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Separation of Powers: UK, USA, and India

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Introduction 

“If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive”

– Charles de Montesquieu

History has repeatedly shown that unlimited power in the hands of one person or group of persons, in most instances, means suppressing others or weakening their power. The separation of powers in a democracy should prevent the abuse of powers and protect individual’s liberty.

Thus, in order to stabilize a political system, the holders of power ought to be balanced off against every other. The principle of the separation of powers deals with the relationship between the three important organs of the government, namely the Legislative, Executive, and Judiciary. The doctrine aims for a strict demarcation of power between the three organs. It signifies the very fact that one person or body of persons mustn’t exercise all the three powers of government. 

For the smooth functioning of a democratic system, it is essential to avoid any conflict among the three vital organs of the government. Liberty of an individual would be guaranteed only when there exists a system of separation of powers among the three organs of the government, viz. Legislative, Executive, and Judiciary. A further system of checks and balances is highly needed to ensure the liberty of the individual. But in a rigid sense, it is impossible and, in a check and balance form it is quite possible which makes filtration of the arbitrariness of the powers of others as because if any organ gets the three powers in hand definitely it becomes absolute and despotic which does cause the hardship of the individuals in a country and the idea of democratic value and constitutionalism would be jeopardized. 

However, the doctrine has undergone significant changes over time with the changing needs of society. This can be deduced through a comparative analysis of the interrelationship among the organs of the government in countries like India, the U.S.A., and the U.K. The doctrine has evolved from being construed in its rigid sense to being perceptive of the interdependence of these organs. In this sense, the doctrine of separation of powers has assumed a different character which can be construed as a system of checks and balances. However, the inherent significance of the doctrine remains intact. Even though the classical conception of the doctrine cannot be applied to the modern world, the essence of the doctrine pertaining to the dispersal of central authority to prevent autocracy holds relevance even today.

Origin: 

The doctrine of separation of powers has its origins in ancient and medieval theories of mixed government, which stated that the governance process should involve various elements of society such as monarchical, aristocratic, and democratic interests. This doctrine was first laid down by a French political philosopher Montesquieu in De l’esprit des Lois (1748, Spirit of the Laws). Although an English philosopher John Locke previously advocated that the legislative power should be distributed between the king and the parliament, his writings were very influential, especially in the United States, where it had a major impact on the formulation of the US Constitution.

The Doctrine of Separation of Powers:

The theory of the separation of powers implies three expressions of the structural separation of powers, which are based on the following basic principles:

  1. The same organ should not form part of more than one of the three organs of the government. 
  2. These organs must not interfere with the work of any other organ of the government.
  3. One organ of the government should not perform the functions assigned to any other organ.

In short, the separation of powers simply means that each of the three government departments should be governed by different people, and none of them should control other departments. This separation is important for personal freedom and a safeguard against tyranny.

The doctrine calls on the executive and administrative branches not to interfere with law and justice to protect individual freedom in society; each branch has its own power, and usually, one branch cannot exercise the power of any other branch. The legislature exercises the law-making power, the executive executes the laws and regulations, and the judiciary exercises the power of judicial review.

Doctrine of Checks and Balance:

The separation of the three powers is the constitutional law doctrine of the separation of the three branches of the government (executive, legislative and judicial). It involves a complex system of checks and balances under which each branch is given certain powers so as to check and balance the other branches. This means that the executive department has certain control power over the legislative and judicial departments; legislative power over the executive and judicial departments; and judicial power over the executive and legislative departments. This method of blocking the power of another branch will become an antidote to tyranny.

Constitutional status of the Doctrine In Different Countries:

Separation of Power in India

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, Executive powers are with the President, Legislative powers with the Parliament, and Judicial powers with the Judiciary i.e., Supreme Court, High Courts, and Subordinate Courts.

The Parliament has the power to subject any law to the provisions of the Constitution, and its legislative power is not restricted. The powers and functions of the President are contained in the Constitution itself (Articles 62-72). The judiciary is independent in its field, and its judicial functions are not hindered by the legislature or the executive. Thus, many jurists believe that the doctrine of separation of power is accepted in India. 

