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, Cรดte 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. 

March 15, 2013

All Women Bank in India

The 2013-14 Budget, as introduced by the Finance Minister, has gone beyond aspects of inclusive growth and sustainable development; it has reinforced the need for women empowerment – especially among the non-elite, middle-class working women in India. The Budget is as generous as it is unsurprising – generous because it earmarked government funds for the upliftment of women and unsurprising because women empowerment was an issue too dear for the government to ignore in light of the upcoming general elections in 2014, especially after the recent nationwide protests against the failure of the State in safeguarding the interests of women. With whatever objectives in mind, the historic decision of introducing Women Banks – first of its kind in India – in the public sector in particular and several other financial commitments to women in general is indeed commendable. But the devil lies in the detail.

Take for instance the proposed establishment of public sector banks specifically for women to cater to their entrepreneurial ambitions. The intention of the government behind this is undoubtedly bona fide but neither are gendered banks the need of the hour in India nor do they have the potential to address the multifaceted concerns of women for which they are proposed in the first place. The Budget is not only selective in its allocation of funds to women with entrepreneurial spirits but at the same time is also extremely vague in not defining the underlying objectives of the allocation; it is unclear as to whether the proposed banks would offer the benefits of their services at subsidized rates without any cap on the loans to be borrowed, or provide higher interest rates for fixed and saving account deposits, or even offer loans without any collateral securities.

But had this been the intention of the government, explicit words to that extent would have occurred either in the Budget or in the speech. As such, it is highly likely that the proposed banks will only provide general, but not special, banking services directed exclusively at women. Alternatively, the Finance Minister could instead have proposed for a few women-specific constructive changes in the existing public sector banks itself. The funds could have been put aside for offering interest-free loans to women or for extending loans to sponsor specific business related projects at discounted rates. The government could have equally considered offering of higher interest rates to banks for their savings and fixed deposits or the funding of banks so that they could provide educational loans to female students without any collateral securities.

The objective of women empowerment – as is patently noticeable from the speech of the Finance Minister – could rather be achieved by overcoming the shortcomings in the existing public sector banks which are constantly criticized for their failure in reaching out to the masses – especially those without a convincing background and influence – in need of exigent banking services. The same goes equally for the post office savings banks which, although successful in addressing the financial challenges in the rural areas, have lacked the capacity to provide full-fledged banking services in India. Now if this were the fate of certain existent banks, the services of the proposed banks will take decades to deliver banking services effectively to cater to the entrepreneurial needs of every woman.

The Finance Minister also proposed to contribute Rs. 1000 crores for the setting up of a ‘Nirbhaya’ Fund and promised to deal out Rs. 200 crores to the Ministry of Women and Child Development with the objective of ensuring a life with dignity and safety for Indian women. But the existence of the step – howsoever progressive and appreciative – on paper is one thing whereas its implementation by the government is quite another. In fact, instead of trying to allocate funds randomly in the name of women welfare, the money ought to have been channelized in a manner in which the immediate challenges faced by women in India could have been sufficiently addressed – importantly those relating to safety of women against crime and violence. This, together with the increase in the duty-free import of gold up to Rs. 100000 crores, come as classic examples in evincing a serious disconnect between the responses of the government and the present demands of Indian women.

A better approach, perhaps, to ensure safety of women would instead be to have a budget that is primarily focused on specific projects; the anxieties of women can only be overcome with realistic goals in mind and time-bound solutions in place. The government could have proposed, for example, for the establishment of all-women police stations or something even more specific like the installation of closed circuit cameras in every district or investing strategically in certain infrastructural projects. But the larger question that remains is why is it that the government has failed to contribute to women development cutting across women identities? In other words, why did the government not seem keen on establishing funds for granting scholarships to girls for higher education or in creating women-specific fast track courts or increasing existing funds specially designed for the rehabilitation of women or reducing tax rates and caps on women for the purposes of income tax law.

Not that the ideas behind the 2013-14 Budget are outright perverse but a lot more could have been achieved by strategically investing money in infrastructure and guaranteeing higher education rather than by promising cosmetic financial support which none had called for.

February 8, 2013

Criminal Law Ordinance an end-all?

After decades of instances of sexual violence directed towards women in India, Pranab Mukherjee – unlike many Presidents before him – is satisfied that necessary circumstances exist which call for an immediate action to respond to the rising instances of women subjugation and violence.

The Ordinance of February 3 promulgated by the President reflects a failure of the state; it is a telling story of how political leadership has pointedly disregarded – if not vilified – the bleak status of women in a patriarchal system of power. But while the President must be applauded for his bold but familiar assertion of the necessity to react to women cruelty, to think that the Ordinance is a panacea for all kinds of sexual crimes is at best wishful.

