LEGALPEDIA JOURNAL

LegalPedia Journal

Volume1 Issue1 ISSN No. 2581-7949

www.legalpediajournal.com October 18

Message from Editor-in-chief Desk

It gives me immense pleasure to introduce and present the very first issue of the LegalPedia Journal, an edition which covers the contemporary issue around the country. The literacy work presented in this issue provides the various lenses through which the readers can see the society and understand how law is connected with the society as well as relation between the both. The edition addresses the hot topics revolving around the country like Sedition law, Right of Women to worship, Women Empowerment, Status of Acid Attack in SAARC Nations and many more. Thus, this edition will help to clear the clouds around the notion. I am thankful to all the students and professionals for contributing their manuscript for this very first issue. I am sure that our journal will provide top-quality original papers and articles, case reports, essay that will continue to help everyone interested in the field of law. I, again, hope that the journal will continue to be an important conduit for legal research and information on a very broad national and international level. I would also like to extent my gratitude to all members of Editorial board as well as Advisory team for investing their time and support towards this journal.

Prof. (Dr.) B.R.Saini Editor-in-Chief LegalPedia Journal

INDEX

S. NO. PARTICULARS PAGE NO.

1. Role of supreme court on sedition law: 1 – 13

An Analysis

2. Changed legal scenario of Sexual 14 – 25

Offences

3. Acid Attack product of 2013 26 – 39

Amendment: A critical study and

observation in SAARC countries

4. Gender Equality: access to Worship 40 – 49

Places

5. Empowerment of women under Indian 50 – 58

Constitution

6. Abetment and Criminal Conspiracy: an 59 – 71

Analysis

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 ISSN No. 2581-7949 ROLE OF SUPREME COURT ON SEDITION LAW: AN ROLE OF SUPREME COURT ON SEDITION LAW : ANALYSIS AN ANALYSIS -By Nishant Mittal1

Abstract 1 Nishant Mittal ABLaw Sof STRACTedition is as old as the history of civilization, an era in which the concept of patriotism evolved. The word "sedition" comes straight out of the Latin word -- "sed" means apart and La“wition of meSeditionans going is" asi.e. oldgoin asg a ptheart. hisSedittoionry rofefe civilizrs to thea tion,utterin ang or e wrari intin gwhich any wo therds or con - doing any act intended to bring the state into hatred or contempt or to excite disaffection against cept of patriotism evolved. The word "sedition" comes straight out of the the established government. Whereas, Patriotism is the ideology of attachment to a homeland Lawhitinc hw coomesrd -- n a"sed"turally meansand one c apaan’t bret foandrced “ toition come means under the going" umbrell ai. eof. pgoingatriotis mapa. Thus,rt. Se- ditiongovernm reefersnt is tmano theufac turingutter pingatrio ortis mw bryiting the w ayn oyf wseco. r12ds4A or of doing IPC,1860. an Lya wa coft sineditendedtion has a chilling effect on right to free speech and expression under Constitution of India. In Kedar Nath’s case apex court narrowed down the scope of sedition law in India but still government theha sestablished used the weapon g ofv seerdinmetion mantn. yW tihemes.rea Thus,s, P theat rviotismagueness is in the this laideologyw facilitates of it atottach be - meusnedt atrbitro a ahomelandrily. These incid whichents hav comese led to n quaetustironally at tandhe he oneart of cathins c’to nbetrov foerrscyed reg taordi cnomeg the Section124-A lies a black-and-white issue: Can an Indian citizen justify and support a call under the umbrella of patriotism. Thus, government is manufacturing patri- for a part of the country to secede? Can a citizen point of the shortcomings of the government otismmachine byry ?the Do ews haey hofav e sea cri.g ht124A to fr eofely IPC,1860.express him sLelfa wwithou of seditiont being cha rhasged witha chilling the offence of “Sedition? The Answer to all these questions still remains unanswered. But the harsh reality is that, this law is still prevailing in India. Therefore, this paper aims to examine the role Kedar Nath’s case apex court narrowed down the scope of sedition law in of Supreme Court on Sedition law. India but still government has used the weapon of sedition many times.

