December 16, 2009

What is Life Imprisonment? 14 years or 20 years or life?

There is always a wrong impression that life imprisonment in India is not imprisonment for natural life but for 14 years and in some cases, 20 years. Neither. Life is “life” in life imprisonment. Punishment acts as deterrence and prevents crime from being repeated. One of the forms of punishment that is imposed upon the offender for the loss or injury caused by his act or omission is Imprisonment. Imprisonment may be for three months, six months, one year, two year and so on…There is no problem in computing the sentence when it is expressly mentioned in the sections of IPC or other substantive laws. However, when an offence is punishable with life imprisonment, for e.g. murder, it becomes an unsolved mystique for sorts. 


Myth 1: Section 433A of the Code of Criminal Procedure states that if an offence is committed and the punishment for which is either death or life imprisonment and the person is awarded life imprisonment, some restriction is to be imposed on remission and computation. The Government cannot leave the person so sentenced unless he has served 14 years in jail.

Myth 2: In every case, where the offender is punishable for attempt to commit an offence, the punishment that has to be provided is usually the half of the actual punishment. For e.g., punishment for criminal breach of trust is three years and attempt to commit criminal breach of trust is 1.5 years. However, even the legislature does not have the capacity to define “life”. Simply put, who knows what is the half of “life imprisonment” when “life imprisonment” itself is unknown. There, law provides that in an offence punishable with life imprisonment, where one has to quantum life or fraction of life, ‘life’ means 20 years.

Therefore, Life imprisonment is considered to be the imprisonment of an offender for the rest of his life in jail or he should take his last breath inside the cells. If an offender is punishable for more than one offence, and the Court in its judgment fails to mention how the punishment should run, it should run one after the other. [So, if two offences are committed, both being punishable with three years imprisonment, the sentence shall run 3+3. However, this principle is not applicable in cases of life imprisonment since it is not possible to imprison a person after death and law compels no impossibility i.e. impotentia excusat legem]. Normally, punishments run concurrently. Also, usually every offender is released within 14 years and is not imprisoned for life unless circumstances exist to keep him behind bars!

December 15, 2009

Homosexuality in Indian law; section 377

The hullabaloo over homosexuality under Indian laws is as old as the hills. Laws on homosexuality, which have been virtually put a ceiling on or put an end to in most nations, continue to impose hardnosed punishment under section 377 of the Indian Penal Code. There is a half-baked speculation in the minds of the larger section of society that homosexuals are a petrifying breed of humanity as a class.  There have been a lot on the Naz Foundation Case, including scholarly articles in journals and newspapers. In this post, I write, what I think of homosexuality, not from a constitutional perspective, but from a layman’s understanding as to why it should be condemned. This is less legal, more philosophical.

The Moot Point: Natural or Unnatural ?

The idiosyncratic accusation that the unwarranted treatment given to homosexuals is moderately vindicated to the extent that practicing homosexuality is decadent and the most despicable transgression conceivable against the laws of nature. However, a narrow comprehension of jurisprudence would make it crystal clear that morality is always normative. Laws of nature merely say what we can or cannot do and not what we ought or ought not to do. Do we not frequently get dismayed or do we not often express moral condemnation of things which are flawlessly natural? 

Abortion, lesbianism, fellatio, cunnilingus and the like have provoked frenzied public debate and spell the lack of consensus in our society but still are deemed natural and non-criminal. I bridle in surreptitious sympathetic embarrassment when it appears, that it is not the civic fortitude that underpins ethical denunciation of homosexuality but rather society’s aversion to homosexuality that is being furtively exercised to construe what the civic fortitude ought to be. 

