January 28, 2016

Analysis of liability of celebrities for product endorsements

By Ayushi Singhal, 3rd Year Student at National University of Juridical Sciences

Do celebrities owe us a duty for the claims they make in advertisements?

The favorite midnight snack of many, Nestlé’s Maggi has been banned by the Food Safety and Standards Authority of India (FSSAI) because of problems associated with the quality and labeling of the product. The notices issued to various celebrities who had been endorsing Maggi noodles and the orders for lodging FIR against them have reignited an extremely important legal debate concerning the liability of celebrities for the product endorsements they make. This article discusses the duty of celebrities for their endorsements, relevant laws in India and the precedents in some other countries. 

Making a case for celebrity endorsement

There are many questions which crop up when we seek to make celebrities liable for their claims in advertisements. Such questions include; whether people actually believe in the claims made by the celebrities, and whether  the products are bought because of endorsements or are they bought first and endorsements only reassure the consumer. There is no straitjacket formula to these questions. Although, it certainly depends on factors like, “the context, the product or service endorsed, the expertise of the celebrity in that area, the mass appeal of the celebrity and the reliance of individual consumer”. 

This brings us to a more nuanced argument. Does the fact that celebrities have a right to publicity which they harness economically while advertising, impose a duty on them to not use this right in a manner detrimental to the general public? Or since the celebrities have a right to publicity, the audience has a reciprocal right of reliance? After all, unlike the movies, the fact that the plot and characters are fictional is never reflected or shown in an advertisement. In fact the representations made by the likes of Ms. Padukone are a “cause in fact” of the pecuniary loss to the consumers to the extent of the difference between an effective gym equipment for losing one’s weight and the Kellogg’s Special K. Similar arguments can be made for every misleading advertisement. 

Some make a superficial distinction between the celebrities giving personal testimonies versus the celebrity playing a role in the advertisement, for instance Ms. Dixit is playing the role of a mother in the Maggi advertisement. It is argued that a celebrity should be liable only when (s)he is making a personal testimony and not when (s)he is playing a role of another. However, it is extremely difficult to accept this difference. Audience generally does not think this way when relying upon the claims. Further, as stated above, unlike films, the fictional and impersonalised role is not emphasised in advertisements, thus making no space for this argument. 

Another argument put forth by the people disagreeing with making celebrities liable is based on the fact that celebrities do not have an option through which they can identify the truthfulness of the statement which they are made to say in the testimonial by the ad-gurus. However a simple counter to this is requiring celebrities to test, try and experiment the product to find out. While this may sound a little far-fetched in the case of Maggi noodles, checking the amount of lead is the duty of the FSSAI and not Ms. Dixit’s and every single pack can surely not be checked by the celebrities, yet celebrities can certainly be made liable for making sweeping claims like a person drinking Drink X can grow twice as taller as (s)he would grow drinking Drink Y (the ad for the health drink Complan).

What are our neighbors and partners in trade doing about it?

In USA, the Federal Trade Commission Guidelines prohibit deceptive and misleading endorsements by celebrities and make celebrities liable for the same. The endorsers are required to reflect their “honest opinions, findings, beliefs, or experience” in the advertisements. In fact, the advertisers can continue to use the endorsements only as long as the advertiser has a good reason to believe that the endorser continues to remain a bona fide user of the endorsed product.  

In Europe, the celebrities follow a self-imposed code whereby they refrain from endorsing products harmful to the health of the general public like alcohol, medicines etc.

Korea on the other hand has an Advertising Self-regulation Institution which issues guidelines with respect to endorsements and reviews the endorsed advertisements making false advertisements a rarity.

Among our neighbors, China makes the endorsers jointly liable with the service provider for the harm caused by the product.

Pakistan also has laws forbidding false and misleading advertisements, however it is uncertain whether these laws will also include liability of celebrities for their endorsements.

The Malaysian Code of Advertising Practice requires that the endorsements or testimonials contained in advertisements should be based on genuine experience of the endorser over a period of time. Malaysia also has special guidelines for “[p]ersons, characters or group who have achieved particular celebrity status with children”. These celebrities are forbidden from promoting food or drinks in a manner that may undermine the need for a healthy diet however the endorsers are not liable for the same since sanctions are in the form of “withholding of advertising space from advertisers and the withdrawal of trading privileges from advertisers/ advertising agencies”.

Singapore has similar laws  relating to false advertisements and is also cogitating to put into place specialised guidelines pertaining to children.

In Japan on the other hand celebrities participating in false endorsements are made to apologise publicly. This harms the reputation of the endorser decreasing the employment opportunities of these people, forcing celebrities to refrain from making claims with regard to the quality or effectiveness of a product.

What is the law in India?

Section 24 of the Food Safety and Standards Act, 2006 puts restrictions on misleading advertisements. It states, that “no person” shall be allowed to engage in misleading representation concerning the “standard, quality, quantity or grade-composition” and “need for, or the usefulness” of a food product. (S)he should not make any statement which “gives to the public any guarantee of the efficacy [of the product] that is not based on an adequate or scientific justification thereof.” Section 53 of the Act describes the penalty for such false advertisements which can extend to ten lakh rupees. This penalty applies to “any person” and hence should ideally include the celebrities; however there is no case law to support this proposition. 

The Central Consumer Protection Council (CCPC) has also decided to issue specific guidelines to this effect after the Madhya Pradesh High Court directed to set up an advertisement monitoring panel as per the Vibha Bhargava Commission (gave recommendations on monitoring of ads). These guidelines if enforced will allow consumers to claim compensation from celebrities for misleading claims made regarding a product, recklessly or with knowledge that the claim is false. 

January 8, 2016

Marital Rape within Child Marriage: A Discriminatory Provision

By Bhumika Maheshwari, 3rd Year Student at National University of Juridical Sciences


Indian Penal Code, 1860 (‘IPC”) under Section 375 provides an exception that ‘Sexual intercourse by a husband with his wife, who is not being under the age of 15 years, is not a rape’. On the other hand, Criminal Law (Amendment) Act, 2013 changed the minimum age of consent for sexual intercourse to 18 years against the earlier provision of 16 years. Consequently, there arises an anomaly as to the difference in position of a married Girl and an unmarried girl under the same law. An act of sexual intercourse with a married girl by her husband is not a rape if she ages above 15, contrary to the position of an unmarried girl, where, any kind of sexual intercourse, with or without consent, will amount to rape against her if she is below 18 years of age. Hence, it is quite clear that IPC distinguishes between the positions of the minor girl based on their marital status.

Marital Rape Exception: Contradictory to Other Statutes

Larger State Policy, since, the year 2000 has recognized child as ‘any person under the age of 18 years’, however, the above exception under IPC distinguishes the age of a child from all other statutory provisions. Statutes like Prevention of Child Marriage Act 2006 (‘PCM’), Protection of Children from Sexual Offences Act 2012 (‘POCSO’), etc. all recognizes the child as ‘any person below the age of 18 years’.

PCM Act as its objective prohibits the solemnization of child marriages. In other words, it prohibits solemnization of those marriages where the girl ages below 18 years and boy below 21 years. Hence, a female below 18 years of age cannot marry a male of any age and vice-versa. The Act provides for the penalties against the persons who solemnize, promote or allow the child marriages. However, the Act doesn’t lay any authority over the sexual relations emerging out of such prohibited child marriages. But the Act, indirectly, by recognizing and legitimizing the children borne out of such marriages permits the sexual intercourse within the child marriage.

