Tag: #CodeofCriminalProcedure

CITATION

(2017) 9 SCC 1

INTRODUCTION

The case of Shayara Bano vs Union of India refers to a landmark judgment by the Supreme Court of India in 2017 that upheld the constitutional validity of the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who challenged the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process.

FACTS

Shayara Bano vs Union of India is a landmark case that challenged the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who had been married to Rizwan Ahmed for 15 years and had two children. In October 2015, her husband divorced her by sending a letter with the word “Talaq” written thrice. Shayara Bano was devastated by the sudden and arbitrary divorce and decided to challenge the practice of Triple Talaq in court.

Shayara Bano’s petition challenged the legality of Triple Talaq, Nikah Halala, and polygamy, which are practices prevalent among the Muslim community in India. Triple Talaq is a practice that allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process. Nikah Halala is a practice where a divorced woman has to marry another man, consummate the marriage, and then get divorced again before remarrying her former husband. Polygamy is a practice where Muslim men are allowed to have multiple wives. Shayara Bano argued that these practices violated her fundamental rights as a woman and went against the principles of gender justice and equality enshrined in the Indian Constitution. She contended that the practices were arbitrary, and discriminatory, and left Muslim women vulnerable to abuse and injustice. She also argued that the practices were not essential to the practice of Islam and should be declared unconstitutional.

PROCEDURAL HISTORY

The case of Shayara Bano vs Union of India was filed in the Supreme Court of India on February 2016. Shayara Bano, the petitioner, challenged the constitutionality of the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying the word “Talaq” three times in one go.

The case was assigned to a five-judge bench of the Supreme Court, which held several rounds of hearings and considered arguments from both sides. The bench was headed by Chief Justice J.S. Khehar and included Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, and Abdul Nazeer. The first hearing in the case was held on May 11, 2017, and the court directed the Union of India to file its response to the petition. The All India Muslim Personal Law Board (AIMPLB) was also allowed to intervene in the case and present its arguments.

The Union of India, represented by the Attorney General, took a neutral stand on the issue and argued that it was up to the Supreme Court to decide whether Triple Talaq was constitutional or not. The AIMPLB, on the other hand, supported the practice of Triple Talaq and argued that it was a matter of personal law and should be left to the community to decide.

The court held several rounds of hearings over the next few months and heard arguments from both sides. The bench also received submissions from several other Muslim women who had been victims of Triple Talaq and other similar practices.

Finally, on August 22, 2017, the Supreme Court delivered its judgment on the case.

JUDGEMENT AND ANALYSIS

This case is a landmark judgment that has inspired many women to make bold movements and is famously known as the judgment that changed India. This landmark case is also known for its unique diversity in the religion of the judges as it was headed by a Sikh Judge followed by judges from other religions namely, Christianity, Islam, Parsi, and a Hindu judge. In this case, Shayara Bano along with 4 other Muslim women was subjected to talaq e biddat also known as instant triple talaq. They demanded that talaq e biddat should be declared unconstitutional because they believed that it violated their fundamental rights. Hence the five-bench constitution bench mentioned before they were formed. It is also quite ironic that there was no women judge on the bench given the fact that the case dealt with gender justice. The verdict of this case was quite unexpected as the Supreme Court neither constitutionally banned nor legally, instead, they set aside the Muslim Personal law related to triple talaq. 2 out of the 5 judges namely CJI Khehar and Justice Nazeer said this law cannot be banned and the other 2 judges namely justice R.F.Nariman and Justice U.U.Lalit declared it unconstitutional. It was read perhaps for the first time that a Muslim Personal Law is also a fundamental right as the law comes under the religion of Islam and people have the right to practice any religion as a fundamental right. Thus, they said the law must not be banned.

On the other hand, the other two judges declared that the act was arbitrary, that is without any application of logic and also violating the fundamental rights of the women, the law is unconstitutional. They read that the Muslim personal is a pre-constitutional law that is not arbitrary and thus is to be banned. The last judge, Justice Kurian Joseph said that triple talaq is unislamic. He went on to justify his statement by stating that for talaq to occur, there are two prerequisites for the same. Justice Kurian Joseph said that for talaq to be valid, there must be reconciliation and arbitration and that in the form of triple talaq, there is no scope for either as it is irrevocable. Reconciliation and arbitration are two essentials of Islam divorce law where both parties may plan to reunite after marriage. Even though the judges did not declare it unconstitutional, it was sent forth to the parliament for implementation. Eventually, on 28 December 2017, the Lok Sabha passed the bill with a majority. 

The question here is whether the passing of the bill is a violation of the Islamic principle or a stepping stone toward women’s empowerment. 

We can see how patriarchal the laws are as the only way in which Muslim women can get separated from their Muslim husbands is by Talaq-e-Tafweez. The wife can approach the court for the dissolution of the marriage under the Muslim Marriage Act, of 1939 if any of the said conditions are practised by the husband. Moreover, it is like an agreement, they don’t have the option to pronounce talaq in different ways as Muslim men do. When talaq-e-biddat was banned in Shayara Bano v. Union of India., some sort of legal protection was awarded to the Muslim women and this landmark judgment was a ray of hope for them. 

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women at the time of divorce can ask their husbands for maintenance only until the Iddat period. If the woman is not in a position to maintain herself and she has not married again, she is not entitled to ask her former husband for maintenance. Its constitutional validity was challenged in the landmark case of Daniel Latifi & Anr., v. Union of India.^[1], where it was argued that the rights of Muslim women are violated under articles 14, 15, and 21 of the constitution. Therefore, it was held that women are to be awarded maintenance under section 125 of CrPC. This section ensured that women in general is protected from destitution and vagrancy and were secular in nature.

These two landmark cases ensured the protection of the rights of women and a better position in society along with giving a wide interpretation of article 44 and the Uniform Civil Code. 

CONCLUSION

Men under Muslim law have the right to marry 4 women at a time whereas women can contractually enter only a single marriage. This clearly shows the patriarchy that women face and their plight when compared to men. In the present world of advanced science, technology, and advanced thinking, where there are different methods that have been developed for the rescue of people like adoption, IVF, etc. the procreation capacity of women cannot be considered a justification for polygamy. In such a scenario, UCC needs a safe and secure future for women in society. This is an important issue in the current scenario because, in many of Islam-practicing countries like Iran, Tunisia, Pakistan, etc. polygamy has already been abolished. It is high time for a country like India which give immense importance to human rights and equality to consider the same.

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ENDNOTES:

1. Daniel Latifi & Anr., v. Union of India., (2001) 7 SCC 740

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

–Report by Shweta Sabuji

The judgment and order from the learned Single Judge of the High Court, dated April 4, 2019, that overturned the Trial court’s orders by Section 482 of the Criminal Procedure Code is being contested in the present case of MITA INDIA PVT. LTD. Versus MAHENDRA JAIN.

FACTS:

Mahendra Jain was given a contract by the appellant company, M/s.Mita India Pvt. Ltd., for the relocation of a 33 K.V. electrical overhead line at its Dewas factory. The appellant company unintentionally paid an excess payment in connection with the aforementioned contract. The respondent sent two checks to the appellant company for its return after agreeing to refund the excess money. Cheques were returned due to “stop payment” instructions. By section 138 read with Sections 141/142 of the Negotiable Instruments Act of 1881, the appellant company filed a complaint in the Court of Chief Judicial Magistrate, Dewas through its authorized representative Ripanjit Singh Kohli. Respondent made two petitions in the aforementioned complaint. – Kavindersingh Anand cannot testify in court because the complaint nowhere claims that he is aware of the facts and transactions, according to the first allegation that the complaint was not submitted by an authorized person.

PLAINTIFF’S CONTENTIONS:

Ripanjit Singh Kohli, the company’s authorized representative, submitted the lawsuit on behalf of the appellant company, according to a cursory review of it. Thus, the appellant corporation is filing the lawsuit under its name. It hasn’t been submitted in the power of attorney holder’s name. The appellant corporation, the complainant, is allowed to file the complaint on its behalf through the holder of its power of attorney. 10. The appellant corporation has granted Kavindersingh Anand, one of its directors, a broad power of attorney.

The aforementioned power of attorney was implemented following its proper approval by the board of directors at its meeting on May 1, 2010, which took place. As a result, KavindersinghAnand, one of the appellant directors, business’s is the true and legal representative of the company and holds power of attorney on its behalf. The aforementioned power of attorney expressly grants him the right to choose “counsel” or “special attorneys” to handle every case and to carry out any other actions necessary for the proper prosecution or defence of legal or fictitious judicial proceedings anywhere in the world. The power of attorney mentioned is based on the aforementioned power of attorney, Kavindersingh Anand gave Ripanjit Singh Kohli permission to file the relevant complaint.

JUDGEMENT:

The trial court denied the initial application in a ruling dated January 30, 2018. After the second application was turned down on July 23 of this year, a criminal revision was filed and later dismissed by a decision dated September 26. The respondent invoked jurisdiction under Section 482 of the Criminal Procedure Code to challenge these three orders. By the contested order, the High Court granted the petition brought under Section 482 of the Criminal Procedure Code and directed that the aforementioned orders be set aside because the complaint was not brought by the person authorized and that Kavindersingh Anand, who was granted the power of attorney, lacked legal standing to sub-delegate the said power to Ripanjit Singh Kohli, the designated representative. Second, Kavindersingh Anand is not authorized to testify on the company’s behalf.