A basic understanding of the philosophy of law would reveal that ‘unnatural’ is something which is ‘artefice’ as distinct from ‘artefact’. If we adhere to this understanding of natural law it would be doing no violence to our tongue if we go to the extent of condemning all sorts of breakthroughs that man makes, at times even as a demolisher of nature, to overprotect the interests and requirements of the society. What is more disconcerting, overtly prejudicial and rabble-rousing speech than to broadcast homosexuality as unnatural and abnormal since it does not advance procreation? Either their grasp of the concepts of natural law is deficient or they are trying to deceive and degrade natural law. 
Is procreation the only aspiration which is to be accomplished by engaging in a sexual activity? Perceptibly not, or else one would on no account visit brothels for the collective raison d'ĂȘtre behind it is to exhaust one’s sexual yearning rather to make babies. Thomas Aquinas, the great natural law thinker says that nature makes something keeping some end in view and that nature will make nothing which is devoid of any purpose. Thus homosexuality is condemned since it seemingly abuses the primary purpose of genitals; i.e. procreation. For the above stated reasons, this falls flat since people engaging in homosexuality use their genitals, obviously not for the only function that we understand of genitals, but for experience or ecstasy. 

It is normal that a person is unshackled to exercise his right of personal preference and carry out any act which is based on reciprocated consent and which is distant from inauspicious upshots. Homosexuality is neither a mental illness, any sort of moral depravity nor it is a profession which a man or a woman opts for at some point of time. Sexual orientation is something ‘out there’ over which no soul has any ascendancy. Whether the civilization accepts it or not, sexual favoritism does not fiddle with ethical or communal rules across the world, it continues to be as steady as it was. 

Homosexuality is biological and people are born homosexuals not as a matter of choice. Why do not then the challengers of homosexuality authenticate their arguments by altering their sexual orientation overnight? Little or no credence can be prearranged to contentions of some theorists who discern homosexuality as something which can be standardized effortlessly by an act or legislation or by some unsystematic dissertation on what is admirable or horrendous or by indoctrinating which behaviour is deemed felonious and which creditable. Not all that a person presents is subject to any moral coercion and hence to assert that his deeds are to be reckoned laudable or culpable with respect to what the society stipulates is a judiciously unrepresentative supposition.


It is a mockery of human rights and a disgrace in the name of democracy when private and consensual homosexual behaviour on the part of adults are considered a criminal offence. Whatever exists on earth is in itself natural. There is nothing ‘unnatural’ about anything. Having arrived at this conclusion, it is surrendered that if section 377 is to be construed in accordance with the Constitutional directives it is compulsory for the state to unearth any provision of law ultra vires which palpably disallows the horizontal passage of any law that purportedly uphold fundamental rights of individuals. Liberalization of our penal laws will surely discontinue the unlawful attacks on the honour and reputation of homosexuals and will put an end to the harassment and give homosexuals the dignity, privity and freedom of choice that they have been denied for so long and ensure the cutback of the social stigma appended to homosexuality in India.

December 13, 2009

Powers of the police and role in India

The Police in India derive its powers and privileges from the Police Act of 1861. This post relates to the functioning of the Police in India after FIR has been registered by the victim. Before that, it is important to note that the officer-in-charge of a police station has to maintain Diaries- General Diary or the Police Diary and Case Diary. The former relates to any information which does not disclose commission of an offence e.g. lost of articles or other valuables, while the latter is important in that it relates to a particular case of which either investigation is continuing or has been closed and a Final Report has been filed with the Magistrate stating commission of an offence by a person, known or unknown.

Coming back to topic, the Police must at first visit the place of occurrence of crime. This is the first step and a part of the investigation process. The underlying purpose is to collect as many evidence possible which will corroborate the prosecution version and go against the person committing the crime. Inordinate delay in reporting to the place of occurrence may cause tampering of evidence, leaving no traces of crime. That apart, while investigating a crime, the Police have wide powers to search and seize articles or other material things related to the offence. However, while recovering such materials Police must take a written statement of two respectable witnesses before whom such things were so seized. In case of any derogation by the Police, the value of seizure may decrease in the eyes of Court and can also be used by the defense lawyer for the purposes of contradiction. However, illegal search or seizure does not make the evidence inadmissible in a court of law.

Certainly, after receiving credible information about person involved in the offence, there exists a reasonable suspicion in the mind of Police, or if it has a sufficient reason to arrest such person, may arrest him after recording the reasons for such arrest [vide the 2008 CrPC Amendment Bill, Bill No. LXXX-C of 2006]. Otherwise, Police shall only give a notice of appearance to such person to appear before him in the manner specified. In the former case, the Police are obliged to produce the arrested person before the Magistrate within 24 of his arrest. During arrest of a person, the police officer shall not even touch such person if he is willing to cooperate by words or action. However, all necessary means can be used in case of any resistance to effect the arrest (vide section 46(2), CrPC). This, though, does not give the power to cause death of a person.