However, if we take a closer look at the provisions of the Indian Constitution, we will find that India does not recognize the doctrine of the separation of powers in an absolute and strict sense. There is personnel overlapping along with the functional overlapping. If any law enacted by the legislature violates the basic structure of the Constitution, the Supreme Court can invalidate it. The executive branch also influences the operation of the judiciary by appointing chief justices and judges. Such overlapping may be observed in many other provisions of the Constitution.

Decisions of courts with respect to Separation of Powers in India:

The first predominant judgment in relation to the Doctrine of separation of power was given in Ram Jawaya v. state of Punjab by the Supreme Court of India. In the aforementioned case, the court held that the principle of separation of powers in India is not effective in its strict form, but in a broader sense, which can be derived from the Indian Constitution. It also held that the only validity of the doctrine in the Indian Constitution is the separation of functions of the organs of the government. There are frequent overlaps in the functions and membership in the three organs.

A more clarified view taken in Ram Jawaya’s case can be found in Katar Singh v. the State of Punjab, in which Ramaswamy J. stated, 

“It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the Legislature to make the law, the Executive to implement the law and the Judiciary to interpret the law within the limits set down by the Constitution.”

The Parliament additionally undertakes a few judicial features that are in violation of the Doctrine of Separation of Power, if it is looked at in the rigid sense. It should be noted that these judicial functions performed by the legislature have been enshrined in the Indian Constitution. According to Article 61, the legislature also acts as a judicial organ in the impeachment process of the president.

The issue that whether the legislature can undertake judicial functions was addressed in the case of Indira Nehru Gandhi v. Raj Narain wherein two conditions were laid down for the legislature to fulfill when it is performing judicial functions.

  1. The power should be expressly provided to the parliament, and 
  2. The due process of law during discharging the function ought to be upheld.

Coming to the Executive department, though the separation of the executive from the judiciary has been provided, an intensive reading through the provisions of the Indian Constitution makes it clear that the President can exercise the functions of both Legislature and Judiciary in some specific circumstances. Referring to the legislative power, the Constitution of India has expressly provided this power to the President in Article 123 and that to the Governor under Article 213. This power to promulgate laws can be exercised by the executive when the parliament is not in session or when an emergency is proclaimed.

The executive can also exercise legislative powers through delegated legislation. The rule regarding delegated legislation and its applicability was decided in the Re Delhi Laws Act case where it was held that due to the very reason that the Constitution had expressly provided for the legislative procedure and entrusted it with the parliament, the makers had given a trust to the legislative department that the law-making function would be carried by them alone. However, this extends only to essential legislative functions and these cannot be delegated. Other ancillary law-making functions can be delegated by the legislatures. With regard to performing judicial functions by the Executive, it is well established that tribunals and quasi-judicial bodies that are executives perform functions of interpreting the laws.

There exists a certain degree of overlap with regard to the legislative and executive powers which is, in certain circumstances, assumed by the judiciary.  Article 141 and 142 provide power to the Supreme Court of India to make laws or pass a decree to ensure complete justice for the people which is fundamentally the function of the legislature and executive departments.

If we talk about the amending power of the Parliament under Article 368, it has been subject to the concept of the Basic Structure held in the case of Kesavnanda Bharati v, State of Kerala. In this case, Supreme Court was of the view that amending the power of the parliament was subject to the Basic Structure of the Constitution. It was held that the Parliament couldn’t amend the provision in such a way that violates the Basic Structure. And if it is made in violation of Basic Structure then such amendment will be declared as unconstitutional and void by the judiciary.

Thus, India has adopted the doctrine of separation of powers not in an absolute rigid sense but with the system of checks and balances. Apart from checks and balances, there are some personnel as well as functional overlapping in order to protect the rights and liberty of an individual.

Separation of Power in the U.S.A.

In theory, the United States insists on the absolute rigid separation of powers, but in practice, this principle is combined with the principle of checks and balances to ensure effective and efficient governance. The U.S. Constitution clearly defines three government departments and the functions performed by each department.

