Right to life and the ethics of euthanasia

It is believed across the globe that, God created this world, and the creation of life is assumed to be the most precious thing in the earth. It is immaterial, how advanced Science and technology we have, the secret behind the cause of life and death remains uncertain.

Well, legally speaking, every human being has got a right to life. In India, Article 21 of the Constitution guarantees Right to life and personal liberty to all Indian Citizens. By virtue of said Article of Indian Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law.

Further, by virtue of the provisions of Indian Penal Code, no one has got right to take away the life of another person, doing so is a punishable offence under the same Code. However, there are certain exceptions to the same.

In this context, let us have a look at the legal issues related to the right to life. One of such case is that of “Euthanasia” OR “Mercy Killing”. Euthanasia, was always been a topic of debate. Hope you all remember the Hrithik Roshan & Aishwarya Rai starter movie Guzaarish, where the issue of mercy killing was pictured.

The term “Euthanasia” is nothing but Mercy Killing. It is the practice of intentionally ending the life of a human being in order to relieve him/her from the pain and sufferings. As we know human beings life is not smooth always, and not all human beings die at peace. Sometimes, people go through extreme physical pain in their last days, and they see euthanasia as a compassionate way of ending such pain.

Different patients may ask for wilful Euthanasia to stay away from the shortcoming and loss of intellectual capacities that a few infections reason, and numerous vibe these wishes ought to be regarded.The increased significance given to individual autonomy in this century has been one of the reason for lateral thinking in the direction of legalising euthanasia.

As stated earlier, we all expect a happy and fruitful life. However, not all of us get the same. Many people end their life out of various frustrations in their life. However, it is presumed to be a sign of abnormality. The act of killing oneself is generally called as Suicide and if one ends his life with the help of authorities on his request is called “euthanasia” or “mercy killing”.

Normally those people who are suffering with terminal illness or who have become incapacitated and do not want to go through any sufferingrest of their life, and request OR file petition for “euthanasia” or “mercy killing”.

Euthanasia is a debatable issue, which comprehends the morals, values and beliefs of our society, and I am of the view that, the right to choose between live or die should not be a right allocated for bodied individuals of sound mind but to all human beings.

Controversy over the concept of euthanasia became significant with the recent developments in the European Countries viz. United Kingdom and Netherlands, were euthanasia was legalised OR allowed. Said incident triggered the debate across the world that, whether euthanasia shall be legalised OR not?

Not only in the West, even in India, euthanasia was a hot topic of debate. The best example is the Hindi movie, GuzaarishThough the Law Commission of India has recommended for legalising euthanasia, it is not possible with the existing legal system. i.e., by virtue of Section 300 of Indian Penal Code, 1860euthanasia is illegal. Because, there is a criminal intend on the part of the Doctor who execute euthanasia.

However, one may take a plea that, euthanasia was executed only after due consideration from the appropriate authority as well as the consent of the deceased himself, the Doctor can still be punishable under the provisions of Section 304 of the Indian Penal Code for the offence of culpable homicide not amounting to murder.

However, Supreme Court in its recent judgment in Aruna Shanbaug case broke new ground with respect to the concept of euthanasia. In the said case, apex court allowed passive euthanasia viz.,withdrawal of life support systems on patients who are brain dead or in a permanent vegetative state. However, Supreme Court made it clear in its judgement that; an active euthanasia shall continue to be a crime under the existing Indian legal system.

Shreya Singhal judgment and Internet Intermediaries in India

Eira Mishra

An analysis of the effect of Shreya Singhal judgment on Internet intermediaries in India

The Shreya Singhal judgment ((Shreya Singhal v. Union of India, WRIT PETITION (CRIMINAL) NO.167 OF 2012)), pronounced in March 2015, has been met with ambivalent reception on the stance of intermediary liability law in India. The first Public Interest Litigation (PIL) on the matter (with which several cases were subsequently joined) contested the constitutionality of Section 66A, 69A, 79 and 80 of the Information Technology Act, 2000 (hereinafter “the Act”) on the ground that these violate Articles 14, 19(1)(a) and 21 of the Constitution. Section 66A was plagued with several ambiguous terms like “grossly offensive”, “menacing character”, “annoyance”, “inconvenience”, “danger”, “insult”, “injury” and “ill will”. This section was held to assault the very soul of the freedom of expression guaranteed under Article 19(1)(a) and to not be saved by any of the reasonable restrictions under Article 19(2). It was consequently held unconstitutional. This decision was hailed as victory of freedom of speech and expression over draconian laws unfit for operation in a democracy.