Further, POCSO, which was recently enacted, was enacted with the objective of protecting children from offences like sexual assault, pornography, sexual harassment, etc. and to provide them with the children-friendly trial system. This Act doesn’t recognize the autonomy of children in any form of sexual matters. Children can be convicted for any of the above crime under the Act. It also provides under Section 2(1)(d) that a child can be any person who is below 18 years of age. Therefore, any form of sexual intimacies or interactions with or among the children below the age of 18 years is punishable under the Act. 

Marital Rape Exception: A Draconian Provision

Marital rape indicates towards those unwanted sexual intercourses against a wife by her husband, where she is unable to give consent either because of force or threat of force or by physical violence exercised by the husband. In other words, it is a brutal perversion against the modesty of the wife by the husband without her consent, where she is mentally and physically or sexually harassed. 

Traditionally, wife’s role within a marriage was considered as docile, meek and of a home-maker. Maintaining sexual relations in a marriage were regarded as obligatory and a societal taboo. Discussing about it in the open was also very rare; hence, the awareness regarding it remains dismal. Economic dependence upon the husband is still a very crucial factor hindering the right of wife being heard and respected. Further, the societal pressure of being a ‘good wife’, to quietly serve, to not complain against anything in the public, makes the position of wife miserable and counseling inaccessible.

However, despite all this, the significance of volition of a woman in making its own decision can’t be over-stressed. Hence, it is quite ironical, that a woman can preserve her dignity, her right to life and personal liberty under the Constitution but it can’t protect her body from being sexually harassed within a marriage. So far, only Section 498-A under IPC (deals with cruelty) can be resorted to by a married woman for protecting herself from ‘vicious conduct of the husband’. But, still, the definition of the term ‘vicious’ is not clearly scripted so as to decide the standard of measure for court’s interpretation as to what amount to ‘vicious’ within a married relationship. Will the excessive desire of sex by husband vicious? Is consent for sex a sine qua non? Or is a marriage a permit for committing rape? These questions are not answered, as both the legislature and the judiciary are silent on the same. 

Marital Rape Exception within Child Marriage: A Wrong Law 

1. Marital Rape Exception is violative of POCSO

As stated above, the IPC provides for a marital rape exception, however, on the contrary, POCSO doesn’t embed any such exception. It provides that every act of sexual intercourse committed against a person who is under 18 years of age is a crime, irrespective of the age or gender of either the victim or the accused. Further, a sexual assault will amount to a more aggravated form of sexual assault if the penetrative sexual intercourse is committed by ‘a person who is the relative of the child either through blood or marriage or adoption or guardianship or through a domestic relationship with the parent of the child or who lives in the same household with the child’. 

Hence, it is clear, under POCSO, that a spouse (who is related to the girl child with marriage) is liable to be convicted for an aggravated crime of a penetrative sexual assault committed by him against his wife, who being below the age of 18 years. This is in no way affected with the legal status of the marriage, i.e. whether it is entered into voluntarily or not, hence, any sexual contact with the wife under 18 years of age is punishable under POCSO. 

This provision in POCSO is in contravention to the exception provided under Section 375 of IPC. Hence, there arises a very pertinent question as to whether POCSO will override the IPC or not? Answer to this is provided in the POCSO itself. Section 42-A of POCSO, which was inserted by the Criminal Law (Amendment) Act, 2013, states that:

Act not in derogation of any other law: - The provisions of this Act (POCSO) shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of its inconsistency.  

Section 42-A of POCSO, hence, clearly implies that in case any controversy arises as to the application of POCSO and any other statute, the former will come into play and over-rides the application of all other laws. Hence, the exception under IPC to marital rape till the age of 18 will not apply, for being contradictory to POCSO. Therefore, in all cases where the bride or the groom is under 18 years of age, they can be convicted with the charge of aggravated crime of penetrative sexual assault under POCSO.

2. Marital Rape Exception is violative of Article 14, 15 and 21 of Constitution

The marital rape exception as provided in the Section 375 of IPC is violative of the fundamental rights provided under the Articles 14, 15 and 21 of the Constitution. The reason behind such violation is the discriminatory nature of the provision itself, which distinguishes between the position of a girl aging between 15 to 18 years and girl aging above 18 years on the basis of their marital status, which has no reasonable nexus to the purpose it sought to achieve. 

Delhi High Court, also, in a case on its own motion Lajja Devi v. State  held that ‘it is distressing that the IPC “acquiesces sexual intercourse” by a man with his wife above the age of 15 and below the age of 16 years [Criminal Law (Amendment) Act was brought in the year 2013, while, the above case was decided in the year 2012, therefore, during the trial of the Case ‘age of consent’ was 16 years] within a child marriage.

Further, with the change in the societal structure, the age of consent for entering into sexual relationship has also changed. In the year 1860, it was 10 years, in 1940 it was changed to 16 years and recently by the Criminal Law (Amendment) Act, 2013 it was further increased to 18 years. However, the age provided under the exception in the Section 375 of IPC has not been changed; it is still the same, i.e. 15 years. This cannot be justified only on the ground that the concerned person is a married girl. Hence, the above provision is arbitrary in nature and thus, violative of Constitution. 

Additionally, Parliament has also failed to take note of various studies and surveys that shows developing pregnancy owing to sexual intercourse with a girl of age less than 18 years is detrimental to health not only of the girl herself but to the child as well. Hence, the Parliament by permitting or legitimizing the sexual intercourse, within a marriage, with a girl aging between 15-18 years has made the life of the girl and the child (if develops of such intercourse) prone to a considerable risk.

Further, Parliament by upholding the rights of the parents to take decisions about the life of their daughters, below 18 years of age, has violated the rights of the daughter to choose and take her own decisions, to live the life in the best possible manner, i.e. without being forced to enter into any kind of sexual relations only because they have been married of by their parents.

January 1, 2016

Uphaar Cinema Fire Tragedy Case: A Landmark in Criminal Case Compensations?

By Srivats Shankar, 2nd Year Student at National University of Juridical Sciences.

The Uphaar Cinema Fire Tragedy, which took place on June 1997, is regarded as one of the worst fire tragedies that had taken place in post-independent India. However, the fire was merely a consequence of the negligence committed by a number of individuals involved in the case, which as a result amounted to the deaths of over 59 individuals. According to the Delhi High Court, the case involved a number of violations of the Cinematograph Act 1952, that as a result led to the event of June 1997.

During the investigation it was found that a number of serious violations had been made in relation to safety standards, not only by the Uphaar cinema owners but a number of cinemas, dating as far back as 1983. That year was particularly relevant due to a fire that had broken out in a competitor cinema hall, Gopal Towers. This led to a scrutiny of safety standards by the Deputy Commissioner of Police (Licensing). It was found that there were at least 10 serious security violations. These violations were primarily, associated with the Cinematograph Act 1952 and its rules and regulations; it was observed that the licensing conditions and Delhi Cinematograph Rules had been violated, under which the required infrastructure for fire safety had not been implemented.

Among these violations were the lack of sufficient exits and the blockage of space in the basement for evacuation. Additionally, no emergency alerting method for intimating patrons was present. This led to a scrutiny of the standards adopted by a number of cinemas, including Uphaar. These cinemas had to reapply for receiving a license only after they conformed to the minimum security and safety standards. However, the High Court concluded that there was some foul play involved as it was revealed that the cinema did not conform to the minimum safety standards, while it continued to function without meeting the minimum safety standards. It was revealed that they had received some form of 'temporary' licensing that allowed them to continue functioning.

