frequencies representing all sections and interests of the society at large. Justice Reddy, too, favouring Justice Sawant but prescribing wider role. He observed that only a statutory corporation could ensure fair and balance presentation of news and public issues ((ibid at p.40.)).

Summarizing, the court held that air waves or frequencies are public property and must be controlled and regulated by a public authority in the interest of public. Since, airwaves being a public property, there is an inbuilt restriction on its use as in the case of any other public property. Accordingly, while an individual has a right under Article 19(1) (a) to have an access to telecasting, this right is subject to the limitation on the account of the use of public property i.e. Article 19(2). The airwaves involved in the exercise of the right can be control and regulated by public authority even on the grounds not strictly covered under Article 19(2). The Court also directed to take immediate steps as to establish an independent autonomous public authority. The provision for the Prasar Bharti(Broadcasting Cooperation of India) seems to be taking care of this issue.

Often, this case is understood as an exception to freedom of speech and expression which can be created on grounds other than those in Article 19(2). It should be understood clearly that the Court was not adding any exceptions to those specified in Article 19(2). It was on the other hand laid down propositions as to restrictions on the use of airwaves owing to its technical nature and being a public property. Considering the importance of right to freedom of speech and expression, it should not be viewed as a door for creating new inroads to the right.

The rights and the wrongs of death and life

Arpitpushp Chaturvedi and Utkarsh Jain

The paper we have written attempts to explore the dilemma and irony surrounding the section 309 of the Indian Penal Code. The section deals with the criminalization of attempt to suicide. Our paper discusses whether section 309 of the IPC should be unconstitutional, thus, indirectly granting a right to death or whether indeed life as given to us by god should be preserved as long as it can be. We write the paper in a form a judgment based on a hypothetical fact situation, about the protagonist being a suppressed lower caste laborer who is subjected to humiliation and injuries when he protests against the local landlord and decides to immolate himself in the market but is saved and now faces charges under section 309, and a newspaper article which concludes our opinion and reflects on the judgment. The paper starts with the chief justice’s judgment as a part of the two judge’s bench of the Supreme Court of India wherein he starts with describing the fact situation briefly. He declares section 309 of the IPC to be unconstitutional when read with the articles 14 and 21 of the constitution. The second part consists of the dissenting judgment which lays down the fact that suicide is indeed a crime and section 309 is not unconstitutional as the state has a positive duty to preserve life and its dignity. The dissenting opinion also borrows from various religious and moral arguments proving that the state has a duty to protect life and anything contrary of section 309 would be unconstitutional. The third part of the paper is a newspaper article which analyses the hypothetical judgment and lays down the conclusion of the paper. The article argues that suicide cannot be de-criminalized except in the rarest of rare cases where it has been established by the medical fraternity that a human being is totally incapable of any improvement and is in a permanent vegetative state and has previously showed an intention to allow euthanasia. In all other case, we argue, that suicide is an immoral and weak act and should be punished so as to deter people from destroying the sanctity of life.

Please note that, all the names used in this hypothetical case is imaginary and have no connection with anyone in the real life.

Statement of Motivation

The value of academic literature on areas of immediate relevance like Suicide shouldn’t be underestimated. However, rarely do we find such literature making its way to the Courtroom. A probable reason is that this literature acts outside of the field of Judicial Language. It is this reason that inspired us to conceptualize a research paper in the format of a Judgment. Not only does this put across out vision of such hypothetical judgments being realized in reality, it also acts to reduce the threshold of ‘acceptance’ of such work, where it is most needed today, the Courtroom.

“It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation ((Fedden, H. Romilly, Suicide, A Social and Historical Study, Peter Davies, London (1938), page 42)).”

HYPOTHETICAL CASE

Hari K v. Union of Hindusthan

In the Supreme Court of Hindusthan

Sharma C.J., Mathews J., Raza J.

September 15, 2015

For reference: S.309 IPC: Attempt to commit suicide: Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for term which may extend to one year [ or with fine, or with both].

Sharma C.J, Mathews J.: These appeals have been brought before us in light of the judgment of the Uttara Pradesham High Court which passed an order of conviction against one Shri Hari who had attempted to commit suicide through self-incineration on the 12th of August, 2013 punishable under Section 309 of the Indian Penal Code, 1860. The relevant facts have been summarized hereunder.

The appellant, Hari aged 20 is a resident of village ‘Jhansi’ in the state of ‘Uttara Pradesham. He used to work as a daily wage laborer under one wealthy Parsi landlord. It has been established that the Parsi landlord was the reason for gross exploitation of daily wage laborers in that area for a decade or so. These laborers being poor and lower caste Hindus were also exploited by the Brahmin priests in the area.