The advent of internet has ushered in the need for law to constantly evolve with the new methods of communication and information dissemination growing every day. A critical question in this regard is the determination of liability of internet intermediaries. The other provisions of the Act contested were Section 69A, dealing with procedure for blocking of public access to websites and Section 79 which bestows immunity on intermediaries from liability in certain cases. The IT Act defines “intermediaries” ((Section 2(1)(w) of the Information Technology Act, 2000))to include telecom service providers, internet service providers, search engines, cyber cafes, etc. Any person or organisation facilitating storage or transmission of electronic records is included within the definition.

Clarification on Procedural Safeguards

Constitutionality of Section 69A of the IT Act was assailed on the basis that it did not provide for any pre-decisional hearing. The Supreme Court, on the other hand, has upheld the constitutional validity of the provision stating that ample safeguards akin to those laid down under Article 19(2) have been given under the section. These provide satisfactory guidance to authorities as to what content is liable to be blocked and to weed out misuse of the provisions. It further read pre-decisional hearing into the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 ((Hereinafter, the Blocking for Access Rules)), laid down under Section 69A (2) of the Act. This demolishes the prior regime of notice and take-down. Intermediaries usually complied with third-party notices even when the content was perfectly legitimate because they lacked the resources and the initiative to defend known/unknown originator’s content if litigation ensued. Provision of these clarifications is hailed as originators and intermediaries will now have a clear opportunity to make representation before the concerned committee and plead their case before their content is taken off the internet.

The apex court has read down these rules to mean that non-governmental agencies cannot easily force removal of content available on the internet. The government is conferred the responsibility to decide the lawfulness, or the lack of it, of the disputed content. Additionally, the Blocking for Access Rules have been read to mean that blocking order shall be provided to the intermediary in writing, stating reasons for issuing of the order. The intermediary has the right to appeal against the order in a writ petition under Article 226, contesting the reasons mentioned in it. This verdict will protect online content from being forcefully taken down due to indiscriminate notices against lawful content.

Rule 8 of the Blocking for Access Rules has been read to mean that pre-decisional hearing is granted not only to the intermediary but also to the originator of the content. The extension of opportunity to represent oneself advances accountability to the system set for blocking. However, this would require the Committee to locate and contact the originator, something which might not be strictly followed ((Chinmayi Arun, The Case of the Online Intermediary, THE HINDU, April 7, 2015, http://www.thehindu.com/opinion/op-ed/shreya-singhal-case-of-the-online-intermediary/article7074431.ece#comments)).  This sets a low threshold of accountability for the review committee. Mostly originators cannot be identified and intermediaries are not usually willing to appeal in a writ petition for anonymous person’s content.

The temporospatial extent of blocking orders is also burdened with ambiguities. There are no guidelines that state for how long and over what territory is the blocking order applicable. Another matter of concern is the confusion over frivolous complaints wherein no penalties have been imposed for false complaints and not rules discuss the recourse available to the intermediary to claim damages upon proof of vexatious complaints ((Jyoti Pandey, The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India? CENTRE FOR INTERNET AND SOCIETY, April 11, 2015, http://cis-india.org/internet-governance/blog/sc-judgment-in- shreya-singhal-what-it-means-for-intermediary-liability)).

Need for Transparency

The blocking procedure has still not been lit up with transparency. Rule 16 of the Blocking of Access Rules states that strict confidentiality shall be maintained with respect to complaints received and blocking orders passed. This is an “insidious form of censorship” and results in chilling effect of freedom of speech and expression. The court reiterates that an “informed citizenry” and a “culture of open dialogue” are integral to functioning of our democracy. Confidentiality is criticized because it abridges an originator and reader’s right to know that their content has been blocked by a government notice. In fact, many academics believe that blocked web content must carry a notice which lays down the reason behind the order and the authority issuing the order.

Keeping up with technology is quintessential. Creation of a digital version ((Supra note 4))of the traditional government notices is one of the ways to keep the public informed of government action taken and to provide affected persons with an opportunity to contest the ban. This would bring our procedure at par with due process.

Another way for public scrutiny of government blocking orders would involve imposing of a requirement on the central government to publish an annual report of online content blocked with reasons for the action. This would advance the cause of transparency and decrease arbitrariness on part of government.

Safe Harbour and Intermediaries

Section 79 of the Act attempts to create a “safe harbor” for intermediaries. It exempts intermediaries from liability for content hosted by them on conditions laid down under Sections 79(2) and 79(3). The intermediary is required to publish rules and regulations of usage, privacy policy and a user agreement for users of computer to abide by, as per conditions stated in Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011. This requirement of “due diligence” under the Act has created a hostile working environment whereby arbitrary take-down notices are sent to intermediaries. As per the rules, intermediaries may decline to comply with the notice but they usually submit to these to avoid prolonged and costly litigation. However, prior research ((Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, CENTRE FOR INTERNET AND SOCIETY, April 27, 2012, http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on- internet))has shown that intermediaries prefer overbroad blocking over the risk of litigation.