Thus, the vagueness in this law facilitates it to be used arbitrarily. These inci- Keywords: Sedition, Fundamental, Constitution dents have led to question at the heart of this controversy regarding the Sec-

tion124-A lies a black-and-white issue: Can an Indian citizen justify and sup-

port a call for a part of the country to secede? Can a citizen point of the

shortcomings of the government machinery? Does he have a right to freely

Answer to all these questions still remains unanswered. But the harsh reality

is 1th Niashta,n tthis Mitta l a(LwL. Mis.) ,still Advo pcartee, vDelailinghi High inCo uIrndia.t Therefore, this paper aims to exam- 1 | P a g e ine the role of Supreme Court on Sedition law.

Keywords : Sedition, Fundamental, Constitution

1 Nishant Mittal (LL.M.), Advocate, Delhi High Court

http://legalpediajournal.com ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

INTRODUCTION: -

“As the matter of fact the essence of democracy is Criticism of Government”

-K.M. Munshi2

The word Sedition does not occur in the Sec. 124-A3 or in the Defense of India Rule. It is only found as a marginal note of Sec. 124-A, and is not an operative part of the section but merely provides the name, by which the crime is defined in the section will be known. Sedition in India, a 150-year old law finds its origin in the colonial rule. It was one of the controversial laws which have been inherited from colonial regime. The rationale for sedition is based on the principle that dissemination of seditious material undermines the loyalty of citizens, that disloyal citizens jeopardize the government at Law, and that a weakened Government at Law threatens the very fabric of the state as well as public order and safety.

The English law does not make mere spoken or written words treason where they do not relate to any act or design then actually on foot against the life of the king or the levying of war against and in contemplation of the speaker. But the situation is different in India, as laws on sedition and levying of war and abetment thereof are very strict. The law of sedition developed in the era of monarchy and today it violates the very purpose of the democratic government.

Sedition, as we know today, was imported from the English legal system and enacted as an offence in 1870, to suppress any criticism of British policies, in pre-independent India. It became an instrument to terrorism the natives and implicate nationalist newspapers which disapproved of British colonialism. Bal Gangadhar Tilak, Annie Besant, Jogendra Chandra Bose and Mahatma Gandhi were amongst the first prominent figures to be charged with sedition. In fact, Mahatma Gandhi called it his moral duty to disobey this draconian provision, for it was enacted by an evil State. Consequently, the Constituent Assembly decided against the inclusion of sedition as one of the restrictions to the fundamental right of free speech guaranteed under article 19 of the Constitution. Pandit Jawaharlal Nehru also voiced his discontent against sec. 124A by stating that "the sooner we get rid of it, the better". However, this colonial legacy continues unchecked, for protecting the sentiments of successive

2 Freedom Fighter as well as Lawyer, Constiuent assembly of India Part I Vol. VII, 1-2 December 1948, available at http.//parliamentofindia.nic.in/Is/debates/vol7p16b.html (Visited on 30/08/2018) 3 Indian Penal Code,1860

2 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

Governments. It is increasingly being used to harass and intimidate journalists, human rights activists, artists and political activists, and illustrators, according to the whims of the members of the State and Central Government and other public institutions.

1. CONSTITUTIONAL PROSPECTIVE

The freedom of expression guaranteed under article 19 (1) (a) of Constitution of India, include right to express their views and opinion freely. It also covers the right to criticize government, the requisite of a healthy democracy. In Terminiello v. Chicago, Justice William O. Douglas had explained the rationale behind the freedom of speech as: “a function of free speech under our system of government is to invite dispute; It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions.” However, “the liberty of the individual to do as he pleased even in innocent matters is not absolute” but, limited to only grounds listed in article 19(2) of Constitution of India. International law provides a general ‘three-part’ test for assessing restriction on the freedom of expression., Any restriction of the freedom of expression must be cumulatively as such; it must be provided for by law, have legitimate aims and must be ‘necessary in a democratic society like India’ A sedition law, even if manage to pass the two previous tests unable with third one. It is because it cannot be in any circumstances ‘necessary in democratic society’. While describing Section 124A Mahatma Gandhi in 1922 said “prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.” He further said that “Affection cannot be manufactured or regulated by law”. Therefore, this provision of sedition is against the notion of democracy because the right of freedom should be promoted to the maximum extent possible given its critical role in democracy and public participation in political life.