READ FULL JUDGEMENT: https://bit.ly/3YQqm9T

–Report by Shreya Gupta

In the recent case of SURAJ MALIK Versus THE STATE GOVT. OF NCT OF DELHI, the bail was sought under section 439 of CrPC, 1973. The applicant was arrested under Sections 498A/306/34 of the Indian Penal Code, 1860. The petitioner, in this case, is Suraj Malik and the respondent is the state govt. of NCT of Delhi.

FACTS:

Shefali Malik the deceased was admitted to the hospital on account of burn injuries by her neighbour. It was revealed to the police that she was married for less than 7 years to her husband who had a 4-year-old son from his previous marriage on account of which F.I.R. was registered. The statement the patient was taken in which she admitted that she burned herself because she did not want to live as her mother-in-law used to taunt her for dowry and harasses her. She also claimed that her husband used to abuse her and that her sister-in-law was innocent. The F.I.R. was filed under Sections 498/306/34 of the IPC was registered and an investigation was taken up.

PETIONER’S CONTENTIONS:

The advocate of the applicant stated that the statement given by the father of the deceased varied completely from the dying declaration of the deceased. He alleged that statement was given by the father only to add section 304B to the F.I.R. since earlier it was registered only under section 306 of the IPC. He stated that there was no abetment to suicide. He also added that the deceased in the hospital asked the applicant to stay with her. He stated that since the chargesheet is already filed there is no useful purpose in making him stay under custody. He supported his arguments with previous judgements of i. Ranjeet Singh v. State, 2005 (2) J.C.C. 905 ii. Kamal @ Kailash Joshi v. State, 2007 I.A.D. (Delhi) 31 iii. Nitin Kumar v. State, 2015 IVAD (Delhi) 109 iv. Deepak v. State, 120 (2005) D.L.T 146.

RESPONDENT’S CONTENTIONS:

The father of the deceased alleged that she was harassed and demanded a dowry. He alleged that the applicant and the mother-in-law burnt his daughter to death. He alleged that her daughter was asked for Rs. 25 lakhs out of which he already gave Rs. 10 lakhs in demand of it. He also alleged that her daughter was pregnant but they got her aborted because Suraj malik already had a son from his previous marriage. He also alleged that she was maltreated when she got pregnant for the second time. The advocate mentioned that it is stated in the dying declaration that she was harassed and abused by her husband and mother-in-law.

JUDGEMENT:

The court stated that “Perusal of the aforesaid dying declaration made by the deceased reflects that the deceased was not happy at her matrimonial home, more specifically, with her relationship with her mother-in-law, but at the same time the fact that she did not make any allegation with respect to demand of dowry made by the present applicant cannot be lost sight of.” The court further passed his application for bail provided with some terms and conditions and a personal bond of Rs. 50,000 and a surety.

READ FULL JUDGEMENT: https://bit.ly/40YO59g

Neutral Citation Number: 2023/DHC/001062

–Report by Sanstuti Mishra

The Supreme Court bench comprising Justices S Abdul Nazeer and V Rama Subramaniam observed that a minister or public servant could file a private complaint alleging defamation and need not follow the particular procedure prescribed by Section 199(2) & (4) CrPC on 17th October 2022 in the case of MANOJ KUMAR TIWARI vs MANISH SISODIA & ORS.

Facts 

Manish Sisodia herein filed a   complaint under   Section   200 of the Code of   Criminal   Procedure, 1973 against six individuals, on the file of the Additional Chief Metropolitan Magistrate, Rouse Avenue Courts, New Delhi, alleging commission of the offences under Sections 499 and 500 read with Sections 34 and 35 of the Indian Penal Code.

The petitioner held that Manoj Tiwari, apprehended a Press Conference making false and defamatory statements as though he was involved in corruption to the tune of Rs. 2000 crores, in the matter of award of contracts for building classrooms in Delhi Government Schools. Shri Vijender Gupta also tweeted defamatory content against   Sisodia, and the person named Respondent No.6 in the complaint also made defamatory statements in his tweets. 

Petitioner’s contention 

Sisodia had accused three BJP leaders of defaming him through “insulting publications” it said were based on “fabricated” allegations. The deputy Chief minister necessitated an apology.

In November 2019, a trial court ordered the summons of BJP leaders and others accused of defamation in a criminal case filed by the Deputy CM of Delhi. BJP leaders sought relief from the Supreme Court, which denied it.

Respondent’s contention 

Shri R. Venkataramani and Ms Pinky Anand, learned senior counsel appearing for Manoj Tiwari and others argued that respondent   No.1   should have followed the special procedure prescribed in Section 199(4) of the Code of Criminal Procedure, as he happens to be a Minister of a Union Territory; they also put forward that the transcript of the tweets attributed to him was not accompanied by a valid certificate in terms of Section 65B of the Indian Evidence Act. They argued that the tweets made by him per se do not make out a case of defamation in terms of   Section   499   IPC, punishable under Section 500 IPC. The counsel referred to past judgements in P.C Joshi and Another vs. State of   Uttar Pradesh; Subramanian Swamy vs. Union of India; and K.K. Mishra vs. State of Madhya Pradesh and Another. 

Judgement 

The bench concluded that on grounds that the history of the law commission report was not properly traced, the appeal by Vijender Gupta was allowed and on the other hand the appeal by Manoj Tiwari was dismissed. 

“The special procedure is in addition to and not in derogation of the right that a public servant always has as an individual. He never lost his right merely because he became a public servant and merely because the allegations related to the official discharge of his duties”, the bench of Justices S. Abdul Nazeer and V. Ramasubramanian said.

The court ruled that Shri Vijender Gupta’s appeal was successful only because the statements contained in his tweets were not considered defamatory within the meaning of Section 499 of the IPC.

The court explained that defamatory statements should be specific as an essential ingredient and not too vague or general. Hence statement made by Sri Vijender Gupta “your answer will disclose your scam” cannot be one, It cannot be intended to damage the reputation of Defendant Manish Sisodia.

INTRODUCTION

The English word “mob” refers to an unruly or chaotic crowd. Lynching, which imposes the death penalty without trial, is a term with American and Latin roots. This is known as mob lynching and occurs when an unruly mob kills or otherwise harms a criminal suspect. Such incidents have recently become commonplace in India, especially in states such as Rajasthan, West Uttar Pradesh, Madhya Pradesh, and Bihar. Mob lynching cases were perpetrated for their true cause of hatred with a different label. There are very few or no circumstances in which the claims made have been substantiated. India is a country that is constantly grappling with this issue as it has failed to criminalize the disease despite numerous lynching. Lynching is a premeditated, collective, extrajudicial killing¹. It is most commonly used to describe an impromptu public murder carried out by a mob to scare a group or punish a suspected criminal. Similar to charivari, Simington, railing, tear, and feathering, this is an extreme form of informal social group control, often performed in public for maximum intimidation. It should be considered an act of terrorism that should be prosecuted. Lynching and other forms of mob violence occur in every community. Mob lynching have been on the rise in India in recent years. Lynching is a term that refers to a death committed by a mob against legal authority. Caste, religion, geography, politics, witchcraft, and intolerance are the main causes of mob lynching in India.

REASONS AND INCIDENTS OF MOB LYNCHING

The recent rise in mob lynching in India demonstrates the strangely barbaric conduct of people. When a person is lynched by a mob, they may also injure or kill that person if they are seen by the mob as having committed a crime against the community. The following are some well-known mob lynching episodes that took place in India:

MOTIVATED BY RELIGION AND CASTE

In India, there is a long history of violence motivated by caste and religion. The majority of the recent rise in mob lynching can be attributed to intolerance and animosity toward other religions and castes in the guise of proclamation, practice, traditions, and caw. A rumor of cow slaughter led to the killing of five Dalits from Haryana in 2002, and more recent riots in Muzzafarnagar and Kokraijhar show that caste and religion play a role in mob lynching (Bakshi & Nagarajan, 2017). In the first instance of a mob killing a person in the name of cow or beef. Mohammad Akhlaq and his son Danish were killed in Bidara village, Uttar Pradesh, in September 2015 after the mob accused them of stealing, butchering, and storing a cow-calf for consumption².

PALGHAR MOB LYNCHING, 2020

The most recent and serious incident that seriously startled the nation and caused humanity to collapse. Two Hindu Sadhus and their driver were lynched by a vigilante mob on April 16, 2020, at Gadchinchale Village, Palghar District, Maharashtra, India. WhatsApp rumours of robbers being active in the neighbourhood during the nationwide coronavirus lockdown fueled the incident. The three travellers were slain because the vigilante villagers thought they were robbers. Four police officers and a senior police officer were hurt when police officers who intervened were also attacked. The Maharashtra police have detained 115 villagers as of May 4 on suspicion of murder. Following the tragedy, rumours were circulated to fuel religious animosity. Anil Deshmukh, the home minister for Maharashtra, published a comprehensive list of those detained on April 22 and claimed that none of them was Muslims. According to the administration, the attackers and the victims belonged to the same religion. In the past, rumours spread via WhatsApp have sparked lynching and attacks in India, where the rapid spread of false information has resulted in violent repercussions. Fake news frequently involves reports of kidnappings of children or roving bandits³.