Hari had seen both his parents flogged and subsequently killed in public in front of his eyes a few years ago. On Monday, 12th August, 2013, an inspired Hari and his friend Raj decided to protest against the usual discrimination that they were subjected to, driven on by their fellow laborer community. Instead of paying heed to their demands, an employee of the landlord, Josh along with a few high ranking Brahmins publicly humiliated and beat up both Hari and Raj while a huge crowd formed around. Raj later succumbed to injuries on his head and chest.

That evening, according to sufficient eyewitness reports, Hari went to the local ‘Subzi mandi’ (Vegetable shops) and borrowed a can of kerosene. He then proceeded to the Chowk, covered himself with the inflammable liquid and set himself on fire whilst shouting slogans against the Brahmins and the Parsi landlord. He was immediately mobbed and the fire was extinguished. He suffered second degree burns covering about 35 percent of his body. We are to decide on whether he should be charged with attempt to suicide or not.  

Judgment:

  1. It is rather shocking that this is the fifth such incident in two months that has cropped up. It is indeed of utmost seriousness that young people like Hari are burning themselves because of discrimination based on caste and creed. According to me, such cases of self incineration can be distinguished from cases of ordinary suicide ((Encyclopedia of Crime and Justice, Vol. IV, (1983 Edn), p.1521, Intentional taking of one’s life))based on the following factors:
  2. The element of altruism ((Emile Durkheim, Suicide (Routledge 2005) [hereinafter A Study in Sociology]; also look at: altruistic suicide: suicide for the benefit of others in the society.))in such self incinerations,
  3. External coercion from the society leading to a constructed ‘mens rea ((Guilty mind, Elizabeth A. Martin, ed. (2003). Oxford Dictionary of Law. Oxford: Oxford University Press.))’,
  4. The problematic nature of the process of wounding those most in need of help and
  5. The belief that imprisonment as described in s.309 is an end in itself thereby ignoring the root cause of such incinerations.
  6. Altruistic suicide occurs because of a deep integration of a person in the society ((Robert Pape, Dying to Win (Random House 2005), p.174))because of which there comes a sense of accountability and responsibility in oneself towards the society. I have observed a similar situation in this case where the society of daily wage laborers were all collectively against the Parsi and Brahmin establishment and rose together in protest. There was an element of societal coercion in this case. Now, because of this external force acting on Hari for a long period of time, his last resort to burning himself was not essentially born out of his own thought process but that of the society and his perpetrators i.e. the landlords and the Brahmins. It would be quite difficult to actually think of an inborn desire to put ones mortal frame in the hands of fire. Hence, the mens rea so essential to impute criminal culpability on a person is not proper in this case ((Actus non facit reum nisi mens sit rea: Act without guilty mind cannot be considered as criminal.)).
  7. Also essential here, is the fact that Hari was mortally wounded and instead of him getting proper medical treatment, he, according to the law of the land should be sent to the confines of prison which according to me is crossing the bounds of reasonability. Our prison system is far from equipped to mentally and physically heal Hari who has seen all his close ones die on after another at the hands of ruthless people. Today, if there is unstoppable protest in the village of ‘Jhansi’ against malpractices mentioned above, it is only because of the enlightening spark left off by Hari via his self incineration. To me, this act is noble enough to wash away the taint of criminal culpability affixed on him ((Bindal, Amit, “Non-Culpability of Attempt to commit Suicide: A critical analysis of the States policy of wounding the wounded“, Bangalore Law Journal, 2010, p.192.)). Another important point to be noted is the blurring of the line between perpetrator and victim in case of a suicide (the victim is the one who attempts to kill himself). This differentiates this case from other crimes like theft, murder and even abetment to suicide and hence cannot be called a crime in the true sense.
  8. According to me, the end achieved ((Even though the reasoning of suicide as a means on becoming one with god due to fulfillment in life is not as convincing taking into account the ground reality of the farmers of India. ))by the apex court in P. Rathinam v. Union of India ((P. Rathinam v. Union of India, 1994 (3) SCC 394.))was correct. In that judgment, it was held that section 309 of the Indian penal code was unconstitutional as it was against articles 14 (equality) and 21 (life) of the constitution. It was also held that the right to live should also include the right to not live similar to the right to not speak as inclusive under the right to free speech. This line of reasoning was further used in the case of Maruti Shripati Dubal v. State of Maharashtra, ((Maruti Shripati Dubal v. State of Maharashtra, 1987 CriLJ 743.))in which, among other things, it was opined that the language used in Section 309 was sweeping since it did not define what consisted of Suicide, hence bringing under its ambit all kinds of religious practices which involve ending of one’s life. Additionally, it was mentioned that if the purpose of such a section is to create deterrence within the minds of other individuals, then especially in cases where an individual has lost all hope in life, deterrence would never work.
  9. In addition to this reasoning, I believe that it is because of the society’s ills that this case occurred and by imprisoning a person who has already undergone torture for years at end would only serve as burying symptoms of the disease and not the disease itself ((Supra at footnote 8)). Rathinam was overruled in 1996 by the case Gian Kaur vs The State Of Punjab, ((Gian Kaur vs The State Of Punjab, 1996 AIR 946))and the main argument there was that declaring 309 unconstitutional would deem section 306 i.e. abetment to suicide as void because abetment to a fundamental right to die could not be conceived in the real world. I am, however, of the opinion that when one abets in suicide, mens rea is present in the true meaning of the word – ‘one person intentionally instigates another to kill him/herself’. There is not external pressure (to par with the present case) to such an act and therefore, abetment to ordinary suicide ((Supra note 3)). And, from the above, I have established that a self incineration cannot be construed as suicide as under s. 309 of the IPC.
  10. Concluding, I would like to add that besides all the harm that Hari suffered, the only harm done was to his perpetrators, people who ill treated him and his close ones based on differences in caste and creed, which is not acceptable by the morals of the constitution of this land. And I believe that this harm was deserved on the part of the perpetrators. Hari has benefited the society in ‘Jhansi’ and should be applauded by the law and not penalized.