  • Article I – Section 1 of the American Constitution states that –

  “All the legislative powers are vested in Congress.”

  • Article II – Section 1 of the American Constitution states that –

  “All the executive powers are vested in the President.”

  • Article III – Section 1 of the American Constitution states that –

  “All the judicial powers are vested in the federal courts and the Supreme Court.”

On the basis of the Doctrine of Separation of Powers, the Supreme Court was not given the power to decide political questions so that there was no interference in the exercise of the power of the executive branch of government. Also, overriding power of judicial review was not given to the Supreme Court. The President interferes with the exercise of powers through his veto power and exercises the law-making power through his treaty-making power. He also interferes in the functioning of the Supreme Court by appointing judges.

In a landmark case of Marbury v. Madison, for the first time, Supreme Court declared something “unconstitutional”, and established the concept of judicial review in the U.S.A. This landmark decision helped define the system of checks and balances and laid the foundation for the United States to exercise judicial review in accordance with Article III of the Constitution. 

Separation of Power in the U.K.

In Britain, there is a parliamentary form of government, wherein the king is the nominal head, and the actual legislative functions are performed by the parliament. Although the king is the chief executive, he is also an integral part of the legislature, and all his ministers are also members of specific houses of the parliaments.

  • Parliament – Legislature
  • Prime Minister, Cabinet, Government Departments and Civil Service – Executive
  • Courts – Judiciary


The Lord Chancellor is head of the judiciary, Chairman of the Legislature (House of Commons), a member of the executive, and frequently a member of the cabinet. Therefore, the House of Commons eventually controls the Legislature. The Judiciary is unbiased; however, the judges of the higher courts may be eliminated on recommendation from each of the Houses of Parliament. Therefore, the resting of powers in a single institution thus denies the certainty that there may be any type of Separation of Powers in Britain.

Britain has the concept of separation of powers, but it is not in a formal sense like in the United States. The three branches are not officially separated, but there is still a large overlapping as in India. In numerous cases, senior judges have held that the U.K. Constitution is based on the doctrine of separation of powers. As in Duport Steels Ltd. v. Sirs (1980), Lord Diplock it was aptly stated that: 

“At a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the Separation of Powers; Parliament makes the laws, the judiciary interprets them”.

Therefore, U.K. has a weak separation of power which implies that the doctrine of Separation of Power is implemented in a broad sense as a result of which the functions of all three organs overlap with one another and conjointly work together.

Criticism:

Every doctrine has its consequences and shortcomings. In theory, the doctrine of separation of powers may be ideal, but it cannot be completely applied in the actual functions of any organization. There are certain shortcomings and limitations.

  1. The doctrine of the separation of powers is anti-historical because it has never been applied in the UK. Montesquieu formulated and defended this theory and believed that it was valid in England. The British Constitution has never been based on the principle of separation of powers.
  2. Montesquieu, who put forward this theory, tried to protect individual’s freedom, which was impossible due to the strict demarcation of powers.
  3. The government is a single unit. Its three organs can never be fully divided. The legislative, executive and judicial functions are symbiotic and inter-related functions and thus, cannot be fully separated. A smooth and stable government can only exist when there is cooperation among the three organs. Therefore, separating these organs into sealed compartments may lead to failure and inefficiency in the government.
  4. In the current times, a government works for the welfare and prosperity of the people. It has to solve the complicated issues of society. In such circumstances, the precept of separation of powers appears to be impossible. The imposition of this doctrine in its rigid form will now no longer cause the effectuation of the goals of the modern government. Thus, separation of powers is theoretically uncertain and realistically almost impossible.
  5. If the doctrine of separation of powers is rigidly adopted then there will be no flexibility in functioning of the organs of the government. If the legislature can only legislate, then it cannot penalize anyone, committing a breach of its privilege; nor can it delegate any legislative function even though it does not know the details of the subject-matter of the legislation and the executive authority has expertise over it; nor could the courts frame rules of procedure to be adopted by them for the disposal of cases. Separation of Powers thus can only be relative and not absolute. Modern State is a welfare State and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to this doctrine rigidly.