The villagers established a vigilante group after hearing rumours of possible nighttime activities by organ harvesting gangs and kidnappers in the area. A WhatsApp rumour that said a group of young robbers was active in the region during the lockdown was spreading around the hamlet, according to the Gadchinchale Sarpanch (village head). At the time of the occurrence, India was on national lockdown owing to the coronavirus pandemic. The villagers assumed the people inside the car were part of the child thief group because the car arrived at night.

The 70-year-old Chikne Maharaj Kalpavrukshagiri, the 35-year-old Sushilgiri Maharaj, and the 30-year-old Nilesh Telgade, their driver, were on their way to Surat to attend their Guru Shri Mahant Ramgiri’s burial. A forest department sentry halted their automobile at a local checkpoint in Gadchinchale, 140 kilometres north of Mumbai, at around 10 pm. The vigilante group approached them and attacked them with sticks and axes while they were speaking to the sentry. According to The Indian Express, the victims were thought to be child thieves and organ harvesters. The police attempted to contain the throng, but when they intervened, they were battered, according to accounts that appeared on April 17. In the event, four police officers and a senior police officer were hurt.

Several spectator recordings went viral on April 19. A policeman can be seen escorting Kalpavrukshagiri from a structure in one of the videos. While the police attempt to maintain order, Kalpavrukshagiri is seen pleading for his life as the mob attacks him. He is then taken by the attackers, who kill him. A police patrol car’s windows are broken by the mob in another video. Another video shows the car rolling over with the glass shattered. On April 19, this incident sparked uproar across the country as the footage on social media went viral and the Maharashtra Government came under fire.

Devendra Fadnavis, a former chief minister of Maharashtra, and Yogi Adityanath, the chief executive of Uttar Pradesh, are two opposition figures who have called for a high-level investigation into the incident. On April 20, Mahant Hari Giri, the Mahamandaleshwar of Juna Akhara, called for immediate action against the lynching’s perpetrators and the police.

Home Minister Amit Shah was urged by Uddhav Thackeray to take action against individuals who were inciting religious conflict. Sachin Sawant, the general secretary of the Maharashtra State Congress, accused the BJP of engaging in “communal politics” in response to the lynching. “For the past ten years, including the position of the village head, the village of Divashi Gadchinchale has been known as a BJP stronghold. The present leader is also a BJP member. The majority of those detained in connection with the lynching are BJP members.” The BJP refuted the allegations.

The Maharashtra police chief was requested by the National Human Rights Commission of India to send a report detailing the legal actions against the offenders and any relief given to the victims’ families within four weeks.

On May 24, 2020, a seer named Shivacharya Guru was murdered in Nanded⁴, and on May 29, 2020, a seer in Palghar was the victim of another incident.

AFTERMATH OF LYNCHING ON THE SOCIETY

India is growing in power around the world, but the Horde seems to have the law in their hands and nothing can be done to stop them. In India, crime is still ongoing and there is no end in sight. The Equal Human Rights Commission is also responsible for the life-saving right to life protected by Section 2 of the Human Rights Act and indiscriminately eradicated in India. The central government does not provide compensation. At least some limits may have been put in place to stop these atrocities. Some state governments have even paid compensation in cases that seemed plausible, but that does not do justice to the families or states that failed to provide this assistance. More than half of the incidents go unreported due to a lack of data and evidence but are generally known. The National Criminal Records Bureau has been unable to classify mob lynching as a specific crime. This crime is atrocious and a complete disaster to save human life. That’s why we choose the government. We want to avoid being exposed to such crimes and instead want to be rescued and protected. Victims suffer the most as their homes are destroyed and families are torn apart.  What will mothers and children do with their lives when their primary breadwinner dies? They remain ignorant and illiterate for the rest of their lives. There are no laws to protect the families of lynched victims. At least the irreversible part should not be the cause of her pain. Crime is high in India, but few crimes require government compensation. This is one such situation that can only be addressed if the government criminalizes mob lynching. Every day, people die as a result of these hate crimes, often unaware that they are in such a horrific situation when their own lives are in danger. To protest hate crimes like this, people are turning to social media to raise awareness and serve as a voice for their country without resorting to physical violence.

LAW AND ORDER ON MOB LYNCHING

Although mob lynching has a long history in India and is a horrific crime that violates basic human rights, there is no national law against it. However, national laws like the Indian Penal Code, the Indian Constitution, and the Protection of Human Rights,1993 Act may be connected to lynching offenses. The National Crimes Records Bureau (NCRB), the main repository of government information on crime in India, does not keep track of specific lynching incidents. People or a mob implicated in the same offense in the same act “may be tried jointly,” according to Section 223(a) of the Code of Criminal Procedure, 1973. The identical clause has not, however, been applied to administer justice thus far (Abraham and Rao,2017).

Lynching incidents are typically reported under section 302 for murder⁵, section 307⁶ for attempted murder, section 324 for injury⁷, section 147 for rioting⁸, and other sections of the Indian Penal Code. Sections of the Indian Penal Code such as 153A (promote hatred between groups and act against maintaining harmony), 153B (act against maintaining national integration)⁹, 295A (acts intended to offend religious feelings), and 295B (words intended to offend religious feelings)¹⁰ are regarded as the country’s hate crime laws. It has been noted that these rules have not been included in police First Information Reports against the accused in the majority of lynching cases. Furthermore, data is not supplied that is broken down by identified groups, even when hate crimes have been reported under these sections. The distinction between the “victim” and the “perpetrator” in these circumstances cannot be made (Citizens against hate, 2017).

The ‘community violence’ cases included in the NCRB report are similar, with only a brief note from the agency identifying the perpetrators and victims. After all, the above conservative laws produce at best insults when peace and harmony are disturbed and the religious sentiment is undermined. Little has been done to punish “hate-motivated” behaviour that is indirectly implicated in crimes committed against vulnerable populations by the majority of groups. Hate crimes are violent and coercive acts, usually committed against established communities that have been marginalized and stigmatized (Minority Rights Group, 2014:11).  Therefore, hate crime rules are not power-neutral. Rather, they exist to protect the weak. When the Legal Commission proposed introducing a new section 153C to the IPC, prohibiting “incitement to hatred” beyond inciting hostility and undermining national unity was considered hateful to India. It was recognized that there were no criminal laws. The Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act of 2015¹¹, which criminalizes violence and atrocities against Dalit and indigenous communities, the most oppressed areas of Indian society, has not been included in the Hate Crimes Act in the Indian legal system. The closest thing. Hate crimes against them are classified below as SC/ST crimes. However, the SC/ST law does not cover other socially disadvantaged groups, including persons with disabilities, members of racial and ethnic minorities, or those identified as Dalits among Muslims and Christians. Not intended for groups. As a result, hate crimes against these minorities are not recorded. The main sources of information on hate crimes against religious minorities in India are media coverage and sporadic academic research, but inadequate, as there is no official record. International and national organizations are helping victims of mob lynching. The Universal Declaration of Human Rights¹² guarantees equality before the law, equal treatment before the law, and protection from discrimination.  Article 20 of the International Covenant on Civil and Political Rights states that “the promotion of national, racial or religious hatred that constitutes discrimination, enmity or incitement to violence is prohibited by law.”. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination¹³ deals, inter alia, with incitement and acts motivated by racial superiority or hatred. Last but not least, Article 14 of the Indian Constitution¹⁴ guarantees that all citizens receive equal protection and equality before the law. Furthermore, Article 15¹⁵ of the Constitution prohibits discrimination based on sex, ethnicity, or religion, and Article 21¹⁶ of the Constitution guarantees that all citizens have the right to life and liberty.

CONCLUSION

Without a doubt, crowded mechanisms have no place in democracies; the sociology of the crowd is the product of individual thought or can be interpreted as popular indignation of a specific crime. In any event, one cannot take the law into their own hands. It will have to go back to the traditional tribal penal system. Instead of simply following the crowd without understanding its goals, it is better to endeavour to correct it as part of one’s social ethical, and national obligation. This is both a time demand and a necessity.

REFERENCES

1. Mohammad Ali, Akhlaq’s family booked for cow slaughter, The Hindu(16^th July,2016 03:16 IST) Available at: https://www.thehindu.com/news/national/other-states/Akhlaq%E2%80%99s-family-booked-for-cow-slaughter/article14491380.ece
2. Gautam S. Mengle,3 lynched in Palghar after rumours over mistaken identity, The Hindu (APRIL 18, 2020 01:15 IST) Available at: https://www.thehindu.com/news/cities/mumbai/3-lynched-in-palghar-after-rumours-over-mistaken-identity/article31371237.ece
3. The Indian Penal Code, 1860,$ 302, Act No. 45,Acts of Parliament,1860(India)
4. The Indian Penal Code, 1860,$ 307, Act No. 45,Acts of Parliament,1860(India)
5. The Indian Penal Code, 1860,$ 324, Act No. 45,Acts of Parliament,1860(India)
6. The Indian Penal Code, 1860,$ 147, Act No. 45,Acts of Parliament,1860(India)
7. The Indian Penal Code, 1860,$ 153 A & B, Act No. 45,Acts of Parliament,1860(India)
8. The Indian Penal Code, 1860,$ 295 A & B, Act No. 45,Acts of Parliament,1860(India)
9. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989,No. 33 of 1989, Acts of Parliament,1989(India)
10. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 10 September 2022]
11. UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195, available at: https://www.refworld.org/docid/3ae6b3940.html [accessed 10 September 2022]
12. The Constitution of India, 1950, Art. 14
13. The Constitution of India, 1950, Art. 15
14. The Constitution of India, 1950, Art. 21

This article has been written by Jay Kumar Gupta. He is currently a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.