I am therefore of the opinion that the defendant in this case is innocent and the conviction should be set aside.

Raza J:   The facts of the case before us have been discussed by CJ Sharma, who has set aside the conviction for Hari based on the belief that section 309 of the IPC is unconstitutional. I would beg to differ with CJ Sharma here. What happened in ‘Jhansi’ was heart rending and shameful but what is more intimidating is the fact that our judiciary has reached a point where rather than condemning the acts of the society and the failed government which led to the attempt to suicide of the victim here the court has decided to set aside the conviction. This sends a wrong message to the citizens of India. It looks as if the court has legitimized a person’s wish to die, if he or she has a reason to believe that they have been treated in discriminatory and unfair ways.  It is sad that the judiciary has, instead of making efforts to improve the situation provided such measures.  The court did not talk about improving the rights as provided under the right to life but suggested a meekly way out of it and which happens to be the right to death.

The issue now before us is that whether section 309 of the Indian Penal Code, be held unconstitutional and citizens be given the right to death as read into the right to life of the article 21 of the Indian constitution.

  1. Suicide is intentional taking of one’s life, as stated at p.1521 of Encyclopedia of Crime and Justice, Vol. IV, 1983 Edn. The Indian courts have time and again tried to read the right to death as one in the right to life enshrined under article 21 which according to me is of unsound logic. The court in P. Rathinam v. Union of India ((Supra note 10.))said “Article 21 has conferred a positive right to live which carries with it the negative right not to live.’ The reasoning it gave referred to R. C. Cooper v. Union of India, ((R. C. Cooper v. Union of India, 1970 AIR 564, 1970 SCR (3) 530.))“Mention was then made of freedom of speech and expression, as to which it was observed that the same includes freedom not to speak and to remain silent. Similarly, about the freedom of business and occupation, it was stated that it includes freedom not to do business.” How the courts have equated a right to speech and trade with life is beyond my power of imagination. The right to one’s life is an issue on altogether and it can in no way be talked into the same breath as right trade or freedom of speech etc. Article 21 talks about right to life with human dignity and it stresses upon storing the sanctity of life. Thus, right to life cannot be constructed to justify the extinguishing of life ((Supra at footnote 13. )). The court in Gian Kaur vs The State Of Punjab had held that the state also has a positive duty to protect life and not merely have a negative duty of not interfering with personal life ((Majumdar, Abhik, “The right to die: Indian experienceAustralian Journal of Asian Law, Vol. 6, No. 2, p. 157, 2004.)). Also the fundamental rights granted by state in article 12 to article 35 are available only against the state and not in private sphere ((Id.)).
  2. Self preservation is the general instinct that we human beings posses. All activities that humans indulge in are in a way or other an attempt to preserve the self ((Pillai, Dr. K.N. Chandrasekharan, “Comment on Rathinam vs. Union of India” (1995) 3 SCC (jour).)). The state legitimizing a form of destruction of this self would run counter to the basic norm and the idea of life as prevalent in the majority section of society. Suicide is often committed by people whose mental faculties have been either impaired or influenced by the recent injustice or discrimination over a long period. These people are incompetent to take decisions like such. It has been noted that about 100,000 people who commit suicide are of unsound mind and the remaining number are largely filled up by reasons of poverty, debt and illiteracy ((Nanda Prashant, IANS, Friday March 16 2007)). The impact of poverty, debt or illiteracy leaves the mind in a state where it is compelled to run away from the issue rather than confront it. A basic feature of our societies is the survival instinct ((Ashraf Md. Ali, “culpability of attempt to commit suicide- a legal labyrinth amidst ethical quandary” journal of indian law institute[vol. 49:4])). The court had said in Olga Tellis v. Bombay Municipal Corporation “the high purpose which the constitution seeks to achieve by enforcing fundamental rights is not only to benefit an individual but to secure the larger interest of the country ((Olga tellis v. Bombay Municipal Corporation AIR 1986 SC 180 at 192-93)).”
  3. It should also be pointed suicide is an act which cannot be reversed. The act inflicts such damage which has no remedy or recovery. It is impossible to express regret if it turns out to be a mistake and the loss of such a mistake is life which is valued and kept on a pedestal so high that it would be a terrible damage to have ever experienced. In Christianity the Bible says “homas Aquinas, being Catholic and believing that confession of sin must be made prior to departure from the world to the next, taught that suicide was the most fatal of all sins because the victim could not repent of it ((Deem, Rich, “What Happens to Christians Who Commit Suicide? Do They Go To Heaven or Hell?“, May 11, 2011.)).”
  4. Suicide is often construed to be a right act by many academicians and jurist using the examples of Johar, Sati, Saamadhi, prayopaveshan, atmarpan ((These are acts supported by traditional logics and practices and involve an individual to end his life knowingly himself. Not all people who commit suicide do it because they have realized their true self and are content with their achievements. These kind of people are extinct as against the other types of people who commit suicide.)). Renowned scholar B.B. Pandey argues that creating a law based on a small section consisting of thinking people who value life would be wrong for the society ((Supra at footnote 5.)). As stated by James .M.A. Weiss a very small number of people who attempt suicides are certain that they will die i.e. a substantial number of people are uncertain of their death. A very small number is certain of dying and thus is not among the people who commit suicide because of self realization. The people who are certain fall under the successful attempts where they actually die. Most of the attempts of suicide fall into the not so innocent category of self punishment ((Kannibar J.g., “should there be a right it to commit suicide” (1993) Cri LJ 14 at 390-91)).