The aforementioned process gives rise to privatization of censorship which is contrary to the very essence of the right to free speech and expression guaranteed by Article 19(1)(a). The liability imposed on platform companies for regulation of online activities of its users’ amounts to censorship-by-proxy which endangers both free speech and innovation. Thus Section 79, along with the Intermediaries Guidelines, 2011 was challenged in this case ((See also: Mouthshut.com v. Union of India, WRIT PETITION (CIVIL) NO. 217 OF 2013)). The court read down Section 79(3)(b) of the Act and Rule 3(4) of the Intermediaries Guidelines, 2011 to mean that whereas previously the intermediaries had to suo motu decide the lawfulness of the content, now it is essential to require passage of an actual court order or government notification for initiating a take-down.

Another pertinent issue is at the centre of this argument. Even though an expectation that intermediaries would monitor and regulate all content that flows though their channels is flawed, yet some level of cooperation is essential to ensure that harmful speech, such as child pornography, is expeditiously removed from the host site.

Conclusion

The Shreya Singhal judgment has granted a much needed sigh of relief on content originators, intermediaries and netizens in general. Intermediaries’ legal liabilities have been substantially lowered due to clarifications provided by the Supreme Court. This would act as a catalyst for businesses which are primarily based on the internet.

Upholding validity of Section 79 after reading down 79(3)(b) implies that intermediaries are not completely off the liability radar. They can harness this opportunity to build reliance on their user guidelines by issuing simple take-down policies for content which amounts to harassment, bullying or other misdemeanors, thereby minimizing the need to resort to judicial remedies.

Writ of Habeas Corpus and Indian Constitution

Writ of habeas corpus is issued in the form of an order calling upon a person who has detained another person to bring that person before the court to let it know under what authority he has detained that person.

Habeas Corpus is a process by which a person who is confined without legal justification may secure a release from his confinement. It is an effective way of immediate release from unlawful detention, whether in prison or in private custody. For the purpose of this Writ, physical detention is not necessary to constitute detention. Control and custody are sufficient ((Cox v. Haikes, (1819) 15 AC 506)).

Writ of habeas corpus is in the form of an order issued by the High Court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. However, production of the body of the person alleged to be harmfully detained is not essential before an application for Writ of habeas corpus can be finally heard and disposed of by the Court. Production of the body of a person alleged to be wrongfully detained is ancillary to the main purpose of the Writ in securing the liberty of the subject illegally detained ((Kanu Sanyal v. District Magistrate, AIR 1973 SC 2684)).

An application for the Writ of habeas corpus can be filed by the person who is in confinement OR any other person on his behalf. However, all such applications shall accompany an affidavit stating the nature and circumstances of the confinement. General procedure is that, if the court considers that aprima facie case for granting the prayer has been made out, it issues a rule nisi calling upon the opposite party to show cause on a day specified, why an order granting the Writ should not be made.

A detention is not prima facie illegal if following conditions are satisfied;

  1. Detention should be in accordance with the procedure established by law ((See Article 21, of Indian Constitution)).
  2. It must not infringe any conditions laid down in the Article 22 of the Indian Constitution. Hence, if a person is not produced before the Magistrate within 24 hours of his arrest, he may be released on a Writ of habeas corpus.
  3. Legislature, which enacts the law depriving a man his personal liberty, must be empowered to make that law under Article 246 of the Indian Constitution ((Distribution of legislative powers)).

Writ of habeas corpus lies, if the malafide of the detaining authority is established OR if the detention is malafide and is made for a collateral OR with ulterior purpose ((AK Gopalan v. State of Madras, AIR 1950 SC 27)). However, in all these cases, burden of proof lies on the petitioner ((Prabhu Narain Singh v. Superintend, Central Jail, ILR (1961) 1 All 427)). However, a person is not entitled to be released on a petition of habeas corpus, if he could not prove the illegal detention or restraint.

In a case of habeas corpus, if the detaining authority pleads that, detenu has already released, however, if the detenu is traceable and if the release is found to be false, then court may also order for compensation ((Postsangbam Ningol Thokchom v. General Officer Commanding, AIR 1997 SC 3534)). No Writ of habeas corpus will lie in regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial on the ground of the erroneousness of the conviction ((Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217)).

Writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. But this does not mean that, the writ cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent to whom the court gives such custody ((Elizabeth Dinshaw v. Arvind M Dinshaw, AIR 1987 SC 3)).

However, a person has no right to present successive applications for habeas corpus to different judges of the same court ((Ghulam Sarwar v. Union of India, AIR 1967 SC 1335)). However, a fresh petition under Article 32 would be competent ((Id.)).

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.

 

DOT ordered to ban porn sites in India

Most of the websites which are delivering pornographic contents are at present in accessible in India, on several Internet Service Providers (ISP’s). With effect from August 1, 2015 most of the internet service providers are displaying either a blank page or “Directory does not exist”.