Case Number

Criminal Appeal No. 329/2021

Equivalent Citation

2021 SCC OnLine SC 230

Bench

• Justice S Ravindra Bhat
• Justice AM Khanwilkar

Decided On

March 18, 2021

Relevant Act/Sections

• Section 376 of the Indian Penal Code, 1860
• Section 506 of the Indian Penal Code, 1860

Brief Facts & Procedural History

The petition was filed by Advocate Aparna Bhat and eight other lawyers in response to an unjustified order issued by the Madhya Pradesh High Court on July 30, in which the accused of sexual assault was ordered to visit the victim’s home on the occasion of Raksha Bandhan with Rakhi and be tied by her as a condition of bail. The accused, who is a neighbour of the complainant Sarda Bai, entered her house on April 20, 2020, and attempted to sexually harass her, prompting the filing of (hereafter referred to as IPC). After the case was investigated, a charge sheet was filed. Under section 438 of the Code of Criminal Procedure, the accused filed an application for anticipatory bail (hereafter referred to as Cr.P.C.) The accused was granted bail by the Madhya Pradesh High Court on the affliction that he and his wife visit Sarda Bai’s house on the occasion of Raksha Bandhan on August 3, 2020, with a package of sweets and ask her to tie the Rakhi to him with the pledge that he will protect her to the best of his ability in the future. The accused was also directed to hand up Rs. 11,000 as a gesture of gift given by brothers to their sisters as part of the customary Raksha Bandhan rites, which the petitioners have challenged before the Hon’ble Supreme Court.

The petitioner filed a writ plea in the Supreme Court of India against the Madhya Pradesh High Court’s order. The following prayers were included in the petition:

1. The Supreme Court directed the High Courts and trial courts not to make such observations in situations of rape and sexual assault which would trivialize the anguish endured by the victim and impair their dignity.
2. The courts should not aim at compromises such as encouraging marriage between the accused and the prosecutrix and it should not be considered a judicial remedy. Compromises like this go against a woman’s honour and dignity. The petitioner cited the case of State of Madhya Pradesh v. Madanlal¹ in support of his claim.
3. The appellants further urged that no judge make any remarks or observations in the ruling that would reflect their prejudices and harm the woman’s dignity.
4. In circumstances of sexual assault, no such restriction should be imposed that permits the applicant to see the complainant or her family members. The court was requested to provide gender sensitization directives for the bar and bench, as well as law students.
5. Also, under Sections 437 and 438 of the Cr. P.C, the court was asked to set instructions on legally feasible bail terms.

Issues before the Court

• Can a compromise be struck between the accused and the victim in such instances?
• Is it acceptable for courts to issue such orders, and if so, what effect will such judgments have on society?
• Do such directions constitute to conduct of the trial in an unfair manner?
• Can the accused be permitted to meet the survivor or any of the members of her family?
• What, most importantly, should be the guidelines that courts should follow when granting bail and anticipatory bail?

Decision of the Court

In rape and sexual assault cases, the court clarified that no compromise can be made or even considered under any circumstances because it would be against her honour. Courts and other law enforcement authorities are intended to be neutral agencies and are tasked to guarantee the fair conduct of the trial by preserving impartiality and neutrality. And such techniques in rape and sexual assault trials would shatter rape survivors’ faith in the court’s impartiality. The court also noted that women’s status and society’s attitude toward them are both poor, and they suffer greatly. They are already experiencing numerous problems in their life for being a woman in our culture.

Judgements set precedents that the entire society adopts at different stages: By judicial decree, orders such as tying Rakhi on the accused’s wrist transform the molesters into brothers, reducing and degrading the charge of sexual harassment. Therefore, the use of reasoning/language which lessens the offence and seeks to belittle the victim is notably to be avoided under all circumstances. The law does not allow or condone such behaviour, in which the survivor may be traumatized several times or forced into some form of non-voluntary acceptance, or be pushed by circumstances to accept and condone behaviour that is a major violation.

The petitioners urged that the High Court’s decision should be overturned. The petitioners argued that Sections 437 (3)(c) and 438(2)(iv) of the CrPC permit courts to impose whatever condition they see proper in the public interest, but that the conditions must be consistent with the other provisions. When considering cases of rape and sexual assault, the court in Ramphal v. State of Haryana² concluded that compromise is irrelevant. The petitioner also requested that no judgement or order be passed by the court that could affect the dignity of women or the fair and unbiased conduct of trials, citing several cases where the apex court has rejected the idea of compromise on the grounds that it is antithetical to the woman’s honour and dignity and that it disparages and downgrades otherwise heinous crimes, implying that such offences are remediable by the judicial system.

The intervenors’ counsel argued that the court had the competence to impose sanctions under Sections 437(2) and 438. Requirements come in a broad variety of forms, and the court cited a number of cases in which judges imposed specific conditions for granting bail.

In its order, the Supreme Court framed various guidelines. These are as follows:

1. Contact between the accused and the complainant should never be allowed as a condition of bail, and if bail is granted, the complainant should be informed as soon as possible, along with a copy of the bail order being delivered to her within two days.
2. Bail conditions must precisely adhere to the stipulations of the Cr.P.C., and the order shall not represent patriarchal attitudes toward women.
3. Any offer to the accused and victim for a compromise, such as getting married or mandating mediation, should be ignored since it is outside the court’s authority.
4. The court has ordered a module as part of every judge’s basic training to ensure that judges are sensitive while considering cases involving sexual offenses and to minimize ingrained societal bias and sexism.
5. The National Judicial Academy has also been urged to integrate gender sanitization as soon as feasible in the training of young judges.
6. Similarly, the Bar Council of India has been mandated to incorporate gender sanitization in the LL.B. curriculum and as a mandatory topic in the All-India Bar Exam syllabus.

The Supreme Court commended the petitioner for his insightful ideas and overturned the Madhya Pradesh High Court’s bail terms. The court has established certain criteria in this regard. It also agreed to the recommendations for a gender sensitization curriculum in law schools, as well as for the bar exam and introduction training for newly appointed judges.

Conclusion

The victims of sexual abuse have always been blamed on Indian society. Women have been questioned repeatedly about their behavior, clothing choices, attitude, and when they plan to leave their homes. During trials, judges have frequently reinforced this practice by questioning the victim and making remarks that stereotype particular behaviors and threaten to disrupt the trial. With the Supreme Court openly criticizing such behavior on the part of the courts, hope for judicial reform has been reignited. Gender sensitization seminars will also aid in raising awareness of the issue among legal professionals.

By delivering this order, the Supreme Court has established a significant precedent for courts to follow in dealing with sexual assault victims in the future. Discussing the faults of a patriarchal culture has set an example for its enormous audience. This will go down in history as a significant step toward women’s independence. It is hoped that if the standards are followed, we will not see such arbitrary conditions in judicial orders in the future.

Almost certainly that judges assume the most essential part as the educator, as the defender, and as the watchman, and anything they say turns into the points of reference that is then trailed by lower courts in their decisions, and consequently it turns out to be vital for the judges to take the most extensive level of care while offering any expression which influences the actual premise of legal executive and confidence of individuals. In cases connected with the assemblage of ladies and particularly in sexual offenses cases, even little mistakes either as a judgment or any assertion made by courts might prompt genuine offense against the survivors. There have been different examples of orientation related cases as of late when courts have believed the victim to make split the difference by permitting the accused to marry her or as in the present case by requesting him to get Rakhi tied on his wrist by the victim or by making some other split the difference as the court might coordinate. Such translations are horrendous in nature and show the quality of judges towards the ladies yet as it is said Judiciary is a self-recuperating process, present judgment by Supreme Court validated the explanation. Outlining the guidelines for orientation sterilization and adding it to the curriculum of LLB will assist the legal advisors with instilling the impartial and nonpartisan quality towards the ladies which will most likely assist the victims in fair direct preliminary with practically no dread on their part.

Intentional or otherwise, such comments by trial courts and high courts should be avoided at all costs. Judicial stereotyping is another term for this. When judges attach specific attributes to someone based on their gender, religion, caste, or race, this is known as judicial stereotyping. Judges often reinforce hazardous prejudices as a result of this, rather than questioning them as they are intended to. Because of the vast audience that court declarations serve; such remarks can have a greater social impact. Stereotyping also has the potential to undermine the judge’s impartiality, obstructing a fair trial. Creating rape myths or an idealized picture of a sexual assault victim also undermines the incident’s credibility and the harm suffered by survivors of sexual assault who do not fit the public image of a chaste lady.

Women are underrepresented in the legal profession, and women lawyers frequently experience discrimination and discriminatory remarks. As a result, in order to assure gender-biased-free judgments, the first step should be to create an equal environment within the institution and raise awareness about the issue. The answer to these ills comes from public discourse and keeping organizations with the potential to make a difference responsible. Such sexist judgments should be condemned and held up as an example of what is not acceptable behavior.

