February 16, 2010

International Criminal Law Review: Call for Papers

The International Criminal Law Review calls for papers on “Women & Law; International Criminal Law”, on a special 2010 issue dedicated to Judge Patricia M. Wald.

The papers should be sent electronically as an attachment in Ms-Word format by 15th April, 2010. The paper should be between 5,000-10,000 words.

For further details, see this post.

February 11, 2010

Sexual Harassment at Workplace Bill likely to become a Law in 2010

The offences against women in general and sexual harassment at work place in particular are on rise. In 1928, Pandit Nehru commented, “One could judge the degree of civilization of a country by the social and political position of women. The India that is built will be judged by the position of women”.[See, S. Gopal, SELECTED WORKS OF JAWAHARLAL NEHRU (1982:361). Women are the soft targets of criminals. 2007 Report of National Crime record Bureau gives alarming statistics that 10950 cases of Sexual Harassment were reported, out of that 0.6 % are to total IPC crimes, Rate of crime is 1.0, 97.3 cases were charge sheeted and rate of conviction in these cases are 49.9, so one can imagine the situation is so alarming if not controlled it would go on increasing.

Prior to the Vishaka (1997) judgment, IPC dealt with these cases under Sections 354 and 509, where the punishment may extend to two years with fine or both and secondly with simple imprisonment for a term of one year with fine or both. Both these provisions of punishments are inadequate. The guidelines laid down in Vishaka by Justics Verma, “Each such incidents of sexual harassment result in violation of fundamental rights of Gender Equality and Right to life and Liberty. It is clear violation of rights under the Constitution of India, under Article 14, 15 and 21.

One of the logical consequences of such an incident is also the violation of victim’s fundamental right under Article 19(1)(g), ‘to practice any profession or to carry out any occupation, trade or business’. Such violations, therefore, attract the responsibility for ensuring such safety and dignity through suitable legislation and creation of a mechanism for enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before judiciary for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.” SC also laid down along with the definition some preventive measures mandatory of expedient for employers in work places including other responsible persons and or the institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:

1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the. standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

10. Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, the Supreme Court of India directed that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.

The judgment above was put to test for about ten years, and probably the Parliament is convinced with the need of such a legislation has piloted the Sexual Harassment Bill, 2007 to prevent the incidents and to tackle the menace.

Section 2 (m) of the Bill, defines “Sexual Harassment” as such unwelcome sexually determined behavior such as physical contact, advances, sexually coloured remarks, showing pornography or making sexual demands, whether verbal, textual, graphic or electronic or by any other actions, which may contain -.

(i) Implied or overt promise of preferential treatment in that employee’s employment or
(ii) An implied or overt threat of detrimental treatment in that employee’ employment or an implied or overt threat about the present or future employment status of that employee and includes the creation of a hostile Working environment.
(iii) The conduct interferes with an employee's work or creates an intimidating, hostile or offensive work environment or
(iv) Such conduct can be humiliating and may constitute a health and safety problem

Explanation 1: Hostile Environment: A work environment is “hostile” when unwelcome verbal, non-verbal or physical behaviour focusing on sexuality is severe and pervasive enough to interfere with the victim’s work performance or be intimidating or offensive to a reasonable person.

Explanation 2 : It is clarified that it is the reasonable perception of the woman that would be relevant in determining whether any conduct was sexually coloured and, if so, whether such conduct was unwelcome or not and that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.

The 2007 Bill has been revised and set for to be introduced in 2010 budget session of the parliament. It is a progressive step taken by the Government and hopefully the bill in on the way to become law of the land. The committee has done recommendable work; some of the important changes which are made to old bill are as given below:

1. The major victims of sexual harassment are service beneficiaries (who are not employees) such as students in educational institutions, patients in hospitals, customers in banks, etc. The revised Bill included students and other service beneficiaries in a peripheral manner. There is widespread sexual harassment indulged in by professionals such as doctors, lawyers and others. This may not be at any workplace but at any place where an intra professional or inter professional relationship exists. The Committee has tried to widen the ambit of the definition of ‘aggrieved women’ by including students, research scholars, patient and women in unorganized sectors is also a welcoming step.