2. EVOLUTION OF SEDITION BY SUPREME COURT:

It is not surprising, under these circumstances, that the validity of sec. 124A vis-à-vis the freedom of speech was challenged in a number of cases soon after the Constitution came into force. The first in the series was Tara Singh Gopi Chand v. The State of Punjab, in which Mr. Chief Justice Westen, in order to examine the validity of sec 124-A adopted the interpretation given to it by Mr. Justice Strachey in the Tilak case. According to Mr.Justice Strachey, the offence consisted in exciting or attempting to excite in other certain bad feelings towards the

3 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 government irrespective of the consequences that may or may not follow. Mr. Chief Justice Weston wrote:- India is now a sovereign democratic State. Governments may go and be caused to go without the foundations of the State being impaired. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change, which has come about. It is true that the framers of the Constitution have not adopted the limitations, which the Federal Court desired to lay down. It may be they did not consider it proper to go so far. The limitation placed by Clause (2) of Article 19 upon interference with the freedom of Speech, however, is real and substantial. The unsuccessful attempt to excite bad feelings is an offence within the ambit of Section 124A. In some instances at least the unsuccessful attempt will not undermine or tend to overthrow the State. It is enough if one instance appears of the possible application of the section to curtailment of the freedom of speech and expression in a manner not permitted by the constitution. The section then must be held to have become void.

Besides this authoritative pronouncement of the Punjab High Court, there was an oblique reference to the validity of sec. 124A in the Supreme Court decision in Romesh Thapper v. The State of Madras4. Although the validity of sec. 124A was not in issue in the case5, Mr. Justice Patanjali Sastri, speaking for the majority of the Court6, observed: Deletion of the word “sedition” from the draft Art. 13(2), shows that criticism of government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security it tend to overthrow the state7. These observations of the Supreme Court, being in the nature of obiter dicta, did not authoritatively settle the question of the validity of sec 124A. Moreover, as a result of the decisions of the Supreme Court in Romesh Thapper and Brij Bhushan v. state of Delhi8, art.

4 A.I.R. 1950 S.C. 124. 5 The Supreme Court, by a majority decision, declared that the Madras Maintenance of Public Order Act, 1949, was violation of article 19(1)(a). 6 Mr. Justice Fazl Ali, in his dissenting judgment, however, expressed the view that “matters which undermine the security of the state” have the same meaning as “law of sedition”. According to this view, the restrictions imposed by sec. 124A of the penal code would come within the permissible limits of article 19(2) 7 Mathew Hale & George Wilson Thomas, The History OF The Pleas of the Crown, Vol.1 59 (1st edn. 1800) at 128. 8 A.I.R. 1950 S.C. 129.

4 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

19(2) was amended in 19519 whereby “public order” was included as one of the additional grounds on which reasonable restrictions could be imposed on the freedom of speech and expression. Thus the validity of sec. 124A again became a debatable issue since the government could, as it latter did, claim that the restrictions placed by the section on the freedom of speech were in the interest of public order.

It is to be seen now, whether S. 124-A of the Indian Penal Code is in conflict with the amended clause (2) of Article 19 or not. There appears to be three different views on the question as reflected by the decisions of the courts. These can be summarized as under:

(i) Section 124-A IPC is ultra vires the Constitution inasmuch as it infringes the fundamental right of freedom of speech in Art. 19(1) (a) and is not saved by the expression "in the interest of public order". It was held in the case of Ram Nandan’s case10 where the constitutional validity of section 124A of the IPC was challenged in an Allahabad High Court case that involved a challenge to a conviction and punishment of three years imprisonment of one Ram Nandan, for an inflammatory speech given in 1954.