Citations:

1. (2015) 7 SCC 681
2. 2019 SC 1716

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

Case Number

CRL.A. 157/2013

Equivalent Citation

247 (2018) DLT 31

Bench

Justice S Muralidhar, Justice IS Mehta 

Decided On

November 30, 2017

Relevant Act/Section

• Code of Criminal Procedure, 1973
• The Indian Electricity Act, 1910
• The Indian Penal code
• The Companies Act, 1956

Brief Facts and Procedural History

An exhaustive judgment given on September 15, 2016, allowed the allure. Notwithstanding, on that date, the Court gave a different choice featuring three worries that emerged in a bigger setting and selected Prof. (Dr.) G.S. Bajpai, Professor of Criminology and Criminal Justice and Registrar, National Law University, Delhi, as amicus curiae to give guidance.

Issues before the Court

• Is the substantive law and procedure relating to the default in payment of a fine?
• Whether the existing law on suspension of sentence under Section 389 CrPC?
• Whether there is any provision that may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence?

Decision of the Court:

The Supreme Court communicated in Palaniappa Gounder v. State of Tamil Nadu¹ that “the fine discipline ought not to be pointlessly lavish”.

“However, there is the capacity to integrate a sentence of death or life imprisonment with a sentence of fine,” it was added. “That power should be polished with caution, considering that the life sentence is an outrageous discipline to force, and adding a fine to that grave discipline is not completely resolved to fill any accommodating need.”.”

The Supreme Court reaffirmed on account of Shantilal v. the State of M.P. that there was a total abuse of the arrangement of frameworks in Sections 63 to 70 IPC, causing legal to notice the instance of Shahejadkhan Mahebubkhan Pathan v. the State of Gujarat, where the Supreme Court totally abused the arrangement of frameworks in Sections 63 to 70 IPC.

Nonetheless, detainment for non-installment of fines is in another equilibrium. In the place where such a sentence is implemented, an individual is supposed to be detained in light of the fact that the person can’t pay the fine or won’t pay the fine. We are of the assessment that it is the occupant of the Court to keep an assessment of the case, the conditions under which it is held, the area of the case, the litigant, and other significant contemplations, for instance, the monetary conditions of the respondent in regard of and how much the offense prior to requesting that the culprit endure detainment when the individual in question is fined. The arrangements of Sections 63 to 70 of the IPC specify that the punishment rate ought not to be brutal or nonsensical. We additionally stress that in the case of a basic term of detainment, outlandish fines ought not to be forced by some other means than uncommon offenses. “

Clearly, no preparation is honored with use and purified in time that can’t be permitted to win in a circumstance where it attempts to cause disgrace. Each activity of the Court should be trailed by its governmental policy regarding minorities in society because of authentic worries about uniformity. Preparing not to give bail to an individual condemned to life detainment was going on in the High Courts and in this Court on the premise that assuming an individual is considered fit for preliminary and condemned to life detainment, the person ought not to be delivered. , as long as his endless sentence can be saved, yet the fundamental reason for this preparing was that the enticement of such an individual would be disposed of throughout some undefined time frame, so it was expected that he, at last, appeared to be dependable, he would have no need to endlessly remain in jail. The thought of this preparation may not have any significant bearing in the event that the Court isn’t in that frame of mind of interest for five or six years. Without a doubt, it would be a wrongdoing to compare and save an individual from jail for a time of five or six years for wrongdoing that at last seems to have not been carried out. When could the Court at any point pay him for his apparently outrageous captures? It would be fair regardless for the Court to tell the person: “We have admitted your enchantment as we suspect you are at legitimate fault for your appearance, yet tragically we have not had the potential chance to hear your temptation for a long time and, subsequently, up to this point. We hear your enticement, you ought to remain in jail, regardless of the way that you are straightforward? “the adjudicator could never have been overwhelmed by regret while eliminating such an individual in the wake of hearing the enticement? Could it not be an assault on his feeling of equity? in the past it ought to be reconsidered for quite a while as this Court isn’t in that frame of mind of hearing the temptation of the denounced as soon as possible, the Court ought to, except if there is valid justification to make a move regardless, delivering the indicted individual in situations where exceptional leave is taken into account the respondent to apply for conviction and sentence. “

Section 389 (1) states that in the repercussions of any allure against a respondent, the Court of Appeal may because it must be recorded as a held duplicate, demand that the sentence or allure be suspended in like manner, guaranteeing that he had the power, to be delivered on bail, or on his bond. This proviso acquaints the non-select power with suspending the condemning and award bail and notwithstanding suspending the activity of the basic allure.

This issue was completely inspected by a three-judge bench of this Court in Rama Narang v. Ramesh Narang and Ors.²

The legal position, appropriately, is clear that the Court of Appeal may suspend or grant an application for sentencing. However, the person wishing to remain guilty must clearly state the consideration of the Court reversing the consequences of his or her conviction. Unless the Court’s decision is based on the possible consequences of a conviction, the convicted person will not be able to apply for conviction. In addition, the reward for remaining guilty can be converted to extraordinary cases depending on the shocking facts of the case. “

The legal status of the Supreme Court under Section 389 of the CrPC is very clear, it is enough for this Court to repeat it.

There is a real need, right, for a formal (proper) administration to provide relief and rehabilitation for the injured through extrajudicial executions and arrests. Whether this should be a law that governs everything or a system that specifically addresses the needs of the survivor, and those who are unjustly imprisoned, including the family and guardians of the detainee, or these should be governed by different rules or arrangements for discussion, consideration, and consultation with The purpose of the article is to pay for those who are unjustly detained, questions about the circumstances and circumstances in which such assistance can be obtained, in what structure and at what stage and are matters for consideration. This is the best work left in the main case of a body tasked with informing government officials of control measures expected to fill an undeniable hole.

The Court, appropriately, compels the Indian Law Commission to attempt a thorough investigation of the matter referred to in paragraphs 11 to 16 of this application and to make its recommendation to the Government of India.

Conclusion

In this case, the Delhi High Court expressed profound concern over the plight of innocent people who have been unfairly convicted and imprisoned for crimes they did not commit. The Court emphasized the urgent need for a legislative framework to provide relief and rehabilitation to victims of wrongful prosecution and incarceration and urged the Law Commission to conduct a thorough review of the aforementioned issues and submit recommendations to the Indian government.

In the current state of the criminal justice system in the country, an adequate reaction from the state to victims of a miscarriage of justice resulting in erroneous prosecutions is absent. There is also no statutory or regulatory framework detailing the state’s approach to the problem.

According to the solicitation made by the court, the Law Commission of India introduced a report to the Government of India in August 2018 named “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies.” In this paper, the point is analyzed with regard to the Indian law enforcement framework, and the expression “wrongful prosecution” is suggested as the limit for a miscarriage of justice, rather than “wrongful conviction” and “wrongful imprisonment.” ‘Wrongful prosecution’ alludes to circumstances in which the blamed isn’t blameworthy for the wrongdoing, however, the police and additionally prosecution are occupied with bad behavior in exploring or potentially indicting the individual.

It would cover both cases in which the person served time in jail and those in which he did not; as well as those in which the accused was found not guilty by the trial court or was convicted by one or more courts but was ultimately found not guilty by the Higher Court. The report provides an outline of the various legal remedies and evaluates their shortcomings (also noted by the High Court in the aforementioned Order).

As a result, the Commission recommends enactment of a specific legal provision for wrongful prosecution redress – to provide monetary and non-monetary compensation to victims of wrongful prosecution within a statutory framework (such as counseling, mental health services, vocational / employment skills development, and so on). The Report lays out the core principles of the proposed framework, including defining “wrongful prosecution,” or cases in which a claim for compensation can be filed, naming a Special Court to hear these claims, the nature of the proceedings – timelines for deciding the claim, etc., financial and other factors to be considered in determining compensation, provisions for interim compensation in certain cases, and removing disqualification due to wrongful prosecution.

Hence, a legal (ideally legislative) framework for giving relief and rehabilitation to victims of wrongful prosecution and incarceration is urgently needed. In addition to the topic of paying persons who have been unfairly imprisoned, consideration should be given to the situations and conditions under which such relief would be available, as well as the form and stage at which such relief would be provided.

Citations:

1. (1977) 2 SCC 634
2. (1995) 2 SCC 513

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

Introduction

A country’s law should develop with the progression of time and the progression of time. In troublesome times, as in any respectful society, society requires more thorough and brutal guidelines, however the topic of how much stricter and more rigid a law should remain with regards to making a specific regulation. In India, a far-reaching and comprehensive way to deal with the laws is expected to oversee sexual offenses. A decent code ought to have three attributes, as per Macaulay, the planner of the Indian Penal Code: accuracy (liberated from vagueness), conceivability (simple clear by normal individuals), and it ought to be a product of legislature law-making (least judicial intervention).¹

The world is dynamic; changes happen in light of cultural prerequisites, as well as the overall individuals who have been involved in a situation in that society. For instance, there was basically no law to manage cyber-wrongdoings in the eighteenth century, yet because of innovative enhancements and dynamic perspectives, the Cyber Law grew simply. Because of the startling flood in the number of cyber dangers, ransomware, and other cyber offenses, we understood that law to address these advanced wrongdoings was required. Essentially, the Criminal Law Amendment Bill 2018 proposes to change key bits of the Indian Penal Code, the Criminal Procedure Code, and the Public Order and Security Act, as well as increment the base discipline for assault, including the age part.