This negligence had its effect on June 13, 1997, when a generator that had earlier in the day malfunctioned had a leakage. This in turn led to an oil spill into the parking lot and escaping into the nearby vicinity, since no drainage system had been established as mandated by guidelines. Eventually the oil was ignited, which according to the court evidence was due to the poor quality of maintenance work carried out on the generator. A total of 59 individuals lost their lives, along with over 100 others sustaining injuries. Most of these deaths were caused by asphyxiation induced by the inhalation of deadly vapours, such as carbon monoxide and carbon dioxide.

Despite the undisputed loss faced by the family members, this case has made two contributions towards compensation given or provided to victims of a case and the quantum of punishment versus the payment of damages. Each of these issues has been increasingly politicized following the Supreme Court order to pay compensation and the quantum of punishment.

The Delhi High Court initially agreed to compensate the families of the deceased an amount of 10 lakhs each, however when this came before the Supreme Court the amount was reduced to 7.5 lakhs. Additionally, the compensation for the victims who suffered from some form of injury fell from 2 lakhs to 1 lakh each. Despite this the compensation provided is regarded as the highest ever given by a court in this country. Apart from that, the two primary accused Ansal brothers were collectively charged a fine of 60 crores, which failing to pay would lead to the serving of an additional two years of imprisonment. Prior to this, the Supreme Court has never handed down such a level of punishment.

It is argued by many groups (including the Association of the Victims of Uphaar Tragedy [AVUT]) that the compensation is insufficient. But it is new ground that the Supreme Court is exploring by offering such large compensation. This has never been seen in the Indian legal system. However, looking back it seems to be the natural course of events that such a large quantum of compensation would be paid to those affected in such a situation.

Referring to the case Prabhu Prasad Sah v. State of Bihar, Justice P N Bhagwati made a very important observation, which was that if someone lacks the ability to pay, then that person must be given the option to either, pay back the necessary amount in relation to compensation or serve the remaining amount in the form of a punishment. Therefore in addition to the amount of compensation that must be determined, the payment capabilities of that individual, should also be considered.

Over time this concept has clearly developed to offer a large quantum of compensation. The Supreme Court has applied the concept of ‘deep pocket theory’ in a certain sense to such situations to serve as a long-term deterrent to groups that do not follow regulations as mandated. However, there have been some questions about allowing the accused in this particular case to finish their sentence if they paid the compensatory amount. It is argued by the AVUT that this is against the idea of justice and the accused in this case must be punished for their actions, which resulted in the tragic events.

The argument put forth by AVUT is restricted to the retributive aspect of criminal law. The judgment given by the Supreme Court in contrast is based on principles of fairness and equality in light of restorative justice. The Supreme Court recognized that, two of the main accused had reached a very advanced stage of life by serving a long period in prison, before the final hearing. Taking all these factors into consideration the Supreme Court gave a relatively sound decision.

On the whole, while it can be argued that the compensation theoretically needs to be higher, the Supreme Court has pushed the boundary and allowed for a wider ambit in relation to compensation for the first time ever and it will be able to build upon such situations if they ever arise in the future.

December 15, 2015

The Relevance of Principles of Prisoners of War in the Third Geneva Convention to members of Islamic State in Iraq and Syria.

By Nandana Rudreiah, 3rd Year Student at National University of Juridical Sciences.

Treatment of prisoners of war

The principles governing the treatment of prisoners of war are part of customary international law which has been codified in the Hague Convention of 1907 relating to laws and custom of war  . The Hague Regulations presented several problems and deficiencies during the World War I because the Convention was practically a codification of the customary laws on war, which were present before the development of advanced warfare. It was not equipped for the scale and the extent of warfare during the First World War and hence this led to the creation of the Geneva Convention of 1929, which was subsequently replaced by the Geneva Convention of 1949 (‘Third Geneva Convention’ or ‘Geneva Convention’) on treatments of prisoners of war. Although the Hague convention was recognised as codified International Customary Law, such recognition has not been accorded to the Geneva conventions. The relatively new Third Geneva Convention while determining the applicability of the convention, adopted the criteria  mentioned in the Hague Convention under the regulations annexed for Article 1. This has been incorporated in Article 4 of the Convention  which with regards to militias and voluntary corps specify that these groups must be led by an individual who would be responsible for the acts of the subordinates, be represented by a distinctive sign recognizable by a distance, carry arms openly and further, most importantly, conduct their activities in accordance to laws and customs of war.   

Can the Third Geneva Convention be applied to the members of ISIS?

The Islamic State of Iraq and Syria has its origins tied to Al-Qaeda and Bin Laden. They were also considered the Middle Eastern wing of the Al-Qaeda since they acknowledged the successors of Bin laden, Abu Musa’b al Zarqawi, and two other guerrilla leaders of the organisation. One of the main arguments advanced for not applying the Third Geneva Convention on members captured from groups such as Al-Qaeda, Hezbollah in Lebanon or Taliban in Afghanistan is that first, they do not conduct their activities according to the custom and laws of war recognised by other nations. The brutality displayed by such organisations is unprecedented. They do not treat prisoners that they have captured, humanely; massive killing of soldiers are a common phenomenon. Moreover they fail to establish a recognisable identity. To illustrate the fighters belonging to Hezbollah in Lebanon, when the soldiers threaten them, they drop their weapons and try to blend in with the villagers near by the battleground. Similarly the Al-Qaeda also does not have a distinctive identity. They do not wear distinctive clothing and they also try to blend in with the Afghan tribes present in their area. Furthermore they are scattered and disorganised. Therefore they fail to qualify under the tests prescribed under the Convention. However human rights lobbyists such as the Red Cross have urged to include such groups also under the ambit of the Convention. 

The Islamic State, although originally associated with the Al-Qaeda had undergone drastic and fundamental changes. First, there is a deep division between the Al-Qaeda and the Islamic State due to ideological difference and  now the Islamic state is an independent entity under the control of a self-proclaimed Caliph, Abu Bakr al-Baghdadi. They maintain territorial control over the territories occupied in Iraq and Syria.  Further they can be recognised from a distance because of their distinctive black uniform. They also carry arms and ammunitions openly. The  Organization  is highly structured with a strict sense of hierarchy. The German Journalist Jurgen Todenhofer who was granted access into the Islamic State documented that the organisation has a recruitment process where on an average 400-500 people are recruited per day. It is also common knowledge that social media is used to promote its agendas. They have control over oil reserves in the occupied territories and they sell such reserves and fund the organisation. This is not the only source through which they get funds, 20-30% of their funds come from the ransom that they receive from the abduction of refugees. Further they also sell ancient artefacts and historic documents to museums. Moreover the organisation is also rumoured   to  have received huge funds by nations that are interested in the agendas of the organisation. The primary goal of the organisation is to establish an Islamic State in the occupied territories with the Caliph as the head of state. This transition of the organisation is truly remarkable . The Islamic State fulfils all the conditions present in the Geneva Convention except the one which speaks of the conduct of armed militias and voluntary corps. The conduct of such groups is the deciding factor, which determines whether they come under the ambit of the Convention. The Islamic State is known for its beheadings, mass killings and brutal treatment of prisoners. They flout the law and customs of war. Therefore strictly speaking the Geneva Convention cannot be applied to the members of the Islamic State. 

However human rights activists such as Anthony Dowrkins argue that the Geneva Convention must be applied to such groups also, but most nations are staunchly against the application of the Convention to these organisations.  The rationale behind such a stance is that a state would follow the Geneva Convention during war with another state with the belief that the other state would also follow such convention. They act as ground rules for war, but when face with a stateless enemy who refuses to follow the ground rules, the state’s incentive to follow them ceases to exist. The reasoning presented by the states is flawed because there must be no incentive to protect human rights. Moreover the Geneva Convention contemplated that the conduct of a state be independent of the conduct of other state or armed militia.