  Conclusion: 

“Power corrupts and absolute power tends to corrupt absolutely”.

  • Lord Acton

Granting power to a single body can lead to absolutism, but even after the separation of functions, if the organs exercise public power, granting absolute and sole authority within its sphere of influence may lead to abuse. Therefore, the theory of the separation of powers is a theoretical concept, and it is almost impossible to follow it completely.

Exercising the doctrine of separation power cannot be applied in the strict sense in any contemporary countries like The United States, India, U.K., etc. But still, this doctrine has relevance today. Our government is an organized system and it is very difficult to divide into watertight compartments.

The theory of separation of power in its strict sense does not apply to any modern country, such as the United States, India, and the United Kingdom. But this theory still applies today. Our government is an organized system and it is difficult to divide the powers of the organs into sealed compartments.

For the smooth functioning of any government, cooperation and coordination among all three organs of the government is essential. Professor Garner said that “this doctrine is impracticable as working principle of Government. It is difficult to divide the functions of each organ on an accurate basis”.

In my opinion, this doctrine is very important because it protects the rights and freedoms of individuals from arbitrariness and does not allow organs to usurp the essential functions of other organs; to some extent, it is applicable in almost all countries.

Therefore, after considering all the aspects it can be concluded that the doctrine of separation of power is not accepted in any country in its absolute rigid form. If we compare the Indian and American Constitution, it can be said that on the first glance that both the Constitutions have adopted the Doctrine of Separation of Power but after an intensive reading through their provisions, it can be said that the doctrine has not been rigidly accepted in both the countries.

The doctrine of separation of powers must be expounded relatively. In the era of liberalization, privatization, and globalization, separation of power has to be viewed from a broader perspective. It should not be limited to the principle of strict classification but also exercise collective power in the spirit of cooperation, coordination, and protection of individual rights and freedom.

Though this doctrine is impractical in its rigid form nevertheless its effectiveness lies in the prominence of those checks and balances which are necessary so as to prevent maladroit government and abuse of powers by the different organs of the government. In brief, we can say that the Doctrine of Separation Powers; is followed in the US with a spirit, never followed in the UK purely, and India has followed it with large exceptions.

References:

  • blog.ipleaders.in
  • papers.ssrn.com
  • www.legalservicesindia.com
  • www.britannica.com
  • http://www.lawctopus.com/
  • www.indiankanoon.com
  • Ram Jawaya v. state of Punjab, AIR 1955 SC 549
  • Kartar Singh v state of Punjab, (1994) 3 SCC 569
  • Duport Steels Ltd. v. Sirs, 1980 1 ALL ER 529
  • Indira Nehru Gandhi v. Raj Narain, 1975 AIR 1590
  • Re Delhi Laws Act Case, AIR 1951 SC 747
  • Kesavnanda Bharati v, State of Kerela, AIR 1973 SC 1461
  • Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 

This article is written by SAHEBA SHAMS, a 1st-year student pursuing BA-LL. B from Osmania University, Hyderabad.

This article is edited by Shreya Litoria, a 4th-year student pursuing B.Com LLB from Banasthali Vidyapith University, Jaipur.

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Privileges Of Parliament

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Introduction

The concept of parliamentary privileges was taken from the British Constitution. Article 105 and 194 talk about privileges or advantages to the Member of The Parliament. Such provisions are crucial for the democratic functioning of the country. The main motive of these provisions in the constitution is to uphold the supremacy of The Parliament’s office and its members. But the President, who is an integral part of The Parliament, does not have parliamentary privileges. Initially, the constitution of India provides only two parliamentary privileges. In other privileges, they were to be the same as those of the House of Commons on its commencement date ( 26 January 1950 ) until The Parliament defines. The 44th amendment act, 1978 states that the other privileges of each House of Parliament, its members, and its committees are those which we had on the date of commencement ( 20 June 1979) until The Parliament defines.

The main motive of this amendment was to make verbal changes by dropping a direct reference to the British House of Commons. The Parliament has not made any specific law to codify all the privileges till now.    