Usually, after arrest, such person is usually tortured in police custody despite the Supreme Court guidelines and human rights mandates. The third-degree torture which is the most heartrending causes the person so subjected, to confess his crime before the officer and as a logical corollary, disclose the way of the commission. It is a general rule that confession made to a police officer at a time when the Magistrate is not present, is invalid and cannot be used against the person making it. However, if the confession results into discovery of material objects relating to the offence, it shall be legal for the Police to produce them before the Court and such evidence shall be admissible in a court of law (vide section 27, Indian Evidence Act). Example: Mr. X commits murder of Y and tries to hide his body near the riverside. Here, Mr. X shall be liable under section 302 and 201 of the Indian Penal Code. Now, if he confesses his crime and directs the Police to the place where he threw the victim, anything which is discovered from the site can be used as against him.

An important stage of investigation is recording of 161 Statement of the witnesses who are acquainted with or have reasonable information in respect of commission of an offence. Such statements have to be recorded in writing. These statements can be used in a court of law by summoning the witnesses and can also be used for purpose of contradiction by the defense lawyer. The statement of an accused, if recorded before a Magistrate shall be the sole basis of his conviction if he confesses involvement or participation in the commission of the offence. Courts have wide powers to summon witnesses and persons who have recorded their 161 Statement with the Police must present themselves before the Court on request. [Sample Copy of a 161 Statement is upcoming].

Sending the dead body for post-mortem and conducting a Test Identification Parade (TI Parade) are also relevant. The former has little or no legal consequences. The latter must be conducted in front of a Magistrate and the witnesses must be asked to identify the suspect from among the persons who are of the same height, standing in a row. This exercise is for corroboration and is of little evidentiary value because in most of the cases, the Parade is conducted without having regard to the laws enshrined for the purpose. There have been cases where witnesses were shown the photographs of the accused before the TI Parade which defeats the purpose of it.

December 10, 2009

How to register an FIR or make a complaint

Criminal law is set into motion, the moment we register a First Information Report (FIR) with the officer-in charge of a police station relating to the commission of a cognizable offence.  [Offence is any act or omission made punishable by any law for the time being in force. The phrase “for the time being in force” is included because criminal law is always prospective.] Any person may register an FIR in any local police station in any of the States in India irrespective of whether it has the jurisdiction or not.

The officer-in-charge of that police station is authorized to refer the matter to the appropriate police station after determining the place of occurrence (However, this rule has an exception in cases of bigamy which restricts the registering of FIR to a specific class of people in order to resist unwarranted complaints). An officer-in-charge of a police station empowered to register FIR includes any person who is next to the rank of such officer or who is not below the rank of a constable (vide section 2(o), CrPC).

Many a times, it so happens that the police, refuse to register FIR due to self interest (personal grudge against the victim), superior interest (pressure from officers of higher rank), or a socio-political interest (pressure from the political parties) [popularly known as the 3’S’]. In such cases, the law provides that the aggrieved person has the liberty under law to send the substance of information in writing to the Superintendent of Police, who shall direct the officer-in-charge to investigate the case (vide section 154(3), CrPC).

The reason for this is that any police officer who is superior in rank to the officer-in-charge is deemed to have been vested with the same powers which are exercised by such officer under the Code. As has already been mentioned earlier, sometimes even the senior officers may prove to be biased in favour of either party. In that case, the law provides that the aggrieved person then may proceed to a Magistrate and lodge a complaint which is a formal allegation, either oral or written, about a person who may be known or unknown to the victim.

The Magistrate, then, is empowered to direct an investigation of the case (vide section 156(3). However, it is important to note that under the Indian penal laws, the Magistrate is not empowered to conduct an investigation himself under any circumstances. The reason for this is the doctrine of separation of powers which means that the judiciary shall not transgress upon the functional areas of the executive, investigation of an offence being one of those areas.