Some browser displayed even the message “Your requested URL has been blocked as per the directions received from Department of Telecommunications, Government of India” when attempting to access a porn site.

Earlier, in the month of July, 2015 Supreme Court declined to pass an interim order to block porn sites in India. While hearing a Public Interest Litigation (PIL) filed by an advocate, asking to ban porn sites in India, it was observed by the apex court that, “how can you stop me from watching it within the four walls of my room?”

In the said case, court further observed that, blocking a porn website being watched at home would be a violation of Right to personal liberty as guaranteed under Article 21 of the Indian Constitution.

The petition which is asking for a web filter to censor any obscene content (obscenity is wider than pornography) was on a presumption that the consumption of pornography incites and causes sexual violence to women.

Pay Compensation if police fail to crack cases

While passing interim orders, on a petition filed by the father of a 15-year-old girl, who was murdered for gain in Pudukottai district in March 2011, Justice S Nagamuthu of the Madras High Court held that, the State government is liable to pay compensation to the victims even in cases which remain unsolved for years together and recover the money from the criminals after the police succeed in nabbing them and held that, under the Victim Compensation Scheme, framed by the State government in 2013 following the introduction of Section 357A to the Code of Criminal Procedure in 2009, provides for a compensation of Rs. 3 lakh in cases of death, the judge ordered that a cheque for the amount should be handed over to the present petitioner and his wife in open court on July 27.

Court further opined that, “when a citizen’s right is infringed by an unscrupulous criminal and when the crime could not be even detected by the State agencies, then the State government is liable to pay compensation.” While hearing the parties, Court observed that, “The State is constitutionally obliged to guarantee a dignified life to its citizens and it includes sufficient safety and safeguard to their person and property… but here is a man who has been waiting for justice for the past four years having lost his lovable daughter in her teenage.

He is crying for justice at least to know the perpetrator of the crime. Court further observed that, “The sufferings of the petitioner and his other family members and the mental agony and trauma caused to them as a result of the occurrence cannot be viewed lightly. Article 21, considered to be heart and soul of the Constitution, guarantees a very precious fundamental right to life which includes fair investigation and fair trial as against any crime.”

Don’t hang the convicts hurriedly and secretly, says Supreme Court

Supreme Court on in its recent judgment said that the execution of death sentence cannot be carried out in a hurried and secret manner. A bench of justices AK Sikri and UU Lalit of the Apex Court observed that proper procedure must be followed by Government authorities and execution cannot be done till the convict exhausts all remedy available to him to save his life.

Supreme Court, while quashing the execution warrants of a young woman and her lover, convicted for killing seven members of her family including a 10-month-old baby in Uttar Pradesh in 2008, noting that it was issued “in haste” by giving a go-by to mandatory guidelines.

Holding that, the death convicts cannot be denied fundamental right to life, observed that Government cannot hang condemned prisoners without giving him prior notice and allowing him to meet family members.

“Right to life under Article 21 of the Constitution does not end with the confirmation of the death sentence. The basis to the right to dignity also extends to the death row convicts. Therefore, the sentence of death has to be executed with total dignity.

“That is why there are many judgments mandating the manner in which the death sentence has to be executed,” the bench said and added that “therefore the procedure prescribed by the Supreme Court and the Allahabad High Court for execution of death sentence is in consonance with Article 21”.

Apex court further observed that right to life does not end with the confirmation of the death sentence observing that the basis to the right to dignity also extends to the death row convicts. In the given case Apex Court observed that the death warrant was signed by the Sessions Judge in haste without waiting for the convicts to exhaust the available legal remedies.

Misuse of sexual harassment laws in India

Raghavi Viswanath

The Indian judiciary has seen a decelerated evolution with regards to sexual harassment laws. This article seeks to highlight and analyze the various flaws in the legal apparatus to deal with sexual harassment as it exists today.

One of the most dubious provisions is Section 498-A of the Indian Penal Code. While the provision has been created to protect women from marital violence, the arbitrariness that it confers upon the police authorities as well as the women who allege domestic violence has been received with opprobrium and accused of fostering misogyny. Domestic violence under Section 498-A is a cognizable, non-bailable and non-compoundable offence. Such an arrangement lets no room for out-of-court settlements. The petitioners do not have the option of revoking the charges. Complaints filed under this Section also warrant immediate arrests of the husband and the family members where necessary. A necessary implication of the non-bailable nature of the offence is the bleak possibility of the marital relationship being restored. The impact of these consequences is manifold because the charges are irrevocable. Statistics show that in the period of 2011-2012, there was a 9.4% increase in the number of cases registered under Section 498A ((SauravDatta, What Powers the “Section 498-A misuse” bandwagon?, 5 July, 2014, available at http://www.dnaindia.com/india/standpoint-what-powers-the-section-498a-misuse-bandwagon-1999791, accessed on 24th January,2015)). However, its counter-narrative lies in the fact that the conviction rate is a miserly figure of 15% ((ibid)).