The Islamic State is not similar to the conventional terrorist organisation such as the Taliban or the Al-Qaeda. It occupies a middle ground between such organisations and armed militia recognised by the Geneva Convention because of their conduct in treatment of prisoners of war. This prevents them from application of the Convention. Although the nations are reluctant with the application of the Convention to these groups by citing that they do not follow the law of war, it is the opinion of the author that the Convention should be applied to the member of the ISIS because one of the primary reasons attributed towards the creation of the Geneva Convention was the protection of human  rights during war It forms part of a series of Conventions and protocols  The legal cynicism towards the application of the Convention to terrorists undermines the body of law that has been regulating war for a century. The war on terror without a regulatory body would turn barbaric and a century’s worth of jurisprudence relating to protection of human rights would be lost.

December 14, 2015

Death to Yakub Memon: Should extraordinary rendition be a mitigating factor?

By Sarfaraz Ahmed Khan

The article of Mr B. Raman, the head of the Pakistan Desk at the Research and Analysis Wing (RAW), published on rediff.com adds new dimensions to the Yakub Memon case. It has raised questions about adherence to the principle of fair trial and the rule of law by Indian investigating and prosecuting agency. If Mr. Raman’s statements are true, Memon was informally apprehended in Kathmandu with the help of the Nepal police, brought to India by road and thereafter flown to Delhi by a special aircraft and formally arrested in old Delhi. Mr. Raman, who was coordinating the entire operation, has been extremely courageous to put in writing the details of the operation which exposes the illegality committed by the state agency with far reaching consequences on the human rights of the accused and the international human rights obligation of Nepal. The term ‘extraordinary rendition’ refers to various irregular methods employed by a state to bring individuals from another state disregarding the formal legal process of extradition.  

Nepal has abolished death penalty and for it to send someone to another country without ensuring that death penalty will not be executed amounts to violation of human rights of the accused. It seems that the Indian investigating agency has indulged in extraordinary rendition to do away with the requirement of providing assurance as was given in Abu Salem’s case to Portugal. Indisputably, India can impose death penalty but the accused was brought from a country which has abolished death penalty. Had the due legal process been adhered to, death penalty would not have been awarded. Should the state be disallowed to take advantage of deliberate illegality? Does such illegality constitute a mitigating factor to determine the quantum of punishment? The answer may be ‘yes’ in all probabilities. In Memon’s case the court was kept in the dark about the illegality of the rendition process and this can tantamount to the violation of the principles of fair trial.           

Extraordinary Rendition, a violation of human rights of the accused

An extradition treaty between India and Nepal was signed on 2 October 1953 that obliges the two countries to extradite accused persons found within their territory by following legal procedures. Countries having extradition treaties are bound to extradite accused persons in adherence to the due process of law. Since Nepal has abolished the death penalty, it is undoubtedly obligated not to extradite anyone without ensuring protection to the right to life of such person. There are a few cases of other jurisdictions which explain this obligation. The Judge De Mayer of European Court of Human rights (ECtHR) in Soaring v. United Kingdom (1989) observed that death penalty itself constitutes a bar to extradition unless the requesting state provides satisfactory assurances that the death penalty shall not be imposed or if imposed shall not be carried out.

India is not the only country that brings accused from other countries by the process of extraordinary rendition. In South Africa, once an alleged terrorist of Al-Qaida, Mohamed, was taken away by the US Federal Bureau of Investigation (FBI) from Cape Town with the help of state authorities. The South African Constitutional Court in K. K. Mohamed v. Republic of South Africa (2001) had found such rendition to be violative of the constitutional rights of ‘human dignity, to life and of not to be treated or punished in a cruel, inhuman or degrading way.’ In El-Masri v.Macedonia (2012) ECtHR found the act of handing over the alleged accused to CIA agents by the Macedonian authorities inconsistent with his human rights protection. In another case, officers of the Italian military security services (SISMI) and CIA agents were convicted in Italy on the charge of kidnapping an accused whose rendition was carried out from Milan to Egypt in February 2003 (Tribunale Ordinario di Milano -Sez IV Penale-, Sentenza No 12428/09, 4 November 2009). Subsequently the conviction was set-aside on the ground of state immunity. It is important to understand that rendition may amount to abduction if done without following the due process of law.

Power of Arrest under Indian law

Section 48 of the Code of Criminal Procedure 1973 (CrPC) allows the investigating agency to pursue and arrest any accused only within the territory of India. To bring an offender from another country, orders have to be issued by judicial authority as per Section 105B of the CrPC. Impliedly, the Indian investigating agency has not followed the process prescribed under Section 105B of the CrPC. In such circumstances, Yakub Memon’s lawyer might argue that he was kidnapped from Nepal and kept in illegal confinement till the time he was shown to be arrested. In fact, from the point of time he was under custody till the time he had not been shown to be arrested, he was definitely under wrongful restraint and wrongful confinement, both punishable under the Indian Penal Code 1860. His illegal detention also violated his rights guaranteed under Article 21 of the Indian Constitution. Although the validity of trial and conviction is not affected by irregularity in arrest, it is a mitigating factor that should be placed before the court.

Consideration for awarding capital punishment

In Bachan Singh v. State of Punjab (1980) the Supreme Court held that death penalty can only be awarded ‘in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ In this case the Court further imposed an obligation on the courts to draw up ‘a balance sheet of aggravating and mitigating circumstances’ and ‘in doing so the mitigating circumstances have to be accorded full weightage.’ In Machhi Singh v. State of Punjab (1983) the Supreme Court laid down that court can award death sentence only after ‘according maximum weightage to the mitigating circumstances which speak in favour of the offender.’ The illegal arrest and detention of the accused is one of the mitigating factors which should have been placed before the court but the prosecuting agency with the aim of securing death penalty not only failed to enlighten the court on this point but also made false statements about arrest and custody.

Were all mitigating factors before the court?

Did the court really take into account all mitigating factors before awarding capital punishment? Mr. Raman’s article also informs us that Memon had extended his support during investigation in bringing the other accused to India to face trial, and most importantly helped India to establish before the world community the role played by Pakistan’s intelligence agency, ISI, in harbouring terrorism. Mr. Raman argued that the cooperation extended by Yakub Memon is ‘a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.’

            The following mitigating factors were, probably, not known to the trial court while awarding capital punishment: (a) Memon was illegally detained in Nepal and brought to India; (b) the investigating agency had kept him under wrongful restraint and wrongful confinement till the time he was shown to be arrested; (c) the action of both India and Nepal resulted in violation of constitutional rights of accused; (d) the state of Nepal failed in fulfilling its legal obligation under international human rights law; (e) the state machinery in the zeal of securing capital punishment violated the international norms by not adhering to the process of extradition; (f) the Indian state machinery did not present the demeanour of the accused and the support extended by him during investigation; (g) the Indian state machinery made false statements about his arrest and detention.       