  5. Death is inauspicious as it heralds decay and decomposition as against life which is auspicious and desirable ((Supra at 11)). Talking in the terms of religion it can be seen that no religion legitimizes the end of life by the hands of an individual. Especially given the fact that life is a property that god imparted to the people and only god holds the power of taking it away from the individual. , According to the Bible, “the only One who has the right to decide when we die is the Creator Himself. The Bible also says God has ordained the days of our lives. So, suicide specifically violates the will of God in a person’s life ((supra at 23. “Deviation from this would amount to a sin. The sacred and holy texts of various religions discuss suicide as a sin. The Bible condemning suicide has been quoted above.”)).” In Islam a verse in the Quran instructs; “And do not kill yourselves, surely God is most Merciful to you ((Qur’an, Sura 4 (An-Nisa), ayat 29)).” Another one goes as “narrated Abu Huraira: The Prophet said, “He who commits suicide by throttling shall keep on throttling himself in the Hell Fire (forever) and he who commits suicide by stabbing himself shall keep on stabbing himself in the Hell-Fire ((Sahih al-Bukhari, 2:23:446)).” Judaism and Hinduism also views suicide in a negative light ((Jewish views on suicide state that suicide is forbidden by Jewish law. Judaism has traditionally viewed suicide as a serious sin. It is not seen as an acceptable alternative even if one is being forced to commit certain cardinal sins for which one must give up one’s life rather than sin. Hinduism addresses the issue in verse 3 of chapter 40 of Yajurveda which when translated means that people with self destructive tendencies live in darkness of ignorance which they cannot escape even after death. Also there is a large debate on fast unto deaths which is a clear form of attempt to suicide. It can be said that these fasts are done to improve the conditions of life as against the present situation and to assert life meaningfully than to give up. Their main objective is in resonance with the arguments I stated above.)).
  6. Let’s move onto the criminal aspect of suicide. The arguments of a major part of opposition to criminalization of suicide are based on the fact that suicide is not a crime. Their arguments assert that 1) killing one’s self causes no harm to the society 2) individual owns his life similar to a property and he has the right to use his own property the way he likes to 3) right to die is the other side of right to life. Now I already discussed above as to why right to die cannot be the other side of right to life. I will discuss the first two basic arguments here. The harm principle holds that the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others ((John Stuart Mill (1859) on liberty, “Once a person dies he leaves a void in the life of his loved ones and often the lifestyles of these loved ones halt for a reasonable amount of time which effect the upcoming course of their life largely. If the victim happens to be a bread earner of the family it creates a huge setback to the family for losing the individual. The pain, loss and setbacks are harm that the society indirectly suffers due to the damage inflicted by the suicide. Thus suicide imposes harm on the society in these forms.”)). The theories of natural law accentuates to the notions of universality of certain patterns of permitted and prohibited behavior. Now sociologically crime is viewed as deviant behavior which violates existing norms. Suicide as established above is not the norm and is practiced by an extinct section for its true purpose of realizing self. Thus it is a deviation of the norm and should be considered to be a crime. This deviation from the norm acts as a bad example to the society. It influences society in a wrong way and decriminalizing the act of suicide would set out a false notion of right or wrong. Acquitting Hari would set out a wrong notion of justice to the other people suffering the same plight as him and would encourage them to address the problem by ending their lives instead of demanding justice and forcing the society as well as government to improve the situation ((Wright, Valerie (November 2010). “Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment“, 13 October 2012: “Research has shown that increasing the severity of a punishment does not have much effect on crime, while increasing the certainty of punishment does have a deterrent effect. “Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for their actions.”)).
  7. Coming to the point of considering life to be one’s own property. Section 425 of the IPC talks about the crime of mischief wherein is a person is not allowed to cause harm to any property ((Explanation 2 of this very section states that mischief can also be committed to one’s own property and inflict harm upon others.)). Thus suicide can be viewed by the same logic that it imposes harm on others by destroying self. Further speaking ownership may amount to alienation but not destruction of the property ((Supra at 21 pg.16)).
  8. Having discussed the reasons as to why suicide is a crime I would also like to point out that it should be possible for the society to treat attempt to suicide as an offence but yet to distinguish cases involving genuine difficulties for mitigation of punishment. Section 309 enables the court to go for minor punishment in cases where the court feels sympathy with regard to circumstances ((Supra at 19)). It has also been seen that normally offenders are dealt with compassion by giving benefit under probation act 1958 or section 562 of Cr.PC, 1908 corresponding to section 360 of Cr.PC 1973 ((1996 AIR 946)).
  9. Hari should be convicted and serve a term of six months in prison only after he is fully recovered from the injuries that he sustained and has sufficient mental capacity so as to make the right decisions.
  10. I would also like to point out that Hari attempted suicide after the social conditions forced him to and thus the individuals who publicly humiliated Hari should be charged with abetment to suicide ((1994 (3) SCC 394: “But that cannot be mixed with this case as section 306 and section 309 are read into different areas. ”As regards person aiding and abetting suicide the law can be entirely different … as self-killing is conceptually different from abetting others to kill themselves”)).