Suggestions have been made to amend the provision that has oft-been termed diabolic. The Malimath Committee on Criminal reforms (2003) suggested that the offence under Section 498-A be made compoundable and bailable. This view was reiterated in the 243rd Law Commission Report. Justice CK Prasad in his judgment in the case of Arnesh Kumar v State of Bihar ((SLP (CRL.) No.9127 of 2013))also highlighted the pressing need to balance the interests of the woman as well the stability of the family.

Another legal breakthrough is the Sexual Harassment of Women at Workplace Act, 2013 that was enacted after more than a decade of deliberation and re-examination. The landmark judgment of the Court in the Vishakha case was accompanied by a set of guidelines, in lieu of India’s international and constitutional commitments( such as the Convention on Elimination of All forms of Discrimination Against  Women and the right to safe work environment and right to freely practice one’s profession enshrined in Articles 19(1)(g), 15(3), 21 and 14).The Act , in the backdrop of the Court’s decision in the MedhaKotwal case and the Vishakha case, laid down a framework for investigation of complaints of sexual harassment . The mandatory nature of the Act can be attributed to the prescribed punishment for non-compliance. It not only protected the female employees, but any woman, whether employee or not, who was sexually assaulted within the premises of workplace as defined in Section 2(o) of the Act.

The Act has been touted to be the torchbearer of feminist legislation for several reasons, Firstly, the Act is not gender neutral and men are barred from filing similar complaints. The employer is also held liable for sexual harassment in places like taxis, hotels and also the offices of clients, where the employer hardly has any authority or control ((Available at http://www.avoiceformen.com/feminism/feminist-governance-feminism/indias-new-sexual-harassment-at-workplace-law/, accessed on 24th January,2015)). The investigation Committees such as the Internal Complaints Committee and the Local Complaints Committee have powers equivalent to a civil Court as enumerated in Section11.  However, the members of such Committees need not have any legal backing. The ambiguity of such criteria is heightened in the case of the Local Complaints Committee where the Presiding Officer should be ‘committed to the cause of women’( used in Section 4 and Section 7 of the Act), a subjective standard that can be neither justified nor disproved. Moreover, the inclusion of such a criterion suggests pre-conceived gender biases and this violates the general standards of impartiality.

The Act does not fall within the domain of the Right to Information Act. Therefore, details of false complaints or fabricated cases will not be available. As per Section 15 of the Act, action will be taken for false complaints. However, if the complaint is not substantiated, then the woman will be provided complete immunity. Furthermore, the identity of the woman will be kept confidential even in cases of false complaints. The compensation prescribed under the Act eschews the principle of equality before the law as it is awarded progressively, proportionate to the income earned by the respondent.

The draconian character of the legislation has drawn the attention of several authorities. The Central Administrative Tribunal, in a bench comprising of Judges KB Suresh and PK Pradhan, adjudicating upon cases of sexual harassment at the workplace, characterized Section 4 and 7 of the Act as ‘unconstitutional’ ((Krishnaprasad, CAT finds illegality in law against sexual harassment at workplace, The Hindu, 13 July, 2014, available at http://www.thehindu.com/news/national/karnataka/cat-finds-illegality-in-law-against-sexual-harassment-at-workplace/article6204747.ece, accessed on 24th January, 2015)). The Bench held that the legislation was ‘double-edged’ and the Vishakha Committees found sufficient leeway for manipulation. The fear of punishment compelled even the higher echelons of authorities to dismiss their employees even before adjudicating the merits of the complaint.

On the flipside, the existing framework has been misused to impede justice to the female victims in most situations. Marital rape, in India, continues to be a standing example of such travesty of justice. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed ((Priyanka Rath,  Marital Rape and the Indian legal scenario, India Law Journal, Available at http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html, accessed on 24th January, 2015)).

With the case of R v R (([1994] 4 All ER 481 [HL])), the English Courts widened the ambit of sexual harassment by recognizing marital rape. This judgment negated the oft-believed concept that marriage leads to natural implication of consent of the wife to sexual intercourse.  However, marital rape still eludes the Indian legal framework.  The root cause of this problem lies in the archaic construction of the statutory provisions pertaining to rape, namely Section 375 and Section 376 of the Indian Penal Code, both of which explicitly exclude sexual assault on the wife. The law further discriminates between marital bonds and prescribes punishment for marital rape only if the wife is under 16 years if age beyond which she has no remedy. Furthermore, since according to Section 122 of the Evidence Act, the communication between a husband and a wife cannot be treated as evidence unless for a persecuted offence, law does not allow any evidence for corroboration of marital rape.