History of Parliamentary Privileges in India

The Government of India Act of 1919 takes the first step to regulate parliamentary privileges in the country. The act provided limited Privileges to legislators in India. Freedom of speech for the members of the central legislature under the act. Freedom with so many limitations. Neither were any punitive powers conferred on the legislators nor was Freedom from Arrest provided. The act of 1935 also did not change anything materially. Legislators loudly protested against having no parliamentary privileges. But no attention was paid by the British Government of India. From 1919 to 1947, there was a lot of struggle between Indian legislators and the British Government for parliamentary privileges. But the battle was worth waging. 

 Privileges That Is Provides To Member of House Individually

  • They cannot arrest in civil matters only during the session,40 days before the beginning, and 40 days after the end of the session.
  • They have Freedom of Speech.
  • During the parliament
  • ary session, they can refuse to appear as a witness. And give pieces of evidence in a case that is pending in courts. 
  • House of Parliament

 Provides Privileges Collectively

  • It has the right to publish its debates, reports, and proceedings. Along with it, it also has the right to prohibit others. The 44th amendment allows the press to publish the Report of parliamentary proceedings without prior permission. But in the case of Secret sitting, this amendment is not applicable.
  • It has the right to hold secret sittings to discuss some important matters and can exclude strangers from its proceedings.
  • It can make rules to regulate the conduct of its business and its procedure.
  • It can punish its member for the breach of privileges or its contempt by imprisonment, suspension, expulsion, or reprimand.
  • The court has no right to inquire into the proceedings of a house or its committees.
  • No person can be arrested and no legal process can serve within the boundaries of The Parliament without the permission of the presiding officer.

Breach of Privilege

 When Rights of the House or the members individually are

Ignored or attacked any of the privileges, immunities, is called the Breach of Privilege. Likewise, disobedience to its authority, members, or officers is also punishable as Contempt of the House. Any act or omission that either hinders or obstructs the  House of Parliament in the performance of its functions or hinders any member or officer of such a house in the execution of his duty or which tends to produce such result which is directly or indirectly considered as a Contempt of Parliament.

Landmark Judgments

 In this case, some Members of Parliament take bribes to vote against Prime Minister P.V. Narsimha Rao against a no-confidence motion. Afterward, he was charged under the Prevention of Corruption Act and IPC. The question raised in this case was that under Article 105(2) does any parliament member have any immunity to protect himself in criminal proceedings against him? Thus the court interpreted the “anything” term in the broader sense and did not prosecute P.V. Narsimha Rao and hence dismissed the case.

  • Keshava Singh v. Speaker, Legislative Assembly

In this case, Keshava Singh, a non-legislative member of the assembly, printed and published a pamphlet.  He was criticized for contempt and breach of Privileges by the speaker of the U.P legislative assembly speaker. The same day in the House, Mr. Keshava committed a Breach of Privileges by his conduct. The court held that it does not amount to contempt.

  • Sir John Eliot Case

In this case, the court of King’s Bench convicted Eliot for seditious speeches made in the House of Commons. The House of Lords reversed the decision. Afterward, Bills of Right laid down that the courts or any place outside The Parliament have no right to decide on speeches and debates or proceedings in The Parliament.

  • Tej Kiran Jain and others v. N. Sanjeeva Reddy and others

In this case, plaintiffs were disciples of Jagadguru Shankaracharya. But at the World Hindu Religious Conference, Jagadguru made certain remarks on untouchability. After a discussion takes place in Lok Sabha in which derogatory words are delivered against Jagadguru. His disciples filed a suit against six members. The Supreme Court dismissed the plea by giving reasons. Under Article 105(1), whatever happens in Parliament during sitting or in the course of business was immunized.

Conclusion

As under Article 105(3), The Parliament has powers to codify the privileges. But no laws have been enacted by the Parliament so far. The Judiciary and Legislature must work in cooperation for any democratic constitution. These institutions have an ultimate motive for the smooth functioning of democracy. But the constitutional provisions of the Privileges of Parliament are vague. The easiest way to solve this conflict between Judiciary and Parliament lies in harmonizing the relationship between the two organs by properly codifying the privileges to remove unclear interpretations. 