(ii) Section 124-A is not void because the expression "in the interests of public order" has a wider connotation and should not be confined to only one aspect of public order viz. to violence It has a much wider content, and embraces such action as undermines the authority of Government by bringing it into hatred or contempt or by creating disaffection towards it From this point of view S. 124-A IPC is saved under clause (2) of Art. 19.11

(iii) Section 124-A IPC is partly void and partly valid. In Indramam Singh v. State of Manipur12 it has been held that S. 124-A which seeks to impose restrictions on exciting mere disaffection or attempting to cause disaffection is ultra vires, but the restriction imposed on the

9 The Constitution (First Amendment) Act, 1951. 10 Ram Nandan v. State, AIR 1959 All. 101 11 Debi Soren v. State, AIR 1954 Pat. 254. The Supreme Court has also endorsed the view of Patna High Court in so far as the expression "in the interest of public order", is concerned. The SC is also of the opinion that the expression has a wider connotation, see Ramji Lai Modi v. State, AIR 1957 S.C. 620 and also State ofU.P. v. Ram Manohar Lohia, 1960 SCJ 567. Another view is that the words "in the interests of public order" is equivalent to "for reasons connected with public order". Walliullah, J, observed in Basudev v. Rex, AIR 1949 All. 523. (F.B.), that the expression 'for reasons' connected with "must mean a real and genuine connection between the maintenance of public order on the one hand and the subject of legislation on the other". See also Ram Nandan v. State, AIR 1959 All. 101. 12 AIR 1955 Manipur 9.

5 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 right of free-speech which makes it punishable to excite hatred or contempt towards the Government established by law in India, is covered by clause (2) of Art. 19 of the Constitution of India and can be held intra vires.

Whether restrictions under Art. 19(2) may be imposed in the interest of public or not has been clarified by the Supreme Court; it held that restrictions imposed must have a reasonable and rational relation with the public order, otherwise it would be invalid.13 The desirability of having such a law as S. 124-A has been questioned in the present context of events.14 Thus it may be observed that the courts appear to be differing in their view points with regard to its constitutional validity. The desirability of having a law of sedition in our statute book may be examined and its proper meaning and scope determined so that a law of sedition, if it is necessary must fit in not only within the four corners of the constitutional provisions but must also be in consonance with the democratic spirit and traditions which pervade our Constitution. The conflicts of views were come to an end after the landmark case of Kedarnath v. State of Bihar15. Finally, it was held that, Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the limit of permissible legislative interference with the fundamental right.

2.1 KedarNath Case:

After recording a substantial volume of oral evidence, the learned Trial Magistrate convicted the accused person both under S.124A and 505-(b) of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year. The convicted persons preferred an appeal to the High Court of Judicature at Patna, the Court upheld the convictions and the sentence and dismissed the appeal. Finally, it was held that, Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the limit of permissible legislative interference with the fundamental right.

13 V.K. Javali v. State of Mysore, AIR 1966 SC 1387. See also R. Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1113; Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2363. 14 See Report of Press Commission. The Press Commission has recommended that S. 124-A should be repealed. See also the observations of Beg, J., In Ram Mandan V. State A.I.R. 1959 All. 101. 15 A.I.R. 1962 SC 955

6 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

However, the convict approaches Supreme Court through Special leave petition16. The Apex court while upholding the constitutionality of the judgment distinguished between “the Government established by law” and “persons for the time being engaged in carrying on the administration”. The Court distinguished clearly between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence: “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition of the stability of the State. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings, which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.17

The Court further went on to say:

“This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a license for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to

16 Ibid 17 Ibid

7 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order18.”

Thus, the Supreme Court upheld the constitutionality of the sedition law, but at the same time curtailed its meaning and limited its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. It is important to note that the Supreme Court read down the offence of sedition in effect removing speech which could be exciting disaffection against the government but which did not have the tendency to create a disturbance or disorder from within the ambit of the provision. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.