While the 172nd Law Commission report did suggest changes to broaden the scope for justice by deleting Section 376 A, the victim suffers a ‘second rape’ in the hands of the law itself. The procedural laws are also used against the interests of the victim to stifle her. One of these defenses is Section 155(4) of the Evidence Act under which the victim can be questioned about her past. The element of physical evidence to prove lack of consent has deterred several victims, especially in the lower Courts. As India matures as a democracy, it is imperative not only for laws to be enacted, but adequate safeguards to prevent their abuse so that the best interests of the victim are promoted.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – An Analysis

Vishnu S Warrier

Sexual harassment is an act that creates a hostile working environment which may be by way of cracking lewd jokes, verbal or physical abuse, circulating lewd rumors etc. Though, India had signed and ratified Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) way back in 1993, we did not have a specific legislation to address the issue of sexual harassment at Workplace. Till 1997, facing victim of sexual harassment at the workplace had to lodge a complaint under Section 354 ((Criminal assault of women to outrage women’s modesty))and 509 ((Assault or criminal force to woman with intent to outrage her modesty))of the Indian Penal Code 1860. However, scenario changed when Supreme Court stipulated the famous Vishaka Guidelines though its landmark judgment in Vishaka and others v State of Rajasthan ((Word, gesture or act intended to insult the modesty of a woman)).

Further, Court observed that, the consideration of “CEDAW and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers. Accordingly, Government of India passed the Sexual Harrassment of Women at Workplace (Prevention, prohibition & Redressal) Act ((Hereinafter the Act)), to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto, and the same has been made effective on December 9, 2013 ((Gazette Notification dated December 9, 2013)).

The Act will ensure that women are protected against sexual harassment at all the Workplaces, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth ((Press Information Bureau, Government of India (Dated November 4, 2010). Protection of Women against Sexual Harassment at Workplace Bill, 2010, last accessed on December 12, 2013.)).

Key Features of the Act

Sexual harassment at Workplace

The Act defines sexual harassment to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature ((Section 2 (n).)). It may further include any promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems ((Section 3 (2).)).

Workplace, Employer, Employee

Workplace is defined to include all organizations, and any other places visited by an employee during the course of work ((Section 2 (o).))and it covers every woman at the work place whether employed or not ((Section 2 (f).)). Further, the Act defines employer as the person responsible for the management, supervision and control of the work place ((Section 2 (g).)).

Internal Complaints Committee & Other Local Committees

The Act insists upon the formation of an Internal Complaints Committee in every workplace, as per the provisions of Section 4. It further provides that, where the offices or administrative units of the workplace are located in various places, Internal Complaints Committee shall be constituted in all such units.

The Act also empowers the District Officer to constitute Local Compliant Committees in every district. And such Local Committee shall include an eminent woman who is working in the area of Social Work and committed towards the cause of women, as the Chairperson, and two members from an NGO committed to the cause of women ((Section 7)).

Duties of Employer

Chapter VI of the Act entrusts certain duties upon the employer ((Section 19)). Under which, every employer has to;

  1. Provide a safe working environment at workplace;
  2. Constitute an Internal Complaints Committee and conspicuously display the order constituting the Committee;
  3. Organize workshops and other training programmes at regular intervals for sensitizing employees;
  4. Provide assistance during any inquiry;
  5. Initiate actions against the perpetrator; and
  6. Provide assistance to the women if, she prefers to file complaint under the provisions of Indian Penal Code.

Redressal mechanisms – Complaint filing & Inquiry initiating

Chapter IV of the Act prescribes the procedures to be followed in filing complaint. Under the provisions of this Act, aggrieved women shall make a complaint in writing to the Internal Complaint Committee within three months of the last incident. In case the women is not in a position to file complaint due to her physical or mental incapacity, death or otherwise, her legal heir shall file the complaint ((Section 9)). In the absence of Internal Complaint Committee, complaint shall be filed with the Local Committee ((Id.)).

The Committee is required to complete the inquiry within a time period of three months. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be. They are mandated to take action on the report within two months. On request from the complainant, the committee shall provide for conciliation ((Section 10)). Complainant may also seek other remedies, including initiating criminal proceedings under the provisions of any other laws in existence.

Penalty & Appeal

The Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act, in case the allegations are proved. Besides, the Committee may provide for monetary compensation to the complainant. Further, whoever contravenes the provisions of Section 16 ((Prohibition of Publication or making known contents of complaint and inquiry proceedings)), shall be punished with a fine of Rs. 5000/- ((Section 17)). Any person aggrieved by the recommendations of the Committee, shall appeal within 90 days of the recommendations. All such appeal shall be preferred to a Court/Tribunal ((Section 18)).