THE DILEMMA OF DYING, INDIAN EXPRESS, Abhishek Mukherjee, 29.11.2014

The new BJP-led Government recently announced that section 309 of the Indian Penal code should be effaced from the statute. The news comes after a report by the Law Commission of India on “Humanization and Decriminalization of Attempt to Suicide”. ((Modi govt plans to decriminalize attempt to commit suicide, Times of India, (August 5, 2014), http://timesofindia.indiatimes.com/india/Modi-govt-plans-to-decriminalize-attempt-to-commit-suicide/articleshow/39689034.cms  ))The Commission’s report stated in its recommendations that section 309 of the IPC be effaced because the question here is not whether this provision is constitutional or unconstitutional rather that does the provision have any application while preventing suicide. The commission further in its report states that section 309 is inhuman on the grounds that it proves to a hindrance in prevention of such acts and especially in taking care of such persons who need medical and emotional help rather than being handed jail term by the hands of justice ((Law Commission of India, Humanization and decriminalization of attempt to suicide, Report No. 210, (October 2008) Pg. 38-39)). This topic draws our attention to very recent case decided by the Supreme Court of Hindusthan regarding Section 309 of the IPC. The court in this case had decided to acquit the famous Hari Kumar who had become a nationwide debate topic after he had tried to immolate himself in the central bazaar in Jhansi protesting against the oppressive Parsi landlords. The opinion of the three judge bench, presided by the CJH, was divided on the issue. The CJH while stating the majority opinion of the court acquitted Hari of his offences and called for decriminalization of suicide. The CJH reiterated the Law Commission’s arguments and ruled that right to life does include in it a right to die.

The dissenting opinion of the court delivered by Justice Raza provides an interesting twist to the debate by stating that de-criminalizing suicide would prove detrimental to the efforts and intention of the constitution to preserve life. The opinion is largely based on religious, fundamental and legal arguments which support the fact that life should be preserved and the right to die should not be allowed by the apex court of the nation in the interests of the same.