Moreover, Prof. Surya Deva of City University of Hong Kong has found after analysing 86 cases decided by the Indian Supreme court between January 2000 and October 2011 that the judiciary has applied the principle of ‘rarest of rare’ in ‘quite an inconsistent and arbitrary manner’ and the principle has outlived its utility. In fact, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) the Supreme Court itself observed that ‘it can be safely said that the Bachan Singh threshold of rarest of rare cases has been variedly and inconsistently applied by the various High Courts’ as well as Supreme Court’. In this backdrop when the absence of minor mitigating factors can change life into death, such nondisclosure on the part of the state before the trial court, in my view, is a serious omission of the investigating and prosecuting agency which not only deprived the accused of fair trail but also prevented the judges from balancing the aggravating and mitigating circumstances to determine the appropriate quantum of punishment. Such omission can only be rectified if the Supreme Court either remits the case to the trial judge to re-determine the quantum of punishment in light of the facts newly revealed or if it exercises its power under Article 142 of the Constitution to commute death sentence to life imprisonment.

November 1, 2013

The painful practice of Breast Ironing in Cameroon

The ethnic groups in Cameroon, a country in west central Africa, have long hidden a very unusual, painful practice. Some call it a traditional ritual. Others think of it as a means to keep the girls away from early age sexual advances and pregnancy. But for the many girls who undergo this ritual, it has become a way of life over the course of time. Most of us have heard about female genital mutilation (FGM) or khatna practiced largely in the Bohra community in India. But only few know that an equally cruel practice exists in Cameroon and elsewhere: breast ironing.

Activists in Africa have already embarked on campaigns against breast ironing to sensitize the community. Breast ironing seems to have travelled from Cameroon to London, where Cameroonian girls are forced to undergo breast ironing in their community, according to experts. Although breast ironing is most common in Cameroon, “similar procedures have been reported in countries including Nigeria, Togo, Republic of Guinea, Côte d’Ivoire and South Africa”, says Amy Hall, a journalist with the New Internationalist Magazine.

Girls, as young as nine, endure scorching pain every day before going to school and, occasionally, at night. Mothers and aunts heat up objects such as coconut shells, stones and kitchen utensils and use these heated, burning objects to pound the breast tissues of their daughters. Helpless school-going daughters, shell-shocked at the barbarism, simply stand perplexed in pain and wait for the ritual to end. It is believed that fathers usually do not know about this practice and, where they do, may remain absent. This goes on for weeks behind closed doors.

Breast ironing flows from generation to generation. It is believed that girls are made to undergo this practice at the age of ten to twelve (pre-adolescence) so that they have sound memories of the methods and can later repeat them on their daughters. Amy Hall spoke to Ashish Goel about her experiences of interaction with women who had undergone breast ironing. Amy describes: “Ben...underwent breast ironing in Cameroon when she was 13 years old. She feels that the experience pushed her into having a child early because of her lack of confidence. She now has seven children and her eldest daughter had her breasts ‘ironed’ by her mother in law, despite Ben’s opposition to the practice”.

Due to the young age coupled with inadequate literacy, the victims do not formally report incidences of breast ironing against their own family members. Because of this, there are often difficulties faced in tracing these incidents and then highlighting them in the media. Amy, who authored an investigative piece on the subject in New Internationalist Magazine, said: “The main obstacles I faced when writing the article was that there is little research on the topic and that it is usually kept behind closed doors”. But why do mothers turn to be so cruel so as to inflict this inexpressible pain on their own daughters? And why do other female members of the family conspire in this heinous crime? “The reason given for the practice is to stop the breasts growing in order to discourage unwanted male attention, early marriage or pregnancy, sexual assault, and rape”, explains Amy.

But there are also a few who refuse to surrender themselves to this brutal practice. Chi Yvonne Leina “was 14 when she saw her cousin having her breasts ‘ironed’ and when her grandmother approached Leina to do the same she threatened to tell the neighbours and her mother. Her grandmother gave up but apparently watched Leina in fear that something bad would happen to her because of her breast growth”, expresses Amy, who thinks that “it is not common to talk about breast ironing openly, although this is changing as more people share their experiences”. Leina is now a Cameroonian journalist and founder of Gender Danger – an organisation fighting breast ironing.

Statistics from the United Nations Population Fund suggest that approximately 3.8 million girls in Cameroon undergo breast ironing every year. Besides its obvious physical impact, breast ironing results into “long lasting psychological effects on girls”, believes Amy. This is because, “it can seem like a punishment for a girl’s natural physical development and breasts can be a source of personal shame”, she argues.

Besides guaranteeing basic fundamental rights in the Constitution, Cameroon is also a signatory to the Convention of the Rights of the Child. However, nothing concrete has yet been done to protect girls from the menace of breast ironing. “Laws may deter some from practising breast ironing...but...not key to its elimination” and, adds Amy, “Looking at the issue of FGM, many countries have laws against but they are often not enforced and the practice continues regardless”.

The situation in Cameroon is barely different from that of India. In Cameroon too, the blame is conveniently shifted to the victims for being dressed provocatively or going out at night alone. This can only be tackled through education and campaigning, says Amy, who thinks that “brining the issue out into the open, to all genders and age groups is key, as well as improving sex education and a genuine commitment to tackling violence against women and girls”.

May 19, 2013

Is Capital Punishment for Rapists Justified?

In this Guest Post, N.U.J.S. students Prateek Bhandari (5th year) & Waseem Shuaib Ahmed (4th year) discuss if capital punishment for rapists is justified. Views are personal.

The Indian criminal justice system, envisages death sentence to be imposed only in cases of murder and mutiny. This scheme of things is neither random nor accidental. The confinement of the death sentence to only specific crimes involving murder is rather deliberate. This is because death penalty differs from all other forms of criminal punishment, not in degree, but in kind. It is unparalleled in its total irrevocability and in its rejection of the rehabilitation of the convict as an essential object of criminal justice.

It is the uniqueness of the crime and the sentence that led our lawmakers to confine the death penalty to the crime of murder. And even for murder, our criminal jurisprudence has evolved the standard of ‘the rarest of rare cases’ when the court feels that reformation and rehabilitation of the convict is out of the question. In the Indian criminal justice system, life imprisonment is the rule and death penalty is an exception. Thus, any suggestion that the death penalty should also be introduced in cases of crimes against women is a radical suggestion that directly challenges the existing criminal jurisprudence of India. The onus is on those who argue for the death penalty in such cases to show that such crimes also bear the quality of irrevocableness which is specific to murder. 

The question of introducing the death penalty for heinous crimes against women has been raised in the context of the widespread disillusionment with the ability of the state to protect women from such crimes. This disillusionment became very apparent immediately after the gang rape in Delhi last December which led to widespread protests across the nation. Death penalty was suggested as an option because of the belief that the existing criminal law was too lenient on offenders and therefore the punishment had to be enhanced. However, the real problem is not with the quantum of punishment, but with shoddy police investigations, ineffectual prosecutions, judicial delays, etc.     

As the law stands, life imprisonment is the maximum punishment for rape which normally turns out to be a term of 14 years because of commutation of the sentence. If the death penalty were to be introduced, the Court’s options would then become limited to either a term of 14 years or the death penalty. Whereas the term of 14 years may seem inadequate, the death penalty too would seem excessive and disproportionate to the enormity of the crime. To balance the two extremities, a life imprisonment without the possibility of remission/ commutation is proposed, which will run for the entire duration of a convict’s natural life.

Death penalty for heinous crimes against women is also bound to prove counter-productive. In all cases where rape is committed, the perpetrator of the crime has already invited the death penalty upon himself and would, therefore, not be deterred from murdering the victim. Indeed, he would have a reason to murder the victim i.e. destroying the evidence of rape or other heinous crimes.

Death penalty for heinous crimes against women would be a regressive step in the sphere of sentencing and reformation since the global trend has been towards the restriction of the use of the death penalty and the diminution of the number of offences for which it may be imposed. Thus, apart from repeat offences of rape or rape which leads to murder or a permanently vegetative state of the victim, the requisite circumstances for the justification of such a radical and extreme change to our criminal law do not exist.