Let us first consider the definitional transition from rape to sexual assault. The Ordinance substitutes the word ‘man’ and ‘rape’ with ‘person’ and ‘sexual assault’ respectively and does away with the requirement of penile penetration; insertion of objects into any bodily orifice constitutes one of the ingredients of the crime. The effect of the Ordinance – bringing gender neutrality and widening the definition of non-consensual sexual assault – is welcome. But more needs to be done.

The Ordinance has brought gender neutrality in rape law only in form and not in substance. Despite the introduction of a gender-neutral ‘person’ in the definition of sexual assault, the Ordinance fails to discontinue the gendered use of the expressions ‘his’ and ‘penis’. Gender neutrality in rape law and usage of such terms cannot co-exist and the latter must go. And the easiest way out will be to substitute the word ‘penetration’ with ‘insertion’ so that the law eliminates all hints of gendered overtones.

The recent gang rape in Delhi – which deeply inspired the abrupt promulgation of the Ordinance – put sexual violence as firmly at the core as it eradicated the myths of sexual perverseness. But, unfortunately, it was a lesson left unlearnt. So, perhaps, the government will need few more such incidents to experiment the entire matrix of the crime before it endorses such a view and reflects it in its legislation.

With all the focus lying on women victims, little thoughts have been directed at the guaranteed failure of the law in fulfilling its objective of brining reforms in rape law. The retention of marital rape is one demonstration of this failure; sexual assault by a ‘man’ with his ‘wife’ is not sexual assault. The law does not recognize sexual assault by a woman with her husband just as it does not recognize sexual assault by a woman on her legally-estranged husband.

Besides being partially biased against men, the Ordinance appears to be completely indifferent to the plight of the members of the LGBT community. The non-acknowledgement of sexual violence arising from the social ties between members of the LGBT community is unbecoming of modern rape law. The edifice for future reforms in rape law cannot rest on such archaic understanding and will fall sooner or later.

But we must be reminded that the Ordinance is subject to the approval of the Parliament. The President has the powers to withdraw the Ordinance also. In either case, the Ordinance is going to lapse in the future. If at all the Ordinance takes the form of a law after it is given effect to by the Parliament through legislation, the controversial provisions defining criminal behavior may well be subject to judicial review.

But in any case, the law as it stands today is not sufficient to prevent crime or punish criminals; it simply reinforces the idea of deterrence and retribution. The necessity to reform criminal laws is certainly immediate. But the fear and magnitude of sexual crimes today is so intense that we require innovative skills to address this necessity. The people of India must be prepared to competently respond to sexual crimes not because of stringent laws and capable governments but despite them.

January 22, 2013

In Tribute to Prof. Durgadas Banerjea

Professor D Banerjea, as he is popularly known, was one of the founding fathers of National University of Juridical Sciences. He taught criminal law in NUJS and was also the then Coordinator of the School of Criminal Justice and Administration. He left NUJS in early 2008. A page on Orkut dedicated to Professor Banerjea reads follows:  

"His long career in studying and teaching criminal law is unparalleled. Having taught most of the senior IPS officers in the country, he commands immense amount of respect from people from different walks of life, including government officials, academicians, legal personalities, activists. He is undoubtedly the most respected teacher in our NUJS family. This is the community for the people who admire him."

 I requested Prof. Askand Pandey to say a few words and share his experiences with Prof. Banerjea so that our readers know more and understand better about this illumining personality. Prof. Askand Pandey - who was a part of NUJS in the initial years - is presently teaching at RMNLU.

His message to me is pasted below:

"Professor D. Banerjea Sir's death has saddened everyone who knew him. I first saw him in the Selection Committee interviews, where I was a candidate for lectureship and he was one of the Members of the august panel which also included Prof. M.P. Singh (who later became the VC of NUJS) and Prof. Pillai, and few others. Fortunately, I got the opportunity to work with him for two years between 2004-2006. 

Professor Banerjea was a father figure to all the young faculty members who looked up to him for inspiration and encouragement and he always did in style. He was a judge-turned-academic and loved teaching to the hilt. For many many years, he was one of the popular and respected professors in the Adiministrative Training Academy at Mussourie and has brilliant disciples as IAS officers in every part of the country. 

I received his blessings throughout and he had sensed my interest in criminal justice system, even when in NUJS I was teaching subjects such as Banking Law; Science, Tech &Law; Media Law, Biotech Law. Though technically, i was part of a different school in NUJS, he involved me in many projects, seminars and workshops organised by the School For Criminal Justice Administration (SCJA). Prof. Banerjea used latest pedagogy and technology in his classes and thereby setting an example for the young teachers.

I feel myself privileged to have had a mentor like Prof. D. Banerjea in the early days of my career. We had promised to meet each other, after I left NUJS. Alas! That would remain a promise unkept. May his soul rest in peace."

Thank you Prof. Pandey for this beautiful note.