Sneha, a Chennai based NGO, works in the area of suicide intervention. According to the statistics stated by the NGO around 1,00,000 people commit suicide annually in our country and continuing laws which criminalize it are detrimental to the efforts of preventing it ((Sneha India, (http://www.snehaindia.org/index.php) (Retrieved: 25/11/2014).)). The WHO had informed SNEHA that, at a public level, punishing suicidal behaviors by law has many negative aspects. It has been witnessed in the case of Sri Lanka where such law was repealed four years ago and the number of suicides reduced drastically ((Report No. 210, Supra note 42 at 33)). The Ministry of Law and Justice, Government of India has been communicated of the negative aspects of such laws. The President of the International Association for Suicide Prevention, France had strongly voiced his opinion regarding the same and urged India to join the various nations who have decriminalized suicide so that fear of punishment and social stigma does not prevent such individuals from expressing their concerns and emotions.

While one side of the coin rallies for de-criminalization, the other side voices their concerns regarding the lack of concrete proof and empirical data that could prove that de-criminalization of suicide would prove to be a positive change in prevention of suicide. Also, as they argue, there are rarely any instances where such persons, who have been charged with attempt to suicide, have been sent to jail and not provided physical or mental help. The judiciary has often taken a liberal view on such offences.

However there is a new section of medical practitioners, policy makers as well as jurists who have repeatedly voiced their opinion that irrespective of the view of the law on attempt to suicide, a permission to die or euthanasia should be provided as an exception in the rarest of the rare cases where a patient is incapable of bodily functions and suffers from Severe body wasting, intractable vomiting, urinary and bowel incontinence, immobility, and total dependence or is in a permanent vegetative state. Their main arguments rely on the fact that a competent adult has a right to autonomy (to decide what will or won’t be done to his or her body). There is almost universal agreement that a competent adult has the right to self-determination, including the right to have life-sustaining treatment withheld or withdrawn ((James Fieser, EUTHANASIA, Applied Ethics: A sourcebook, ( 10/3/2010), https://www.utm.edu/staff/jfieser/class/300/6-euthanasia.htm)). A dignified and comfortable life is what our constitution and various others across the world seek to achieve. A patient suffering from such condition, where it has been established by the medical fraternity over a period of time, review and treatment that there would not be any scope for improvement or revival and where it has been clearly expressed or proved, that the patient would not be willing to continue living life in such undignified ways, should be allowed to end his life. Although there are reservations regarding the intentions of the patient and the criteria for such rarest of the rare cases but a proper framework and guidelines for the same can be established with consultation and debates.

This middle path of providing an exception to physician assisted suicides in the rarest of rare cases is the only way the right to life with dignity in all its senses.

Armed Forces Special Power Act and women safety

Maitri Tandon, Student of Law, Symbiosis Law School

ABSTARCT

This research paper concerns in itself the scenario of the northeastern and the northern states of our country, India after the inception of the Armed Forces Special Power Act. The researcher has penned down her own views on, what should be the ambit of area in which the Act should be imposing. Here, in this paper various cases are cited, issues are raised and the researchers analysis followed by a conclusion. The article demonstrates the condition of women in the states where Armed Forces Special Power Act is in power. As such this article should be of interest to a broad readership including those interested in Law, Human Rights, Women Empowerment, and Social Sciences. Views expressed in this article are of authors alone. It does not reflect the views of either publisher or the editors of the journal.

Introduction

Women, the gender that signifies courage, strength and at the same time is a figure for love, compassion and pliability has faced a lot of refinement, vehemence, bias, injustice and cold-heartedness since the inception of humankind. How ironical is it to have been worshiped and thrown ruthlessly on the roads at the same time? Experiencing both the behaviors together has helped women in empowering themselves and has made the government to consider their demands and rights first. The time of crisis has helped them the most.

Time of crisis can be empowering for women across the world, as they are pushed to brink of activism and sometimes, away from their traditional roles ((Gardem and Chalesworth, 2000, UN Security Council Resolution 1325 (2000).)). Nevertheless current research has established that conflict and militarism are more likely to create environments that repress and harm women disproportionately, compared to men ((Id.)).

This is the case particularly in ‘cold’ states of conflicts and authoritarianism. Opportunity for a change in the condition of women in these areas becomes difficult in the form of transitional political reform, rights as such women not only suffer sustained economic and social hardships and gendered violence, but also perpetual restriction on their ability to address these violation through the full exercise of their civil and political rights. Patterns of violence and repression become self-perpetuating, and the damage done to individual’s roots deep into the social fabric of the country ((Gardem and Chalesworth, 2000,UN Security Council Resolution 1325 (2000).)).

Unfortunately such is the situation in Indian ‘low intensity war’ states across North and East. These states, the seven sisters and Jammu and Kashmir are fully or partially governed by the Armed Forces Special Powers Act, 1958 (AFSPA). There have been situations when these states have suffered from draconian rule and militarization for more than 50 years in concurrence with other state and national security laws ((Jammu and Kashmir Public Safety Act 1978 and  National Security Act 1980)). Even though India is well open to the International Human Rights Treaties, author is of the opinion that, AFSPA breaches these guidelines by derogating the key human rights and also robbing the non-army personnel of the legal remedies/recourses for offences committed by the armed forces of the nation.