March 29, 2013

Watched Jolly LL.B? Grab a beer and get over the tripe!

We are pleased to bring to you a review of Jolly LLB by Somdutta Bhattacharya who is an Associate at Amarchand Mangaldas by profession, though his real interests lie in fiction, football and movies.

After a long day at work, a few colleagues of mine and I went down to catch ‘Jolly LLB’. The trailer for this Subhash Kapoor film had promised much. It seemed to be packed with hilarious dialogues and all the dramatic ingredients of one small town lawyer’s sudden rise to prominence in the chaos of legal practice in Delhi. So it seemed that we were all set for a fun, refreshing evening. Unfortunately, by the time it ended, mycolleagues and I were wondering what bars were still open at that late hour so that we could get the movie out of our heads with the help of a few drinks. I later found out that the movie has received mixed to positive reviews, and frankly, I am still wondering why. Maybe my taste in cinema is a bit too sophisticated. Maybe the general populace’s taste in cinema is a bit too unsophisticated. But most of all, maybe it is because I could not forget the fact that I myself am a lawyer while watching the movie.

Jagdish Tyagi a.k.a. ‘Jolly’ (Arshad Warsi) is a Bachelor in Laws from Law College, Meerut and is struggling to establish his practice at the district court in Meerut. He decides to shift base to Delhi and start practicing at the Sessions Court, Delhi and hopes for a change in luck. But before that, he woos his very pretty girlfriend Sandhya (Amrita Rao) through a song (don’t ask me what song, I don’t remember a single one) and dance right in the middle of the district court, with lawyers, and blimey, even the judges, joining in and matching their steps with the lovey dovey couple. Now, I go to the courts almost every day, we are taught to respect that institution and its judges from the very first day in law school, and to see lawyers dancing around in a court made me cringe. Literally.

Anyway, Jolly shifts to Delhi but there is no change in his luck (he even poses as a terrorist in court since the police had exaggerated the number of terrorists to the media!). But then hotshot lawyer Tejinder Rajpal (Boman Irani) comes down to the Sessions Court and defends his wealthy client successfully in a hit-and-run case where a few footpath dwellers had been killed (loosely based on the Saniv Nanda BMW hit and run incident in Delhi). But the media alleges a cover up in the investigation, and Jolly, who had been maintaining a file with newspaper cuttings on this case for some godforsaken reason, decides to take this up. So what does he do? He files a Public Interest Litigation! And it is accepted by the Sessions Court!

A PIL in a culpable homicide case is unheard of till now and one completely fails to understand Jolly’s locus standi in this matter, but what is more surprising and opens up new vistas in the legal history of India is the fact that a PIL is accepted by a Sessions Court. A PIL in India can only be heard by a court which has writ jurisdiction. Thus only the Supreme Court (under Article 32 of the Constitution) and the High Courts of the states (under Article 226 of the Constitution) can admit a PIL. But this is Bollywood, and Constitutional provisions operative in the rest of India cease to take effect when it comes to that magical land of the movies.

Anyway, the PIL is admitted, and Tejinder Rajpal devises a scheme, taking Jolly into confidence, whereby he extracts a lot of money from the client while Jolly agrees to lose the case and receive a cut of that money. But when Sandhya, who is now Jolly’s wife, comes to know this she leaves Jolly’s home. This spurs a change in Jolly, who returns the money to Tejinder and takes up the case again honestly. He tries to procure new evidence and does manage to procure some, after a lot of drama, including getting beaten up in the court washroom by Tejinder’s goons posing as lawyers and being held at gunpoint by the officer who had conducted the investigation. In the final hearing, both lawyers, including the extremely established Tejinder who has not lost a single case till now, deliver extremely emotional speeches without any valid point of law, which if actually delivered by an advocate in an actual courtroom would be stopped by any judge midway due to its complete lack of legal relevance.

If you thought Bollywood’s days of emotional courtroom speeches (remember Sunny Deol’s (in)famous ‘tarikh pe tarikh’ speech in Damini?) were over, well, think again. Anyhow, judge Sunderlal Tripathi (Saurabh Shukla) states that while everyone knows that Tejinder’s client is guilty, people like him always manage to escape by covering up evidence. But he refuses to let this happen again since it is the last case he is hearing before his retirement, and hence holds Tejinder’s client guilty, while considering it perfectly normal to not give any cogent reason for the conviction whatsoever. Hence a Sessions Court delivers a judgment based on criminal laws in a PIL! And through this royal mess, Jolly makes it big, becomes a cult hero among lawyers and the media and also becomes the first lawyer to defeat the mighty Tejinder Rajpal.

So that was it. It has a pretty shoddy storyline, not a single song worth remembering, very little humour and somehow even the dialogues that seemed funny in the trailer evoked no laughter whatsoever from the audience when they were actually delivered in the movie. The only saving grace is Saurabh Shukla’s depiction of judge Sunderlal Tripathi. One is better off watching the trailer, actually, rather than spend a lot of money to catch it at a multiplex. And as I said, I might have liked it a bit more had I not been a lawyer. But fortunately or unfortunately, I am, and so are my colleagues.

And as a lawyer, watching Jolly LLB will make you want to run for the nearest bar. So that you can forget the utter tripe you have just seen by having a few drinks.

March 20, 2013

A Get-Set-Go for Italian Marines’?

The Italian government and the Congress – led Indian government have one thing in common: they both promise but never fulfill. But the politics in Rome is not as upsetting as it is in New Delhi. It is only fair for the Italian government to raise preliminary objections on the jurisdiction of Indian Courts to try the two Italian marines’, charged with murder of fishermen Pintu and Jelastin, in an unfortunate killing that took place last month, off the coast of Kerela. And that the Italian government did what it could, under its bilateral relationships with India, should not come as a surprise. Of course, and if at all the matter is pursued through international dispute settlement mechanisms, counter objections to that effect could also be made from the Indian side.

Before that, let us look at the way these two marines’ were handled while they were in judicial custody in India. The marines’ were released on bail despite there being strong charges of murder; they were allowed to put up in fashionable hotels, and; finally their request to spend a joyful Christmas vacation with family in Italy was readily compromised by the government. In the meantime, Justice Altamas Kabir reprimanded the government for failing to commence a consultation process. But soon thereafter, the Supreme Court itself – based on the advice of the highest law officers in India – considered another request from the marines’ to exit from India, on the ground that they needed to cast their votes in the Italian elections. This request for casting vote was backed by the Italian embassy, approved by the government of India, and sanctioned by the Supreme Court. The marines’ left Indian soil, never to be seen again, and that was the end of the plot.

So, where are we now? The Congress government in the Center does not seem to own the blame, even worse, the Kerela government, also led by the Congress party, has not cared much about a quick and proper rehabilitation of the families of the fishermen, who were the only source of livelihood for their immediate survivors. From Italy’s side, things do not appear too optimistic either, especially after the coming into power of the new government. But the fact of the matter is that, as an independent sovereign nation, India could pursue its interests under international law – whether under the Sea Convention or otherwise – to call upon Italy to observe, and surrender to, the Indian judicial system. But the Congress is, of course, mindful of the fact that the marines’ are NATO members; Italy is one of the favorites in the European Union; and, there is a huge possibility that countries in the West could team up against India on this issue should occasions so arise in future.