Before the 2018 Amendment Act, the Criminal laws has been revised in the year 2013, concerning the previously mentioned issues as they were. The amendment in the criminal laws was required after the Nirbhaya case. Nirbhaya, a 23-year-old paramedical understudy, was violently gang-raped, assaulted, and tortured in a moving transport on the evening of December 16, 2012. She passed on from her wounds on December 28, 2012, in the wake of battling for her life. This deplorable demonstration ignited an impressive shock in the nation over. The public demanded that the charged be hanged, yet in addition that the nation’s assault laws be changed. Following the Nirbhaya episode on December 23, 2012, a three-part council was framed, drove by Late Justice J.S. Verma, previous Chief Justice of the Supreme Court of India, with Justice Leila Seth, previous Judge of the High Court, and Gopal Subramanium, previous Solicitor General of India, to prescribe changes to the Criminal Law to the Legislature to make assault laws and different violations against ladies more contentious. Accordingly, the Criminal Law Amendment of 2013 was sanctioned.²

Indeed, even after the draconian measures authorized by The Criminal Law (Amendment) Act, 2013 in the fallout of the Nirbhaya case, the general public was again stunned by a rate in Kathua, Jammu, and Kashmir. An 8-year-old young lady capitulated to a gang’s desire and was sexually assaulted and killed, therefore. This sickening episode fills in as a suggestion to society that the assault culture has continued as well as weavers in our general public, where such violations are finished without risk of punishment. Because of the far-reaching announcing and public objection encompassing the matter, parliament had to take on “restorative measures.” The Criminal Law (Amendment) Ordinance, 2018, was accordingly supported by the bureau and endorsed by the President on April 21, 2018. The announcement hardened the punishments for people blamed for assaulting youths, including capital punishment.

The Criminal Law (Amendment) Act, 2013

The Criminal Law (Amendment) Act, 2013, was approved by the Lok Sabha on March 19, 2013, and the Rajya Sabha on March 21, 2013. The Bill was signed by the President on April 2, 2013, and it was deemed to take effect on February 3, 2013. On 3 February 2013, India’s President, Pranab Mukherjee, issued an Ordinance to that effect.

The Criminal Law (Amendment) Act of 2013 updated and added new sections to the Indian Penal Code (IPC) relating to numerous sexual offenses. Certain acts were expressly recognized as offenses under the Act, which were dealt with under relevant laws. The Indian Penal Code has been amended to include new offenses such as acid attacks, sexual harassment, voyeurism, and stalking.³ The amendments made by the Act are mentioned as follows:

1. Section 354A
   Previously, a man who makes unwanted sexual advances, forcefully shows pornography, or demands/requests sexual favors from a woman committed the offense of sexual harassment simpliciter under section 354A, which is punishable by up to three years in jail. Sexual harassment, which is punishable by up to a year in prison, also includes making sexually tinged remarks.
2. Section 354B
   If a male assaults or uses unlawful force against a woman, or aids or abets such an act with the goal of disrobing or compelling her to remain naked in a public place, he commits an offense under section 354B, which carries a sentence of three to seven years in prison. This section deals with a fairly specific offense, and it complements and adds to the clause dealing with outraging a woman’s modesty. This is a good provision, given the numerous examples of women being stripped in public as a kind of punishment, mostly in impoverished communities, as reported in the news.
3. Section 354C
   Any man who views or takes the image of a woman engaged in a private act in circumstances where she would normally expect not to be viewed either by the perpetrator or by any other person at the perpetrator’s command, and then disseminates such image is guilty. Such a person is liable under Section 354C. A first conviction carries a sentence of imprisonment of not less than one year, but not more than three years, and a fine, while a second or subsequent conviction carries a sentence of imprisonment of either description for a term of not less than three years, but not more than seven years, and a fine.
4. Section 354D
   Under this new section, stalking has been designated as a specific offense. If a male stalks a woman, he could face a sentence of up to three years in jail for the first offense and up to five years for consecutive offenses. However, there are some exceptions, such as if a person can establish that the actions were taken in accordance with the law, were reasonable, or were necessary to avoid a crime. According to Section 354D, the crime of stalking was a gender-neutral offense, meaning that it may be committed by either a man or a woman.
5. Section 375
   Under the new section, a man is considered to have committed rape if:
   (a) Penetration of penis into vagina, urethra, mouth, or anus of any person, or making any other person do so with him or any other person;
   (b) Insertion of any object or any body part, not being a penis, into the vagina, urethra, mouth, or anus of any person, or making any other person do so with him or any other person;
   (c) Possession of any bodily part with the intent of inducing penetration of the vagina, urethra, mouth, anus, or any other body part of the individual, or compelling the subject to do so with him or another individual.
   (d) Applying the mouth to a woman’s penis, vagina, anus, or urethra, or causing another person to do so with him or another person.;
   (e) Ultimately, contact the vagina, penis, anus, or bosom of the individual or makes the individual touch the vagina, penis, anus, or bosom of that individual or some other individual.

The 2013 Act expands the meaning of rape to incorporate oral sex and the inclusion of a thing or other real part into a lady’s vagina, urethra, or anus. Rape carries a minimum sentence of seven years in jail and a maximum sentence of life in prison. If a police officer, medical officer, army member, jail officer, public officer, or public servant commits rape, he faces a minimum sentence of ten years in prison. If the victim dies or goes into a vegetative state as a result of the rape, the victim is sentenced to life in prison, with the possibility of death. Under the newly revised provisions, gang rape now carries a minimum sentence of 20 years in prison.

The new amendment clarifies that “consent” is an unequivocal agreement to engage in a specific sexual act; it also clarifies that “consent” does not entail “no resistance.” Non-consent is a crucial component in the commission of rape. As a result, the notion of consent is crucial to the outcome of a rape trial, and it has been used to humiliate and discredit rape victims.⁴

Need for Criminal Amendment Act

According to research by the “Thomson Reuters Foundation,” sexual violence, human trafficking, child labor, underage marriage, and female foeticide make India the most dangerous country for women. In 2012, the National Record Crime Bureau (NRCB) documented 24,923 rape crimes across India, according to its annual report for the year 2013. The culprit was discovered to be a relative of the victim in 98 percent of the cases. Assault has a very low per capita rate and, as a rule, it goes unreported. However, rape instances such as the Kathua rape case and the Unnao rape case sparked considerable public resentment. And a sense of censure leads to media attention and public protests in the name of justice. As a result of the increased willingness to disclose rape incidents, the Indian government has made revisions to the current penal legislation. As a result, the Criminal Amendment Act was absolutely necessary.⁵

Criminal Law (Amendment) Act, 2018

On July 23, 2018, the Ministry of Law and Justice introduced the Criminal Law Amendment Bill 2018, which was passed by the Lok Sabha and Rajya Sabha on July 30 and August 6, respectively. This law attempts to address the problems of sexual assault victims and to enforce the death sentence for anyone convicted of raping a girl under the age of 16 or 12.⁶ It repealed the President of India’s April ordinance and made changes to the following laws:

• IPC 1860
• CrPC 1973
• Evidence Act 1872
• Protection of Child from Sexual Offences (POCSO) 2012

Salient Feature of the Act

This Act makes significant reforms to our penal laws to protect girls from the horrible crime of rape. The following are the details⁷:

• Rape offenders must serve at least ten years in prison; formerly, the minimum sentence was seven years.
• Anyone who rapes a girl under the age of 16 will be sentenced to a minimum of 20 years in prison.
• If a person rapes a girl under the age of 12, he or she will be sentenced to a minimum of 20 years in jail, a maximum of life in prison, or the death penalty.
• If the rape crime is committed against a girl under the age of 16, the accused will not be given anticipatory bail.
• Convicted persons are required to pay the victim, with the funds going toward the victim’s medical expenses and rehabilitation. And the remuneration will be fair and equitable.
• If a police officer commits rape, he or she will be sentenced to a minimum of 10 years in jail, regardless of where the crime takes place.
• In the case of rape, the police are required to conclude the investigation within two months of the FIR being filed.
• After 6 months, the deadline to dispose of the rape appeal begins.
• The law stipulates that anyone guilty of gang rape of a woman under the age of 16 will be sentenced to life in prison and fined.
• Anyone convicted of gang rape of women under the age of 12 faces a sentence of life in prison, a fine, or the death penalty if they are under the age of 12.

Amendments made in IPC

Inserted Sections

I. Section 376AB

• This section was inserted just after Section 376A and states that anyone who commits rape with a woman under the age of 12 years shall be punished with rigorous imprisonment for a term of not less than 20 years, and it may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or death penalty.
• Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
• Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

II. Section 376DA

• After Section 370D, the 376DA section was added, which states that if a woman under the age of sixteen is raped by one or more people in a group or does something for a common purpose, each of those people is deemed to have committed the crime of rape and shall be punished with life imprisonment, which implies that what he has done is completely illegal and off-base, or in a legal sense, a reminder for that person’s natural life. A
• Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
• Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

III. Section 376DB

• This section states that if a woman under the age of 12 years is raped by one or more people acting in concert for a common purpose, each person is deemed to have committed the crime of rape and is punished with life imprisonment, which implies that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or death penalty.
• Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
• Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

Amended Sections

I. Section 166A
This provision comprises three clauses that deal with public servants violating lawful orders. Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB are substituted for clause (c).