Analysis & Major Issues

  1. Act insists upon the employer to constitute an Internal Complaints Committee at every unit. Practically, it may be impossible for big employers.
  2. Definition of employee is in its wider sense. Hence, it could be interpreted that, even a “domestic worker” who is working at home shall come under the protection of this Act.
  3. Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country needs to have one such person in the Committee. There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available ((PRS Legislative Brief, The Protection of Women against Sexual Harassment at Work Place Bill, 2010 available at http://www.prsindia.org/uploads/media/Sexual%20Harassment/Legislative%20Brief%20-%20Sexual%20Harassment%20-%2020May11.pdf last accessed on December 12, 2013.)).
  4. Act doesn’t provide the maximum number of members which shall form part of the Committee.
  5. The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. however, the composition of the Internal Committee does not require any member to have a legal background. Moreover, the Act does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge ((Id.)).
  6. Act provides that every District Officer shall constitute a Local Complaints Committee in the district. However, jurisdiction and functions of these committees have not been detailed. It is also unclear whether the block or taluk level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases only.
  7. Act provides that in case a committee is of the opinion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. However, the provision also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant. Though there may be merit in providing safeguards against malicious complaints, this provision penalises every false complaints, which may not be malicious. This could deter women from filing complaints.

*** This article was initially published at eMagazine of ICSI Mysore Chapter (Edition 121, February 2014)

GOING BACK TO SQUARE ONE: SC shows red signal to Gay rights

Aastha Mehta

In a thought-provoking judgment on Wednesday, Supreme Court of India describes homosexuals as “miniscule fraction” of the population, a term which has not gone too well with those who have been fighting to get a voice in the mainstream, starting from agencies working for Gay rights to NGOs, and the all those who were directly involved with the outcome of the case.

The court has made certain observations which has shown how section 377 of IPC is constitutional, washing away the wave of hope which had come into the homosexual community by  the earlier Delhi judgment which gave gays and lesbians an opportunity, by declaring section 377 of IPC as unconstitutional to Article 14 and 21 of the Indian Constitution. The earlier judgment was a step in the positive direction for the LGBT community, since it declared Section 377 as unconstitutional, thereby allowing the much-sidelined, tortured and depressed community to be able to stand up at par with the privileged class. But the recent decision has been a blow to the tolerant and liberal approach taken by the High Court of Delhi, bringing India again on the threshold of insensitivity, anguish and suffering of this community.

WHATS CHANGED? COMPARISON WITH DELHI HC JUDGMENT

The earlier judgment which legitimized the LGBT sexual rights rejected the arguments laid down in the affividavit of Ministry of Home Affairs (MHA) which showed antiduvilian an anarchical thought process by justifying the retention of Section 377 by writing that deletion of the provision will increase delinquent behavior and will give unfetter license to the homosexuality (page 11 of Delhi Judgment). They also derogate sexuality as a disease, which needs to be curbed. Though the Supreme Court does not approve such an extreme stance taken in the earlier affividavit, nevertheless, it views homosexuality as a non-conforming behavior making, since the supreme court judgment does not rebuke the Home Ministry for morally-discouraging point of view, nor does it show its own opinion on the subject, making the judgment based on how Section 377 does not come in the way of fundamental rights.

HC can be considered as a pioneer for enlarging Article 21 to even include within its meaning, to retain one’s core identity, and projects right to privacy, dignity and autonomy important constituents of fruitful human life. It would be pertinent to quote the judgment wherein it say “Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Indian Constitution”. Somersault has been the path which the apex court has conveniently taken, to avoid being a moral custodian an strictly dealing with the legal aspects of such an issue. Supreme court judgment has been singularly focused on whether it can strike down this provision which has been more than 100 year old, on the basis of some NGO reports, public-spirited individuals, and on the precedential value of foreign judgments wherein homosexuality has been accepted.

Appreciable is one very emotional and academic point which the High court has addressed, which unfortunately has not even been given a passing mention by the recent judgment. On the basis of commendable and reliable authorities, High Curt quoted Dr.Ambedkar’s words as reproduced in the book of Granville Austin “Indian Constitution: Cornerstone of a Nation” as follows “popular morality or public disapproval of certain acts is not a valid justification for restriction of fundamental rights under Article 21.” Elaborating further whether the public opinion of dejection and hatred for homosexuals should form a base for trampling rights of this community it said “Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.” Such a stand would have been more welcome if it came from the apex court, which would have meant freedom from subjection and access to health care facilities especially for HIV/AIDS for this LGBT population.

Summarily the apex court avoided the question whether is it within the realm of state interest to criminalize homosexual conduct, which was tactfully not ventured into at all, by placing reliance on the case of Gobind v. State of Madhya Pradesh (1975) 2SCC 148 which in ratio decidendi laid that right to privacy is not an absolute right, although while quoting the judgment in verbatim, it also points out the obiter dictum which is one possibility which even the supreme court relied upon which is as follows, “ the question whether enforcement of morality is state interest sufficient to justify the infringement of fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is function of state”. (as held in Gobind case).