The article has been written by Megha Patel, a 2nd -year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.

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The Shortcoming of Rape Laws in India and a Need For Change

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The Present article has been written by Gracy Singh, pursuing BA. LL.B.(Hons.)(2nd year) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

INTRODUCTION

India used to believe in the concepts like “Matri Devo Bhava” (the woman is revered to God), and “Yatra naryastu pujyante ramante tatra, Devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah” (Divinity blossom where women are honored, where women have dishonored all actions remain unfruitful). This concept seems to disappear in the present time as the number of sexual offenses against women keeps increasing. One such sexual offense which has become the most common crime in India is Rape. It is the most heinous crime as well as a huge disgrace to humankind. Rape means having sexual intercourse without the consent of another person. 

According to National Crime Records Bureau’s (NCRB), 88 rape cases per day, and 32,033 in the year were reported in India in the year 2019. The list is topped by Rajasthan (6,000 rape cases), and Uttar Pradesh (3,065 rape cases).  These are reported cases there are the majority of crimes against women committed by know people such as family members, friends, and neighbors; whereas in some cases victims are coerced by their families to keep silent. Who should be blamed for this?

LAWS REGARDING RAPE IN INDIA 

  1. India Penal Code, 1860 – 

In the Indian Penal Code, Section 375 states that rape is said to have been committed when a man has sexual intercourse with a woman without her consent or against the free will or obtains consent by force, fear of death, or by making her believe that the person is married to her, during the unsoundness of her mind, or intoxication.

  1. The Criminal Law (Second Amendment), 1983 

In the case, Tukaram v. the State of Maharashtra commonly known as Mathura Rape Case, a girl Mathura aged between 14-16 years, was raped by two police constables. Her family filed a case against two constables. The court said that Mathura did not call out for help and there were no visible marks on her body, so the act was consensual. The court further added that she was habitual to sexual intercourse. 

This case triggered endless violence across the nation; it was observed that the verdict given by the court was not sensible, legitimate, and linguistic. Women started protests demanding modification in the law. 

In 1983, The Criminal Law (Second Amendment) was brought that amended the Indian Evidence Act, Section 114 (A) was added stating that if the victim says that there was no consent, the court shall presume that there was no consent given. Custodial Rape was made punishable, and the character assassination was prohibited of the rape victim in court by this amendment.

  1. Amendment to Indian Evidence Act, 2002 

In 1983, character assassination was prohibited but cross-examination of the rape victim was not defined. An NGO, Sakshi filed a PIL pointing out the humiliation, dishonor of the sexual integrity, and personal space faced by the victims during trials in the court. 

Later, the Supreme Court ordered the Law Commission to review rape laws and to recommend the changes. As per Section 155(4) of the Indian Evidence Act, 2002, a defense lawyer could dishonor the testimony by proving the immoral character of the victim. Therefore, this clause was amended in 2002, and the cross-examination of the victim was prohibited. 

  1. Protection of Children from Sexual Offence Act (POCSO), 2012

As per the statistical data, Indian reported a 336% increase in child rape cases from 2001 to 2011. NCRB statistics showed that 48,338 child cases were reported during this period. This led to an urgent need for a law for child victims of sexual offenses.  It is gender-neutral and includes the abetment of child sexual abuses, sexual harassment, child pornography, and non-penetrative assault. Hence, POCSO (Protection of Children from Sexual Offenses Act) was passed in 2012. This Act made the police in charge to ensure the protection of the child during the investigating process, and provide medical treatment in emergencies. Also, the courts were allowed the conduct the in-camera trial without revealing the true identity of the child. The Act also made it mandatory to report child sexual offense cases.

  1. Criminal Law (Amendment) Act, 2013

In 2012, Mukesh and Anrs. v. NCT Delhi and Ors. a 23-year-old girl was brutally gang-raped in a moving bus, which led to her death. This led to protest in the country, demanding not only amendment in the laws but also the perspective towards rape. It became a women’s rights issue in India. This case also led to reconsider the laws as well as realizing that still there are many crimes against women that are not mentioned in our legal framework such as stalking, voyeurism, acid attacks. 