The current impasse seems to suggest that Italy is above India and India’s highest courts. The non-confrontational attitude of the Italian government and the indifference of the Italian embassy in India are together indicative of the immaturity with which the ruling government has started, and gradually proceeded, on this sensitive issue. The government of India has a few more days to sit, do its homework, and craft a stern yet strategic response for Italy if the marines’ are not sent back to India by March 22. But certainly, diplomatic settlement between the two governments is at an appalling state already, and there is nothing that the Congress government could do to make it worse, and that includes expulsion of the embassy or instituting contempt proceedings against him for disobeying the Supreme Court’s order or both. 

March 18, 2013

(Mis)understanding the Impersonation Rape: Guest Post by Professor (Dr.) Askand Pandey

1. Introduction:
Rape is a heinous crime against a woman and rapists deserve severest punishment. At the same time, a criminal statute must be strictly construed and it should punish only those who are clearly and unambiguously hit by its words.[i] If the words of a statute are capable of only one meaning, the rule of literal interpretation would be applied and no deviation from this rule would be possible unless reading the statute as a whole, the context directs us to do so.[ii] It is more so, if the offence is grave and carries severe punishment. The offence of rape as defined in Section 375 of the Indian Penal Code, 1860[iii] (hereinafter the IPC), carries punishment up to life imprisonment and also stipulates mandatory minimum sentence in certain aggravating circumstances.[iv] Impersonation rape is defined in Clause fourthly of Section 375, IPC (hereinafter the clause) and the clause envisages a situation where sexual intercourse by a man with a woman amounts to rape if following conditions are present:
(a)    that the sexual intercourse with the woman has taken place with her consent
(b)   that the accused obtained the consent of such a woman, knowing that he is not the husband of the woman
(c)    that the woman gave her consent believing that she is the lawfully wedded wife of the man with whom she has consented to have sexual intercourse
(d)   that such a belief is mistaken and founded on the deceit played by the accused  impersonating her husband
In nutshell, the clause criminalizes sexual intercourse with a woman, where the accused has impersonated her husband. In a recent case Bhupinder Singh v. Union Territory ofChandigarh[v], (hereinafter Bhupinder), the Supreme Court of India had an occasion to interpret the clauseBhupinder is the only Supreme Court decision on the issue of impersonation rape and the author would argue that the Supreme Court misunderstood the elements of this offence resulting in grave injustice to the appellant and laying down the law incorrectly.

2. The Factual Matrix of Bhupinder:
The facts of the case are that the prosecutrix Manjit Kaur filed a complaint stating that she was employed as Clerk in All Bank Employees Urban Salary Earners Thrift Credit Society Ltd. and worked as such till September, 1991. The accused Bhupinder Singh was employed as Data Entry Operator in the State Bank of Patiala, Sector 17-C, Chandigarh. He used to come to her office and developed intimacy with her. The accused proposed to the prosecutrix, representing himself as single, to which she agreed and their marriage was solemnized soon after. She got pregnant sometime in 1991, but on the insistence of the accused got it terminated.  She again became pregnant in July 1993 and their relations remained cordial till March, 1994. On 6-3-1994 when she had gone to Rose Garden, she met Devinder Kumar Bansal and Vinod Sharma, who were friends of the appellant Bhupinder Singh. Those persons told her that accused Bhupinder Singh was already married with one Gurinder Kaur and was having children from the said wedlock. She asked them as to why they had not told her about the previous marriage of her husband. But they avoided answering. She went to the accused, who had, on the pretext of going for some work, gone to his wife Gurinder Kaur. She had a fight with both Bhupinder Singh and Gurinder Kaur there and tried to inform police about the same but was prevented by her relatives from doing so. On 16-4-1994, she was admitted in General Hospital and gave birth to a female child. She informed Bhupinder Singh about this as he was the father of the child. But Bhupinder Singh did not turn up. On her complaint, a case was registered for the offence punishable under Sections 420/376/498-A, IPC[vi]. In his statement under Section 313 of the Code of Criminal Procedure, 1973, the appellant took the stand that he started knowing the complainant after his marriage with Gurinder Kaur. The complainant was known to his wife before her marriage with him and she had come along with her mother to their place in 1988 in Sector 23, Chandigarh where her mother requested him to get her a job as she had finished studies and wanted to get a job. The complainant stayed in their house for six months. Thereafter, he arranged a job for her. However, she had shifted and being of loose morals, entertained many people. When he learnt that she was of loose morals and was going out with different persons at odd hours, he objected and told the complainant to mend her ways. But she started fighting with him and demanded money which he does not pay and, after delivery of the child, she filed a false complaint. Gurinder Kaur stated that she knew the complainant prior to her marriage. Documents were also produced to show that in official documents, accused-appellant had shown the complainant as his wife and nominee. Upon trial, in a judgment dated 20-9-1999 passed by learned Additional Sessions Judge, Chandigarh, the accused was convicted for offences punishable under Sections 376 and 417 of IPC[vii]. He was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- with default stipulations for the first offence and rigorous imprisonment for nine months in respect of the second offence. An appeal against the aforementioned order of conviction was filed by the accused-appellant in the Punjab & Haryana High Court. The High Court found that the case at hand was covered by the clause, therefore, the accused was guilty of the offence and was liable for punishment under Section 376, IPC. Accordingly, the conviction, as done, was upheld. But, taking into account the fact that the complainant had knowledge about his marriage and had yet surrendered to him for sexual intercourse; held this to be a fit case for reduction of sentence and award of adequate compensation.[viii] Accordingly, custodial sentence of three years rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs.1,00,000/- which was directed to be paid within three months. It was indicated that in case the compensation amount was not paid, the reduction in sentence would not be given effect to.[ix] The High Court took this view of the offence in spite of the arguments advanced by the counsel for the appellant that when the complainant knew that he was a married man and yet consented for sexual intercourse with him, the clause would have no application. It was also submitted that the fact that the complainant knew about his being a married man, is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused.[x]

3. Decision of the Supreme Court in Bhupinder:
The accused preferred an appeal to the Supreme Court by way of Special Leave. The Supreme Court, speaking through Justice Arijit Pasayat, observed that:[xi]

“Though it is urged with some amount of vehemence that when complainant knew that he was a married man, Clause "Fourthly" of Section 375, IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab initio. In any event, the accused-appellant could not have lawfully married the complainant. A bare reading of Clause "Fourthly" of Section 375, IPC makes this position clear”. [Emphasis supplied]

It was held by the Supreme Court that the High Court had reduced the sentence taking into account the peculiar facts of the case, more particularly, the knowledge of the complainant about the accused being a married man. The Supreme Court found this knowledge, to be sufficient and adequate reason for reduction of the sentence and awarding of compensation to the victim and dismissed the appeal.