2. The new bill includes women covered under the “employer-employee relationship”.

3. Penalty provision added de-registration of the institutions, which fail to constitute internal complaints committee. Along with the committee proposed law provides for mandatory district level local complain committee to investigate sexual harassment complaints, especially registered by women working in unorganized sector such as domestic help. Aggrieved is free to chose either of the committee.

4. Important power recommended for the committee is to provide compensation to victim from the income of he accused.

5. Action to be taken against false case remains the same.

February 9, 2010

Supreme Court in Mulla on death penalty

In a recent decision in Mulla, the Supreme Court has once again looked into the legitimacy of sending offenders to
gallows by investigating on whether the death sentence awarded by the trial judge and affirmed by the HC is justifiable and acceptable in the facts and circumstances where the story of the prosecution was proved beyond all reasonable doubt in respect of offences under sections 148, 364A, 365 and 302 of the Indian Penal Code. Surprisingly the Court did not cite its recent pronouncement on Santosh Beriyar on the death penalty issue, but rather reiterated what has been said in 1980 in oft-quoted Bachhan Singh that “life imprisonment is the rule and death sentence is an exception”. In Mulla, the court establishes a benchmark for sentencing an offender to death penalty which is worth noting here. Needless to say, death penalty has now been technically done away with given the application of the following set of reasons while invoking the death-penalty powers.

33. Manner of Commission of Murder
When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

34. Motive for commission of murder
When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

35. Anti-social or socially abhorrent nature of the crime
(a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of "bride burning" and what are known as "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

36. Magnitude of crime
When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

37. Personality of victim of murderWhen the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

February 1, 2010

Expert opinion in India; section 45

Judges know not all and therefore require expert opinion to reach conclusions in complex cases. There are complexities in a case under trial that demand something more than legal reasoning and argumentation. This is ‘opinion’ of experts who would guide the judge to arrive at a fair conclusion in respect of a case at hand. Definition of an ‘expert’ is not exhaustive and normally includes any person having the requisite skill, knowledge and experience to understand the modalities of a case and present her opinion before the Court for proper consideration. Now when we say ‘opinion evidence’, the Court calls for opinion on any matter falling under the exclusive domain of foreign law, art and science.

The expression “any person” and “experience” necessarily rejects of idea of any kind of qualification or degree and implies that to be eligible to give opinion before the Court, a person must be working for some period of time on the issues in order to enable her to make observations. [Example:- In cases involving chemical examination, the opinion of a police officer who is in the Chemical Examination Department for a longer period is more relevant than any person who though having a degree has no experience of work in the said department] What is relevant is expertise and not educational qualifications. Unlike eye witnesses who depose what they see, experts make observations on a given case on the basis of their experience and skill.

After ensuring that a person has the expertise the next point to consider is whether she has clarity in her understanding. By clarity we mean in depth knowledge of the matters and principles on which conclusion is drawn and the ability to present it before the Court. Use of general terms may be an example of lack of clarity in understanding.

Any fact which corroborates or is inconsistent with the opinion is relevant. The grounds on which opinion is based are also relevant. Expert evidence is a very weak piece of evidence and cannot result into conviction. [Because experts may seem to bias (personal or pecuniary) in favour of a party who calls them]

In case of a clash between expert evidence and other direct/circumstantial evidence, the latter shall ordinarily prevail. Expert evidence can only be used as a corroborative piece of evidence and is not substantive in nature. However, in some cases expert evidence resulted in conviction where it inspired more confidence in judges’ minds.

This section is very wide and all attempts to include a specific category of persons as experts have turned futile. Suggestions came both from the Law Commission and the Malimath Committee. While opinions of experts may be called for various reasons, this section is mostly used for the comparison of handwriting by calling upon an expert to match the writing produced before the court with the one alleged to have been written.

Note: - Section 45 must have to be read with section 293 CrPC which states that a subordinate staff under the authority of an expert is also authorized to depose.