This led to the Criminal Law (Amendment) Act, 2013, that added stalking, voyeurism, and acid attacks into the definition of rape, a threat to rape is also considered as a crime. The punishment for rape was changed from seven years to ten years, in case of vegetative state or death of the victim, the punishment was increased to 20 years. The age was changed from 18 to 16 to the Juvenile Justice Act for being tried for crimes like murder, and murder since one of the accused in this case was minor.

  1. Criminal Law (Amendment) Ordinance

In 2018, an 8 years old girl was gang-raped and murdered by two men and a juvenile in Kathua, a district in Jammu and Kashmir. This case led to outrage among the masses in the nation. An amendment was brought in POCSO, and made rape punishable of a child below 16 years, as well as the minimum punishment, was made 20 years of imprisonment and death penalty in case of death of a child below the age of 12. The fast-track clause was amended from a year to six months.

PROBLEMS IN THE RAPE LAWS  

  1. Justice delayed, justice denied

In the case of the Delhi Medical student rape case, the fast-track court was set up, and it wrapped up the proceedings of the case within eight months. The convicts were given the death penalty but it took more than seven years to hang them. In 2019, more than 1.66 lakh cases are pending in Fast Track Courts; there will be no final closure even though all the legal formalities are completed and judgment is passed by FTCs. Fast-track justice could instill fear among the people.

  1. Gender Biased

It is time for society to understand and accept that men can also be the victim of trape. The most affected groups by the gender-biased laws are transgender and non-binary persons who more often face abuse and sexual assault. Lawmaker needs to understand that any person can be a victim and a perpetrator. Law should not be amended to claim that both men and women are affected by rape in the same manner rather an amendment should change the way society sees gendered stereotypes of sexuality.

  1. Botched investigations, few convictions

The police are considered shoddy as they do not know how to collect evidence like samples, photographs, fingerprints, and the crime scene is rarely protected. This results in poor prosecutions, few convictions, and amiable jail terms for offenders who are convicted.

  1. Stricter Laws

In India, rape is a common crime, the majority of cases go unreported. The accused in most of the cases are known or trusted people. As the laws are made stricter and also have the death penalty in some rape cases, victims are murdered so that they cannot tell or lodge a complaint against the perpetrators. 

  1. The Legality of Child Marriage 

The Supreme Court read exception 2 of section 375 and held that an act of sexual intercourse of a man with his minor wife will amount to rape. A marriage between a minor girl with an adult is voidable at the girl’s choice but it not completely void. Child marriage is granted legitimacy. Therefore, an adult can have sexual intercourse with his minor wife, but unless it is not reported this will not be a crime. In India, the probability is that number of such cases will remain unreported. But declaring child marriage void could stop this crime against minors.

  1. Statutory Rape

It is defined under Section 375 of the Indian Penal Code states that if any man has intercourse with any girl below 18 years, with or without her consent will constitute statutory rape.

There is no difference left between sex between an adult and a minor, or two consenting minors because minors are considered to not have enough knowledge to give consent for sex. In such cases, sometimes the boys involved are unjustly convicted under the statutory rape clause. In a case, the Madras High Court said as obiter dicta that sexual activities between minors above the age of 16 should not be criminalized.

  1. Marital Rape

India is one of 36 countries where marital rape is legalized. However, the UN Committee on Elimination of Discrimination Against Women (CEDAW), as well as the  Justice Verma Committee, recommended criminalizing marital rape. Still, there is no law to protect women from marital rape. It violates the right to live with dignity (Article 21), and the right to privacy, only women below or 18 years of age are protected from marital rape but what about the women above 18 years? 

Case Study –

Kajal (not her real name), Madhya Pradesh

Kajal, a rape victim who was 23, said that after she filed a complaint of gang rape in the Neemuch district of Madhya Pradesh, she, and her father was detained, threatened, and beaten up by the police. She was slapped, beaten up with a stick, and compelled to sign on several blank papers, and forced to give a false statement in court or her father will be arrested on false charges. Police filed a closure report stating that Kajal and her father had filed a false case against the man accused because of the land dispute between them. However, the closure report was rejected, and the investigation officer was summoned by the chief judicial magistrate. 