II. Section 228A
Subsection (1) of this section was replaced with Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB, which deal with the disclosure of the identity of the victim of certain crimes.

III. Section 376
This section deals with the rape penalty and sub-section 1 was replaced with “anyone commits an offence of rape shall be punished for a term not less than ten years or which may extend to life imprisonment and with fine.”
Subsection 2 clause (a) sub-section 1 has been repealed as a result of this alteration to section 376. After sub-section 2 of section 376, a new sub-section “3” was added, which states that anyone who commits rape with a woman under the age of sixteen years shall be punished with rigorous imprisonment for a term not less than 20 years, and may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or detention.

Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation. After sub-section 2 of section 376, a new sub-section “3” was added, which states that anyone who commits rape with a woman under the age of sixteen years shall be punished with rigorous imprisonment for a term not less than 20 years, and may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or detention.

Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation. Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

Amendments made in the Indian Evidence Act, 1872

Two sections of the Indian Evidence Act of 1872 are amended by the Criminal Amendment Act of 2018. The following are some of them:

A. Section 53A

• This section substitutes Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB, which deal with proof of character or previous sexual experience that isn’t applicable in some circumstances.

B. 146th section

• When a witness is cross-examined, he may be asked any question that tends to answer the question hereinbefore referred to, in addition to the question hereinbefore referred to-
  a) Attempt to verify the validity.
  b) To figure out who he is and where he stands in life.
  c) To protect his reputation, harming his character, even if the answer does not directly or indirectly implicate him, could result in a penalty or forfeiture.
• 376AB, 376B, 376C, 376D, 376DA, and 376DB were substituted by section 376AB, 376B, 376C, 376D, 376DA, and 376DB.

Amendments made in CrPC

1. Section 173
   Subsection (1A) of this section was amended to read: “An offense under section 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code shall be completed within two months.”
2. Section 374
   When an appeal is filed against a sentence given under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, or Section 376E of the Indian penal code, the appeal shall be disposed of within six months of the date of filing.
3. Section 377
   When an appeal is filed against a sentence given under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, or section 376E of the Indian penal code, the appeal shall be disposed of within six months of the date of filing.
4. Section 438
   After sub-section (3), a new sub-section (4) was added to Section 438 of the Code of Criminal Procedure, which states that nothing in this section applies to any case involving the arrest of a person on suspicion of having committed an offense under subsection (3) of Section 376, 376AB, 376DA, or 376DB of the Indian penal code.
5. Section 439
   After sub-section (a) (1), another provision was added to Section 439 of the CrPC, which states that “the high court and the session court shall, before granting bail to a person accused of an offense triable under sub-section (3) of Sections 376, 376AB, 376DA, 376DB, give notice of the applicant for bail to the public prosecutor within a period of 15 days from the date of receipt of such notice to the public prosecutor.” The presence of the informant or any person authorized by him is necessary during the hearing of the application for bail to the person under sub-section (3) of sections 376, 376A, 376DA, and 376DB, which was inserted after sub-section (1) of the CrPC.

Amendments made in POSCO Act

Section 42 of the POCSO Act, 2012 has been amended by the Criminal Amendment Act of 2018. Sections 376A, 376C, and 376D of the Indian penal code have been replaced with 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB of the Indian penal code.

Conclusion

In the wake of checking on various adjustments and recently remembered Sections for the IPC, CrPC, Indian Evidence Act, and POCSO Act, as may be obvious, the criminal amendment demonstration of 2018 is simply planned to safeguard women from offensive wrongdoing: sexual attack. As the unjust pace of sexual attacks has expanded, so has the number of people who are truly cruel. Most of the assault cases go unreported, and the absence of legitimate legitimacy, as well as cultural elements, make boundaries to the casualty’s admittance to justice. Nonetheless, subsequent to rolling out important improvements to these reformatory laws, the Government of India tries to give government assistance and a feeling of safety for all women, as it is essential considering ongoing cases, for example, the Kathua assault and Unnao assault cases, which have caused a lamentable circumstance for women in which women accept they are undependable even in their own homes, as the blamed is quite often a family member or a known individual of the person in question, so there is an outright need.

References:

1. https://www.legalserviceindia.com/legal/article-1527–an-analysis-of-criminal-law-amendment-act-2018.html
2. https://blog.ipleaders.in/comparison-rape-laws-criminal-amendment-act-2013/
3. https://www.lawctopus.com/academike/criminal-law-amendment/
4. https://prsindia.org/billtrack/the-criminal-law-amendment-bill-2013
5. https://blog.ipleaders.in/criminal-law-amendment-act-2018-2/
6. https://prsindia.org/billtrack/the-criminal-law-amendment-bill-2018#:~:text=In%20March%202013%2C%20Parliament%20passed,in%20cases%20of%20repeat%20offenders
7. https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf

This article is written by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

Gender diversity widens the range of skills and backgrounds available to handle specific legal difficulties in any professional situation. Diversity serves a greater function in the legal profession: it lends legitimacy to the impression that the law system is equal and just, and that everyone’s views are represented and acknowledged within it.

INTRODUCTION

Lawyers (also known as advocates, barristers, attorneys, solicitors, or legal counselors), paralegals, legal scholars (including feminist legal theorists), prosecutors (also known as Crown Prosecutors or District Attorneys), judges, law professors, and law school deans are among the women who work in the legal profession.

In recent years, the importance of women in professional fields has been emphasized in order for the economy and society to reach their full potential. Gender equality became a standard for development and prosperity around the world. Women have shown themselves and are leading the way in their drive for financial independence, equal rights, and opportunity in a variety of sectors.

In India, an increasing number of women are graduating with a law degree, despite the fact that few appear to pursue the field after a short – term at a law firm. Many women leave the field because of gender prejudice and seek work in fields that are more tolerant of women. Nonetheless, there are success stories in the country’s legal profession, where women have indeed been tenacious and stubborn in attaining their goals and becoming respected professionals despite all odds.

INDIA

In India, men have long dominated the legal profession. Women’s admittance into the courts was only possible after long and drawn-out legal fights, but even then, female participation in the courts was minor until the late twentieth century. However, in the twenty-first century, the concept of globalization has created greater chances for Indian women in law education and training. Modernism has also tempered the courtroom environment but has also put a stop to medieval masculine chauvinism in the field.

In independent India, the Indian Constitution guaranteed citizens the right to equality including protection from discrimination based on gender in getting an education or practicing whatever career of their choosing. Despite this privilege, the legal profession has not become a common choice for women, primarily because women must have a basic degree of education in order to be informed of these rights. And for a female population that was largely illiterate due to a variety of factors including poverty, restrictive social customs, strict caste restrictions, cultural practices prohibiting women from working outside their homes, and so on, higher education and pursuing a profession were dreams that the Independence era had managed to ignite, even if only in the shape of an awareness of being a downtrodden and suppressed part of the society largely contributing to the country’s development. Interestingly, in Western nations where the journey and naval enterprise had brought about tremendous change in housing conditions, in which feminism and modern feminist movements were started by educated women, and which nations had such a literate female population, at the very least, women entered the legal profession in 1917. By the 1860s, the British had created schools, colleges, even universities for women in India, but many women couldn’t even imagine going to school or graduating until the 1920s. Though a few fortunate educated women, including doctors and authors, earned notoriety in the feminist movements of the time, it is clear that they faced a new foe in the European and British feminists that opted to define and, by definition, silence them. It became critical for them (educated Indian women, that is) to understand how and where to empower themselves in order to prevent continued oppression.

PROGRESS

As a result, the women of India set out to cross a gulf that was bigger than that which their western counterparts had set out to cross. In such a diversified country like India, the arduous process of expanding literacy and raising awareness of women’s rights took a solid twenty years. Meanwhile, even the Indian judiciary was proactive in encouraging women to enter the legal profession, appointing the very first woman judge to the Kerala High Court, Hon’ble Justice Anna Chandy. Justice Anna Chandy began her legal career as an advocate in 1929 and was promoted to Munsiff in 1937, making her the very first woman judge in pre-independence India.

During these two decades, two distinguished lawyers, Hon’ble Justice Fathima Beevi Honble and Hon’ble Justice Leila Seth, joined the legal profession and went on to become Chief Justices of the Himachal Pradesh and Kerala High Courts, respectively. For more than 15 years, the first had been an active practicing lawyer in the Delhi, Kolkata, and Patna High Courts, while the latter had climbed from the post of Munsiff to eventually retire as a Supreme Court Judge. Surprisingly, women’s representation in the judiciary has not increased significantly compared to the original number of female judges. The situation has deteriorated to the point where a demand for a 33 percent reservation for women in the judicial system has been made in order to achieve parity in the number of male and female judges.

WOMEN IN LAW

Journalism, academia, and medicine were among the first occupations to be influenced by feminism. In later years, feminism began to have an impact on professions previously controlled by men, such as surgery, civil service, law, management, entrepreneurship, and politics.