The Problem

  • Is the Armed Forces Special Power Act constitutional also;
  • Is it in weight with the humanity?

The Armed Forces (Special Power) Act

The unwarranted interference of the British colonies on the Indian Territory gradually led to the bloody Anglo-Manipuri conflict of 1891 with the Second World War the principle, The Naga Movement and also the failure of the new India to live up to the democratic principles treasured in its Constitution and in respecting the rights of the nationalities it had taken within its borders and several other reasons, marked the inception of the idea for this act ((Armed Forces Special Power Act: A study in National Security Tyranny)).

Eventually on 22 May 1958 after a brief discussion in the parliament that lasted merely for 3 hours The Armed Forces (Assam – Manipur) Special Power Act was passed. This act was further amended in 1990 when it broadened its ambit to Jammu and Kashmir. Armed forces (Special Power) Act gives blanket powers to the Army.

Legal Provisions Powers Bestowed over the Army

The section 1 to 3 of the Act covers the jurisdiction, the definition of ‘armed forces’ and also briefly defines  ‘disturbed’ and the power to declare area such as. While section 4 is comprehensively lays down the power given to the army: it allows any army personnel the sweeping power to arrest, without a warrant, “any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence” using any degree of force necessary, including lethal force, and to fire upon or use force “for the maintenance of public order” against persons who are contravening laws in the disturbed areas.

It prohibits “the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.” Searches of persons and premises can be made without a warrant, while goods “reasonably suspected to be stolen” can be confiscated and structures that could be in use by insurgents, destroyed.

According to Section 5, anyone arrested by the army must be handed to police, not within a specific time period, but “with least possible delay”. Finally, Section 6 ensures that army personnel are accountable only to internal regulation and punishment, stating: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

This immunity given to the army also extends to the mandate of the National Human Rights Commission (NHRC), which according to Section 19 of the Protection of Human Rights Act (PHRA), is not empowered to investigate apparent violations by the armed forces in areas governed by AFSPA ((It can only seek a report from or make recommendations to the central government, and require that it be informed of action taken on a case within three months [Armed Forces Special Power Act: A study in National Security tyranny].)).

Analysis

The constitutionality of the Armed Forces (Special Power) Act was questioned by the United Nations Human Rights Committee, when India presented its second periodic report to the UNHRC in 1991. India defended the Act by stating that this Act was a necessary measure to prevent the secession of the Northern Eastern states. The Attorney General said that a response to this agitation for secession in the North East had to be done on a “war footing”. He argued for the constitutionality of the act by quoting Article 355 of the Indian Constitution, which makes it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession ((Armed Forces Special Power Act: A study in National Security tyranny.)).

It may also be assumed that the Central government might argue for its constitutionality by testifying it with avery persuasive jurisprudential theory given by Sir Jeremy Bentham, the theory of utilitarianism, which states that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other, the chain of causes and effects, are fastened to their throne”. This theory can also be explained in simple words, law that provides greater good of greater number is the law of man is deemed to be blameless. Therefore by applying this theory the government may say that the Armed Forces (Special Powers) Act safeguards the mass of the country by sacrificing the rights of some. Thus, is deemed to be constitutional.

But the question that again arises is that is it legitimate/constitutional to let the armed personnel perform heinous crimes under the cover of the act, for they are guarding our nation and flexibly set aside the rights of women provided by the constitution?

Indian Law

There are many cases, which challenge the constitutionality of this act pending in the court of law, but in this paper we will be specifically dealing with women rights, therefore we will point out the laws which are breached by armed personnel under the blankets of AFSPA.

Violation of Art 14 – Right of Equality before Law

The Constitution of India with its Art 14 ensures equality before the law. People living within the territory of India are to be treated equally before the law, which means that the law applies to all, irrespective of the caste, wealth, position, the clan a person, comes from. AFSPA thoroughly violates this right as people who are residing in the areas declared as disturbed have been denied this right because of Section 6 of the Act, which prevents the citizens from filing a suit against any personnel for armed forces without prior sanction of Central Government. This unequally burdens and demotivates the class of people residing in the “disturbed areas’.

Violation of Art 21 – Right to life

The constitution of India guarantees the right to life to its citizens under Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law”, which is violated by Section 4 of the Act. The Armed Forces (Special Power) Act deprives the women of an effective penal remedy against forced sexual intercourse/rape performed by the guarding force of our nation; it violates their right to privacy and bodily integrity, aspect of the right to life and personal liberty under Article 21.