Due to threatening from the accused Kajal’s parents asked her to move away from their home before her in-laws abandoned her when she filed a report of rape. When she was in urgent need of medical and counseling support but she was not provided with any referral for counseling.

CONCLUSION

Many changes have been brought in rape laws since 1860 and tried to bring the change in the existing condition of women but still, there are changes required such as criminalizing marital rape. Some laws end up having some negative effects. Every time a big rape case is noticed, the nation is shaken by the outrage and public demanding modification. However, many unreported cases also do not get similar public attention. In current rape laws changes and additions are required. It is time to bring some changes and fight this evil proactively. 

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Call for Campus Ambassador: Lawschole

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About Lawschole

From the beginning, Lawschole has been driven by the interests and involvement of our incredible and engaged law students. We are a growing law-student forum focused on learning, and enhancing the forum experience. We are a great resource, offering opportunities for students to be active in a variety of topics and to engage with each other in an interesting and safe online environment on Lawschole’s Blog. You can check out our free capsule courses in the ‘Courses’ section.  We will be introducing Lawschole’s certificate courses soon, stay updated! Lawschole is a forum where law students can share thoughts, seek opinions and advice, and learn something new from other members of the forum. 

We are currently looking for Campus Ambassadors to:

§  Generate awareness about the Lawschole’s initiatives and it’s various events.

§  Help us to find potential learners to engage and enhance the forum experience.

The Campus Ambassador program is a volunteer position with Lawschole.

Your main objective as a Campus Ambassador is two-fold:

§  To create awareness about Lawschole from your institution.

§  To help us in identifying potential learners who can engage in student interaction.

That essentially means:

§  Helping us facilitate interactive sessions with students in your institution.

§  Ensuring high levels of participation from your college/workplaces.

§  Creating innovative means to have maximum applicants from your institution.

What do you get?

§  Certificate of appreciation from Lawschole.

§  Mentoring and career counselling during the period of engagement.

§  Chance to attend guest lectures and webinars conducted by Lawschole.

Registration 

Interested students are suggested to send their CV along with the following information at campus.lawschole@gmail.com

Name:
Phone Number:
E-mail ID:
College / University:
Batch / Year of Study:

Selected students shall be contacted via email for a telephonic interview. Final Results of the selection will be sent on their respective email id.

Deadline: 15th July 2020

Contact Details

E-mail ID: campus.lawschole@gmail.com

Website link- https://lawschole.wixsite.com/lawschole
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Think India:1st National E-Youth Parliament.

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ABOUT THE ORGANISATION

Think India have felt the need to bind the students with an Indian nationalistic string to harness this part of a national treasure in furthering our aim of national reconstruction. Students from IISc, IIMB, NIMHANS and NLSIU joined together to create a joint forum for the students from premier institutes of India in 2006. A formal forum took placed at the Art of Living Ashram, Bengaluru in 2007.

ABOUT THE EVENT

Are you bored watching the firing debates on TV this lockdown, and now want to speak out your mind on trending national issues?  Here’s a chance!
Think India, an organization spread across all National and Premier Institutes, is organizing the 1st National E-Youth Parliament.

The stage is set, the agenda is on the roar.
The Lok Sabha will be debating on “Cultural Independence in India in light of renaming India as Bharat”.
The Rajya Sabha on “Reforms in Health Sector”
And the AIPPM on “Reforms in Panchayati Raj”

DATE OF THE EVENT

17th July to 19th July 2020.

PERKS

Your debate and your voice can make you win prizes worth ₹22,000

REGISTRATION LINK AND REGISTRATION FEE

The seats are filling fast and all you have to do is register at this link bit.ly/tinypreg and pay a fee of ₹350 at the link http://paytm.me/HcJn-ky or 8076802450
And we will work to allot you the best portfolio based on your debating experience.

CONTACT DETAILS:

If you have any doubts, feel free to contact us  at 8591100039/9111111325