4. Understanding the Clause in Perspective:
As mentioned earlier, “impersonation rape” would be constituted only where the accused has impersonated the husband of the prosecutrix and has had sexual intercourse with her. On the other hand, where the accused, being married, lies to the prosecutrix about his marital status, making her believe that he is single, thereby inducing her to have sexual intercourse with him on a promise of marriage, it is not rape. It may be cheating. Also, where the accused, by deceit, induced a false belief in the mind of the prosecutrix that she is lawfully wedded to him, and thereby has cohabitation or sexual intercourse with her, the case would be covered under Section 493, IPC.[xii] This offence is non-cognizable[xiii], non-bailable[xiv], non-compoundable[xv] where as rape is a cognizable, non-bailable and non-compoundable offence. Section 192 of the Code of Criminal Procedure, 1973, stipulate that only the aggrieved party can take recourse to criminal sanction for the offence under Section 493, IPC. Apart from the procedural distinctions, these provisions are fundamentally different in their elements as well. However, the Indian courts appear to be confused about the scope of these two sections. This confusion is inexplicable considering the fact that the framers of IPC had put both the provisions in different chapters dealing with two different subjects. Section 493, is in Chapter XX of the IPC titled “offences against marriage”.  The object of Chapter XX of the IPC, as a whole, appears to be protection of the sanctity and integrity of the institution of marriage, where as object of Chapter XVI of which rape is a part, is protection of bodily integrity of a person. Section 493, IPC, only punishes a man for obtaining the body of a woman by a deceitful assurance that he is her husband. To prove deception, it must be conclusively established that the accused had dishonestly or fraudulently concealed certain facts or made a false statement knowing it to be false.[xvi] The fundamental difference between Section 493, IPC and the clause is that impersonation is not an essential element of the former whereas without impersonation as the husband of the prosecutrix, the offence under the latter would not be made out. Is it possible that an accused be guilty under both the provisions on the basis of same set of facts? Yes, says a Division Bench of Calcutta High Court in KartickKundu v. State of West Bengal[xvii], holding that;

“when the girl is below 16 years of age and any man has sexual intercourse with her the offence of rape under S. 375 (5) is committed. Where the consent is obtained fraudulently making-her believe that she has been lawfully wedded then the offence falls under S. 375 (4) and S.493. The "deceit" contemplated under S. 493 can be practised upon a woman who is above 16 years of age and also who is below 16 years of age. The Penal Code does not distinguish between a minor and a major woman. It will be an unwarrantable encroachment upon the section to introduce a limitation on the ground of minority and to bold that a minor is excepted in S. 493, Penal Code”.[xviii] [Emphasis supplied].

It must be noted that all cases covered under Section 493, IPC would not be covered under the clause, as the latter requires an additional element of impersonation. If there is deceit contemplated under Section 493, IPC coupled with impersonation, the case would fall in both, the clause and Section 493, IPC, otherwise not. In Sunil Vishnu Salve v. State of Maharashtra[xix], it has been held that the clause applies when a man induces a married woman to have sexual intercourse with him by impersonating her husband. When consent by a woman to a man is given under misconception of fact that he was her husband, it amounts to rape by a person to whom the woman believes to be her husband”.[Emphasis supplied]

5. Supreme Court’s Misinterpretation of the Clause:
It is submitted that the Supreme Court judgment in Bhupinder suffers from fundamental legal infirmities and does not correctly interpret the law under the clause. The first fundamental error, which the Supreme Court committed in Bhupinder is, that it confused “mitigating circumstances” with “exonerating circumstances”. The former merely mitigate the culpability while making the accused criminally liable for the offence, with a lesser punishment. Section 376, IPC allows the courts to award punishment lesser than the statutory minimum punishment prescribed for rape, if sufficient and adequate reasons for doing so exist. However, this does not mean that where the facts do not disclose commission of a particular offence; in the name of judicial discretion, the same could be brought under it. Doing so would be against the established canons of interpretation of penal statutes.[xx] On the other hand the “exonerating circumstances” would be those which take the case away from the definition of the offence, or in other words, where, the facts do not disclose commission of a particular offence, which the accused has been charged with. It is not uncommon in such circumstances for the courts to convict the accused with some other offence, subject to the condition that the same is not prejudicial to the accused.[xxi]
Secondly, the Supreme Court did not refer to any authority or case law on the subject in arriving at the conclusion of guilt. And last but not the least, the Supreme Court failed to read the clause as a whole and selectively omitted the words “because she believes that he is another man”. A mistaken belief in the validity of marriage and the same about the identity of the accused would mean different things and lead to different criminal liability under different provisions of the IPC. The Supreme Court read the clause to apply to a situation where the sexual intercourse has taken place with her consent, when the man knows that he is not her husband, and that her consent is given because she believes herself to be law­fully married, and thereby enlarged its grasp. In Bhupinder, if at all, the facts disclose commission of an offence under Section 493, IPC. Ends of justice would have been met, had the accused-appellant been held guilty under Section 493, IPC, with the same punishment. Identifying the appropriate offence and awarding corresponding punishment is fundamental to criminal justice dispensation.

6. Conclusion and Suggestions:
It seems that the Supreme Court misconstrued the clause as it does not specifically mention “impersonation” as an element of the offence. In England, the Sexual Offences Act, 1956, had a similar provision in clearer terms.[xxii] It is suggested that the Indian Parliament should amend the clause to obviate its further misinterpretation. It is unfortunate to see that someone who is not guilty under the clause is declared so. The decisions of the Supreme Court not only resolve issues between the parties to the case, but also lay down binding law for the future cases having same or similar facts. Any misapplication or misinterpretation of a penal provision shall have serious repercussions for the right to life and personal liberty of an individual. Apparently, a reason for applying the clause in Bhupinder appears to be the fact that Section 493, IPC was not brought to the notice of the Supreme Court. In Director of Settlements A.P. v M.R. Apparao,[xxiii] it has been held that the law declared by the Supreme Court cannot be availed on the ground that certain aspects were not considered or relevant provisions were not brought to the notice of the Court. Going by this, Bhupinder can not constitute a precedent for similar cases. It is hoped that in future the Supreme Court would correctly interpret the clause in deciding a case similar to Bhupinder, setting the controversy at rest, once and for all.

Acknowledgment : This article first appeared in Criminal Law Journal (November Issue).

[i] A.G. v. Sillem, (1864) 33 LJ Ex 92.
[ii] A.G. v. Milne, 1914 AC 765.
[iii] S. 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—
 First.— Against her will.
 Secondly.—Without her consent.
 Thirdly.— 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.
 Fourthly.—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.
 Fifthly.— 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.
 Sixthly.— With or without her consent, when she is under sixteen years of age.
 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.

[iv] S. 376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: 
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever: -
(a) Being a police officer commits rape-
(i) Within the limits of the police station to which he is appointed; or
(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or
(b) Being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or 
(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
 (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
 (e) Commits rape on a woman knowing her to be pregnant; or
 (f) Commits rape when she is under twelve years of age; or
 (g) Commits gang rape, 
Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1
Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2
"Women's or children's institution "means an institution, whether called an orphanage or home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation: 3
"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception
and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

[v] 2008 Cri L J 3546.
[vi] Section 420, IPC prescribes punishment for cheating whereas section 498-A, IPC punishes cruelty against a married woman by her husband and his relatives.
[vii] Section 417, IPC punishes cheating.
[viii] Bhupinder, supra note 5 at para 7.
[ix] Ibid.
[x] Id. at para 8.
[xi] Id at para 11.
[xii] S.493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage: 
Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[xiii] See, the First Schedule of the Code of Criminal Procedure, 1973.
[xiv] Ibid.
[xv] Sections 320-321, Id.
[xvi] See, Gaur K.D., A Textbook on Indian Penal Code, (Delhi: Universal Law Pub. Co., 3rd ed. 2004), p. 720.
[xvii] 1967 Cr L J 1411 (Cal.). 
[xviii] Ibid. at paras 16, 17.
[xix] 2006 Cr L J 587 (Bom.)
[xx] Shanti Prasad Jain v. Director of Enforcement, AIR 1962 SC 1764.
[xxi] See, Maran Chandra Paul v. State of Tripura, 1997 Cr L J 715 (Gau.), para 7.
[xxii] S. 1 (3) provided that “A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband”.  The Sexual Offences Act, 2003 is also clear about this aspect of the offence of impersonation rape.
[xxiii] AIR 2002 SC 1998.