Violation of Sec. 375 of the Indian Penal Code

This Section of the Indian Penal Code defines Rape, “ a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six following description:-

  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.

  • Manipur- (a) In clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) In the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.

Rape being the heinous crime, which is colossally prevalent in our country and is even more aggressively boycotted unfortunately, tops the list of crimes committed by our soldiers. There are no provisions, which are successfully being undertaken by the government, due to non-cooperation by the Indian army. One of the examples would be when Justice Verma Commission said in unequivocal terms that security persons who rape women should be judged under the same act that applies to the civilians, which was opposed by the Army ((Walter Fernandes, AFSPA: Who Rules India?))also when the Jeena Commission appointed to inquire into the alleged rape and murder of 30 year old Manorama Devi of Imphal in Manipur suggested that the law should be repealed and the clauses that are required should be integrated with other All India laws the Government did not even publish the report.

The facts of the Manorama Devi case were, in the early hours of the morning, on July 11, 2004, 29-year-old Manorama was picked up from her house in Imphal and taken away by the Assam Rifles. Three hours later her body was found with eight bullet injuries in a field. The Assam Rifles says she wanted to relieve herself and while doing so attempted to escape. She was, therefore, shot and killed. To the public, however, it appeared incredible that a four-foot eleven inch girl, weighing 50 kgs., should escape from eight highly trained jawans in an open field with nobody around. Public unrest engulfed the whole state. Aman immolated himself. Women stripped naked outside the headquarters of the Assam Rifles inviting rape and executions. In the inquiry set up under the provisions of the Commission of Inquiry Act, Manorama’s brother testified that he saw a jawan pull up Manorama’s T-shirt and insert a kitchen knife into her underwear prior to arresting her. The former police surgeon and chief Medical Officer of the Manipur Health Service and another doctor deposed that she was killed at close rage while in a lying down position. She had bullet injuries in her vagina. Apart from the bullet wounds, there were other injuries caused by blunt object. The Central Forensic Science Laboratory reported semen stains on her petticoat. A resident of the area, who was in the field at that time, contradicted the Assam Rifles version saying that she saw jawans alight from the vehicle with a lifeless body of Manorama and placed her in the field and then she heard the sound of gunshots. Policeman deposed saying that they did not find spent cartridges in the area and there was not a drop of blood on the ground ((The Murder Of Manorama; The Human Rights Bimonthly)).

The brutality and the double face of the Army has also been seen in many cases and operations, like:

Operation Blue Bird (Oinam, Bishunpur District, Manipur)

This operation was launched by the Indian Army on the 11th of July 1987 at Oinam in Manipur, in which more than 30 naga villages were covered and included extensive and cruel violations of the Human Rights violations which included torture with extrajudicial killing in addition to sexual harassment, theft and loot.

Kunan Poshpora (Kupwara District, Jammu and Kashmir)

The Kunan Poshpora search operation was initiated by the Indian Army on 23rd February 1991 during which the Indian Army personnel raped nearly hundred women including pregnant women openly in front of the villagers and there was no clear inquiry, which was held to follow up the condition. Reportedly, a police officer was threatened many times to not to make the report public, which recorded.

Shopian Case (Shopian district, Jammu and Kashmir)

On 29th May 2009 two girls from Shopian district went missing on the way back from orchard. Their dead bodies were found the next morning. This was a case of gang rape based on the information given by the Forensic lab by the Army personnels who were camped nearby ((Available at http://www.countercurrents.org/nitesh171114.htm)).

The Armed Forces (Special Power) Act 1958 was enacted on experimental basis as a measure against “terrorist” groups in the North East for a period of six months. This experimental project which was enacted for Six months has now been enacted for over five decades and there has been no declination of the number of such groups in the North East they have just increased from two in to twenty in Manipur, Assam has not less than fifteen, Meghalaya has five of them and other States have more groups. How has the government allowed an act to stay even when the “experimental” measure has failed to achieve its major goal?

Conclusion

The main aim of writing this paper was to familiarize readers with the harsh reality regarding The Army. On the basis of the aforesaid information we arrive at the conclusion that, even though the Army is deployed for our protection and it is saving the Nation with its fullest strength. It is important for the government to keep a check or intervene in the functioning of the force where it is bestowed with unquestionable power through AFSPA.

When the country is fighting against the sexual assaults, which are prevalent in the Nation is it rational to have the force that is deployed for the protection and betterment of the country to take advantage of the immunity provided to them under the Act? No. Why is it that the culprits are exempted from the punishment?

The government should punish all the criminals in accordance to the principle of equity. No, offenders should be exempted from the punishment just because of the immunity bestowed on the institution he is working for. There is no reason why an offender should have a distinguished law. They should be dealt under the law of land and should be punished in the same way as “civil” criminals.