OBSERVATIONS OF THE SUPREME COURT DECISION

The decision fails to account for the plights of the this ignored community, which was the major argument used by counsels of the Respondents, and has gone into detail how Section 377 of IPC should be interpreted, in the light of constitutional provisions. One very important aspect of this decision is that court has used technical doctrines in interpreting the words of Section 377 by going to discuss doctrine of severability, interpretation of vague statues etc. and has finally come to the conclusion on the support of various decisions that possibility of abuse by authorities will not render a provision or an Act as unconstitutional. This has been laid down as an answer to the arguments of Respondents, when they went on to highlight how the police authorities have been arbitrarily using section 377 as a tool to harass homosexuals, and treating them at par with deviants and criminals. To quote the decision the court said “In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not reflection of the vires of the section.”

The judgment leaves us with a debate by saying that Legislature can definitely look into the desirability of amending this section, however it seems too early for the judiciary to take a stand on it by way of this judgment. It has also relied on Padma Sundara Rao (dead) and Ors v. State of Tamil Nadu an Ors. [2002] 255ITR 147 (SC) by saying that if a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. This shows how under the garb of various legal strict doctrines, court has virtually closed the doors for homosexual rights, keeping it on the whims and fancies of Parliament to decide on the fate of Section 377 of IPC.

With regard to what Section 377 of IPC intends, Supreme Court has laid down that Section 377 would apply irrespective age and consent, and further goes on to say that Section 377 does not criminalize a particular people or identity or orientation, and merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation. (Page.77 of judgment) However, it seems surprisingly contradictory since on the same page of the judgment, the court admits the fact that there is no uniform test which can be culled out of to classify the acts as “carnal intercourse against the order of nature” which are the precisely the words used in the section 377, which makes the statement that this section regulates the sexual conduct very weak, and even to some extent very illogical. When the bench itself has said that the interpretation of these words is difficult, it seems highly unlikely for the lowers courts to have guidance to what would constitute an act of “carnal intercourse” under this section. It leaves good amount of scope for interpretation for other lower courts, and at the same time for conflicting decisions also.

Lack of particulars and factual matrix by the Respondents has also been a major issue at which the court has turned the decision against their favor. Court has held that Respondents have failed miserably to furnish particular incidents of the torture or alleged discrimination meted out by the agencies or people in general towards the homosexuals, and indirectly has supported the arguments of the appellants (Page 21) that there is a dearth of tangible material on record for the Respondents to attack on the constitutionality of the provision. The reports and the affividavits which were placed before the court were thought to be too less and also “academic” for being considered as strong support for declaring the provisions as void. Therefore bench exercised “self restraint” and where guided by the presumption of constitutionality in the favor of the statute.

Dealing with the question which is of uttermost importance here is, whether Section 377 of IPC and Article 14 of the Constitution are in conflict, the court relied on landmark judgments which have given the true essence of this fundamental freedom, and has laid down that Article 14 is nowhere violated by Section 377. The contention of Respondents was that section 377 arbitrarily differentiates between heterosexual acts and homosexuals acts, without any rationality. It also was argued by them that homosexuality shouldn’t be seen as threat to morality or as criminal behavior. Court gave the reason that those who fall under the ambit of Section 377 cannot cliam that Section 377 is irrational, primary reason being that Section 377 merely defines he offence and prescribes punishment and does not discriminate by the wording of the statute against the homosexuals.

Court also discussed the right to privacy under Article 21 which was also resorted to show that this community’s personal choices and liberty have been compromised with, leaving them into the annals of depression and sidelining them from mainstream life. In stark contrast, the court heavily relied on cases which showed that right to privacy is not an absolute right and can be lawfully taken for prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others [Mr.X v. Hospital Z, (1998) 8 SCC 296]. Subtle underlying point is that even the judiciary sees that such behavior might be affecting the majoritarian view of morality and has the potential to shake the roots of marriage as an institution.

Therefore the court has applied an interpretation which burdens the Parliament to “make or break history” and has crafted the judgment in such a manner that it focuses a lot on technicalities and little on the real sorrows of these people, who have suffered tremendously. Apex court has also turned a blind eye on the international principles of Yogyakarta which were used to justify homosexuality by Delhi High Court, and has stuck to the well-treaded beliefs, largely wrong about    LGBT community. Pondering upon the title of the article, I guess apex court has gone to the 42nd Law Commission Report which gave suggestion for retention of Section 377, primarily on the basis of the societal disapproval for such “queer” behavior as some put it, and therefore we have gone back to the times when societal reaction, moral policing and enforcing what is socially acceptable has again been predominantly affecting the judiciary.