In recent years, every family, especially those from the orthodox, backward, and traditional sectors, has been under severe economic strain. The battle is no longer focused on external challenges. In addition, public opinion is no longer antagonistic, and women now have a plethora of options. Psychological issues and the tussle between family and job, on the other hand, persist throughout their lives.

Women’s admittance into and increasing participation in the legal industry has become one of the most notable societal transformations in recent times, often referred to as “revolutionary. This inflow of women has sparked a lot of discussion among scholars and political activists concerning the changes that women will bring to the structure and management of substantive law, and also the manner law is practiced. India was a British colony until 1947, and the British modified the administrative structure and organizations as they saw fit. The Indian Penal Code (IPC), the Criminal Penal Code (Cr PC), and the Civil Procedure Code (CPC), as well as the foundation of the Rule of Law and the Indian Civil Services, are just a few examples.

For the first time in India, Dr. Hari Sigh Gaur, a pioneer in the struggle for women’s admittance into the legal profession, moved the following amendment to the Central Legislative Assembly of India’s resolution to abolish the sex disqualification against women.

REPRESENTATION NEEDED

Women are increasingly represented in the legal profession around the world, but their success varies greatly by culture and country.

Women began to flood into the legal industry globally in the 2000s, per a 2013 report of 86 countries (covering 80% of the world’s population). Women’s representation in the law is lowest in India and China, while it is highest in the former Soviet Bloc countries, Latin America, and Europe.

According to the survey, 52 countries had greater than 30% representation among employed lawyers, which is considered a significant societal shift. Venezuela and Uruguay were early adopters, exceeding the threshold in the early 1980s. Women made up at least 50% of lawyers in Bulgaria, Latvia, Poland, and Romania by the mid-to-late 2000s—some of the greatest participation in the world—while Denmark, Norway, the United States, and Germany, were latecomers, crossing the 30% threshold at the same time. Meanwhile, the world’s two biggest countries are among the slowest to incorporate women: India has a 5% female representation in the practice of law, while China has a 20% female representation.

In 2021, CJI Ramana confessed that the legal profession has yet to accept women into its fold, as the bulk of them struggle inside the profession, during a valedictory ceremony sorted by the Bar Council of India (BCI).
“Following 75 years of freedom, one would expect to see at least 50% female representation at any and all levels, but I’m afraid I have to say that we’ve only managed to get to 11% female representation on the Supreme Court bench. Because of the reserve policy, some states may have a higher representation. However, the reality is that the law must continue to embrace women into its ranks “The Chief Justice stated.

Many law companies are also biased against women for the same reasons: she may take time off to raise a family, she cannot be entrusted with “serious” briefs, and if she requires a while off to start families, she is perceived as less capable and devoted. When a woman re-enters the workforce, she is frequently at a disadvantage.

Increasing women judges don’t really inevitably contribute to better results for women’s causes, according to a feminist judgment study conducted in the United Kingdom in 2010. However, if the judge has been a feminist, the story would be different, and the outcome would be different in many circumstances. As a result, India requires not only more female judges but also more gender-sensitive judges.

Women are likewise pressured to do better than their male counterparts, and women lawyers or judges who struggle to get their views heard are frequently referred to as aggressive. However, in male legal practitioners, this feature is viewed as a strength. Then there’s the issue of workplace harassment, which is mostly unaddressed. Because of the opaque character of our higher judiciary, this type of intimidation and harassment is widely overlooked. While arguing cases, there have been countless incidents of women lawyers being verbally harassed by their male peers. There are some states, like Uttarakhand, Chhattisgarh, and Himachal Pradesh, that do not even have a single woman judge in the high courts. Only approximately 15% of the 1.7 million advocates registered with the bar councils are women.

CONCLUSION

The Indian legal system is indeed not the same as before a decade ago, and the numerous developments occurring inside it as a result of technological advancements and changes in working styles would necessitate a period of absorption before further advancements can be recognized. Developing e-courts in India would growth improve the justice delivery method, and the ease of being willing to debate online from the Advocate’s office may entice Indian women advocates to begin practicing or teaching over the internet. The desire to become a judge continues to entice Advocates and lawyers, however, the number of female Justices has not grown in comparison to male Judges throughout the years.

Women in the practice of law, on the other hand, must be more active. They should get together to address workplace challenges of gender discrimination. There are many female lawyers who may lead such organizations, and while numbers alone may not be enough to make a difference, there is power in numbers. Several gender-friendly adjustments to the law have been enacted in recent years by the courts. However, it must now look internally and embrace the gender disparities in the profession, as well as the fact that as a result, it’s really clearly losing the expertise of many outstanding women.

This article is written by Tingjin Marak, a BA/LLB student at Ajeenkya DY Patil University Pune.

All individuals who have been a victim of crime have had themselves and their families affected, significantly making monetary misfortunes to the people in question. And the effect of these crimes and wrongdoings on the people in question and their families goes from genuine physical and mental wounds to perpetual aggravations. These consequences should immediately be changed and adhered to by giving care and attention to those affected through several measures and laws, giving them simple admittance to equity. Even if they have observed help and help from their family, clan, or the local area, they have, all things considered, stayed “failed to be a remembered individual” in the criminal justice administration system.

DEFINITION OF VICTIM

Within the Indian legal framework, the term victim is defined under Section 2(wa) of the CrPC, 1973 as ‘individual who has endured hurt, either physical or mental injury, torment, financial misfortune or infringement of their freedom, through acts or oversights viewed as violative of Indian criminal regulations including those regulations that endorse criminal maltreatment of influence’. The U.N Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, on 29 November 1985 gave an extensive definition to the victim ‘as a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions that are in violations of criminal laws operative within member states, including those laws proscribing criminal abuse of power’.

INDIA’S CRIMINAL JUSTICE ADMINISTRATION SYSTEM

The law enforcement framework which India has adopted stems from what the British called the ‘adversarial legal system’. The working of the Indian law enforcement framework relies upon the four support points and these four points of support are police, prosecution, judiciary, and the correctional institutions. For fair and speedy outcomes, these four points of support need to work actually by coordinating one another. The two primary criminal laws of India are the Indian Penal Code, 1860 which characterizes the offense and gives its discipline and the other is Code of Criminal Procedure, 1973 which recommends the technique for examination, indictment, and a criminal preliminary. The middle has the ability to make regulations and change criminal regulations under the Seventh Schedule of the Indian Constitution. However, it is mostly catered to the rights of the accused and altogether ignores that of the victim in the delivery of justice.

DIFFERENCE BETWEEN THE RIGHTS OF THE ACCUSED AND THE VICTIM

There seems to be a mismatch when it comes to the protection of the accused and the victim. If anything, it appears that the Indian Criminal Justice System has more rights reserved for the accused. This includes different privileges, safeguards, and shields given by the Code of Criminal Procedural Law like the right against self-incrimination, the presumption of innocence, the right to legal assistance, and the others like the ‘right to fair trial’ such as the standard of proof beyond a reasonable doubt, right of the accused to be informed of charges before the trial and the right to a lawyer and be defended, etc. Even the accused is heavily guarded under Articles 20, 21, and 22 of the Constitution.

Thus, it has been said many times that the victim’s role is merely reduced to being a ‘witness’ and has limited rights during criminal proceedings. A case example can be Parvinder Kansal vs State of NCT of Delhi (2020), where the father of the deceased son gave an appeal to enhance the imprisonment sentence of the accused but it was denied on the ground that the victim does not have such right to do so regarding the present provisions in the CRPC. Prior to this, there were recommendations given by the Malimath Committee and the Law Commission, where the legislature inserted a provision in section 372 of the Code through the Amendment Act of 2008 to provide victims their right of appeal and again the National Commission of Women to seek enhancement of appeals.

RIGHTS FOR THE VICTIMS

The definition of the victim provided under the CRPC proves to be insufficient and restricted comparatively to one given by the UN Declaration adopted by the General Assembly. The rights defined for the victim under this includes access to justice and fair treatment, Compensation, Victim’s assistance inter alia, for countries to have a guideline to trace. But India’s system has barely been touching these minimal standards and norms.

It was after many studies about whether victims who have been compensated were satisfied or not like in cases of gang robbers, motor accidents, etc. Issues regarding women victim issues led to mobilizations and protests in the past years resulting in amendments and numerous organizations being formed and introduced like protection of women against acid attacks (Sec. 326A20 and 326B21), voyeurism (Sec. 345C), stalking (Sec. 345D) and sexual harassment (Sec. 345A), and expanded the definition of rape (Sec. 375) under the Indian Penal Code as an addition to the existing
the victim’s right to compensation.

CONCLUSION

Considering the fact that India follows a Common Law system where it is subjected to transformations based on the context and case situations, it is not surprising to determine that the accused is sometimes labeled as a ‘victim’, therefore multiple rights are conferred to them. Keeping that aside, the scenario of the accused having more rights than the victim itself should not be ignored where the system should give importance, if not more to the victim.

However, it is important that the system comes up with different acts and comprehensive plans and programs to cater to the needs of the victim. This can be done through emotional and financial assistance. The support points of law enforcement which are the police, lawyers and prosecutors, NGOs, etc. should be effective in their field of work and correct the flaw of delay. Corresponding to commendable actions taken by the system sometimes, more distributions should be made to the study of ‘victimology’ for expansion so that further steps can be ventured into protecting
the victims.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.