3. Maintenance of Public Order as a Limit on Free Speech

The reason the drafters of the Constitution omitted the term ‘sedition’ from the enacted Constitution was the divergence in interpretation of the term.19 To avoid any complications that may arise out of this ambiguity in interpretation, they used the term ‘security of the state’ that was to include grave crimes like sedition20. Concurring with this reasoning, the Court in KedarNath stated that the section related to sedition was a reasonable restriction both on grounds of ‘public order’ and ‘security of the state’. Further, the addition of the phrase ‘in the interest of public order’ in Article 19(2) through the first constitutional amendment with retrospective application was seen as an attempt to validate the interpretation given by Fazl Ali, J. in Brij Bhushan v. State of Delhi21 (‘Brij Bhushan’) whereby ‘public order’ was allied to ‘security of the state’.22 The insertion of the words ‘in the interest of’ before public order in Article 19(2) was seen as providing wide amplitude of powers to the State for the curtailment of free speech23. Consequently, the amendment was seen as a validation of the law of sedition. Since then, however, a clear distinction has been drawn by courts between the terms ‘public order’ and ‘security of the state’24. The difference, essentially, is one of degree. While the terms

18Ibid 19 Narrain 20 While it was widely accepted by various scholars and authorities that sedition was essentially an offence against public tranquility and was represented by any form of public disorder, the Judicial Committee had stated that the intention or tendency to incite disorder was not an essential element of the crime of sedition as defined in the IPC. 21 Brij Bhushan v. State of Delhi, AIR 1950 SC 129 : (1950) 51 Cri LJ 1525. 22 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 23 Id 33, (The Court cited the decision in Debi Soren v. State, AIR 1954 Pat 254 to support this contention) 24 V.N. Shukla, Constitution of India 135 (M.P. Singh, 2008).

8 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 have not been precisely defined, public order is synonymous with public safety and tranquility and has only local significance. Security of the state, on the other hand, would involve a national upheaval such as revolution, civil strife or war.25 Thus, an argument that a law justified ‘in the interest of public order’ would also consequently be justified in the interests of the ‘security of the state’ would not stand.

Further, it would also be difficult to argue that the law could be saved on the grounds of being ‘in the interests of public order’. For the purpose of permissible restriction, the breach of public peace may be categorized as: offences against ‘law and order’, ‘public order’ and ‘security of the state’. According to the judgment of the Supreme Court in Ram Manohar v. State of Bihar26 (‘Ram Manohar Lohia’) these may be viewed as three concentric circles, with ‘law and order’ forming the outermost circle, ‘public order’ the next circle and ‘security of the state’ the innermost circle. These form a hierarchy of disturbances of peace, with security of the state possessing the highest standard of proof. Thus, if a restriction is to be justified on the grounds of ‘security of the state’, it would have to be subjected to a higher standard than that applied in cases of ‘public order’. And if we talk about public order, the restriction to be held as reasonable restriction should be one “which has a proximate connection or nexus with public order but not one far-fetched, hypothetical or problematic or too remote in the chain of its relation with the public order”27.

As has already been stated, sedition is an offence against the State and punishes an act intended to subvert the government established by law. It is difficult to imagine how the mere disturbance of public order could attract a charge for an offence against the state, given that the term ‘in the interests of public order’ is used in an extremely localized context.28 These could include punishing loud and raucous noise caused by noise-amplifying instruments in public places or preventing utterances likely to cause a riot. Thus, in light of the clear distinction that has been drawn between ‘public order’ and ‘security of the state’ in Ram Manohar Lohia, the courts have in subsequent decisions on sedition imposed a disturbance of public order requirement for the offence to be proved29.

25 Ibid 26 Ram Manohar v. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709 27 In laying down this principle, Subba Rao, J., relied upon the judgment of the Federal Court in Rex v. Basudeo, A.I.R 1950 F.C. 67. 28 Supra Note 26 29 Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785

9 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

4. RECENT CASES: -

Some of the prominent cases reinforcing the same idea have been discussed herein under:

In Aug 2006, Manoj Shinde an editor of a Gujarati eveninger, Surat, Gujarat was who is facing sedition charges for using "abusive words" against CM Narendra Modi in an editorial on Monday, while alleging administrative failure in tackling the flood situation in Surat30. He also held them responsible for the epidemic outbreak after the floodwaters had receded in the city. As a result he was charged with sedition and further arrested. In May 2007, kahturam Sunani a journalist of OTV, Sinapali, Orissa, for filing a report that Pahariya tribals were consuming ‘soft’ dolomite stones in Nuapada district due to acute hunger31. In May, 2007, In the well-published case of Dr. BinayakSen, the General Secretary of the Peoples Union for Civil Liberties, was arrested under Section 124A of the IPC, under Section 121A of the IPC and under state law, The Chhattisgarh Special Public Security Act 2005. In June, 2008, Kirori Singh Bainsla leader of gujjar Community from Bayana, Rajasthan faced sedition charge against him came as a shock for the community, especially as this happened at a time when the terms of the talks had not been fully laid out; only a consensus on the venue had been reached32. In Dec,2008 Lenin Kuman editor of Nishan from Orissa, was picked up by police on December 8, 2008, after a special booklet on the Kandhamal riots entitled ‘Dharmanare Khandamalre Raktonadhi' (The rivers of blood in Kandhamal) was published in the magazine33. In September, 2009, Laxman Choudhury a journalist of sambadh. Gajapati district is one of the backward tribal dominated and naxal-affected areas, Mr Choudhury has

30 Available at : http://archive.indianexpress.com/news/editor-charged-with-sedition-for-abusing-modi/11721/1 (visited on 24/08/2018) 31 Available athttps://www.reddit.com/r/india/comments/1xgbin/a_brief_of_sedition_law_section_124a_and_its/ (visited on 24/08/2018) 32 Available at http://www.frontline.in/static/html/fl2513/stories/20080704251302600.htm (visited on 24/08/2018) 33 Available at http://www.thehoot.org/free-speech/media-freedom/but-what-about-the-little-guys-4906 (visited on 24/08/2018)

10 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

been highlighting many issues like poverty, deprivation of the people, misappropriation of government funds, all of which might made him a headache for the administration or the police34. In 2009 a V Gopalaswamy (Vaiko) sedition charge were being framed and was being slapped for his statements against India’s sovereignty in speech on Sri Lanka’s war with LTTE at a book launch function. In Jan 2010, Piyush Sethia an environmentalist and organic farmer, as a representative of the Campaign for Justice and Peace, a nationwide campaign started by people concerned about human rights violations in Chhattisgarh, he reportedly had in his possession pamphlets condemning the state sponsored Salwa Judum violence in Dantewada district of Chhattisgarh state35. In June, 2010, Niranjan Mahapatra, Avinash kulkarni, Bharat Pawar who are renowned trade union leaders as well as social activists once faced the charges of sedition due to their allegation of linking Gujarat police with CPI i.e Maoist.36 In 2010 Arundhati Roy and others were charged under sections 124A (sedition), 153A (promoting enmity between classes), when she spoke at "Azadi-the Only Way"? conference in Jammu and Kashmir. The filing of the FIR came following a directive from a local court on a petition filed by Sushil Pandit who alleged that Geelani and Roy made anti-India speeches at a conference on a senior police official said. In December, 2010, Noor Muhammed Bhat, a lecturer in English literature at the Gandhi Memorial College, Srinagar, (affiliated to Kashmir University) was arrested for setting an "anti-establishment" English-B paper for first year BA, BSc and BCom students. A question in the paper was whether stone-pelters were the real heroes. In 2011, a nationwide anti-corruption movement India against Corruption gathered pace in the leadership of a veteran Gandhian Anna Hazare demanding Jan Lokpal Bill. Aseem Trivedi joined the crusade and started a cartoon based campaign, Cartoons against Corruption to support the movement with his art. In September 2012, Koondankulam protests Another application of the sedition laws has been mass arrests of protesters in Idinthakarai and Koodankulam in Tamil Nadu.

34 Available at http://www.thehoot.org/free-speech/media-freedom/orissa-journalist-languishes-in-jail-4215 (visited on 24/08/2018) 35 Available at http://www.livemint.com/Leisure/tZc3CAq1yJcXmRlnrKEh8O/Salems-green-warrior.html (visited on 24/08/2018) 36 Available at https://kractivist.wordpress.com/2012/06/26/a-stick-called-124a-the-state-finds-a-handy-tool-in- a-colonial-law-to-quell-dissent/ (visited on 24/08/2018)

11 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

Amidst protests over the safety of the Koondankulam power plant, the police have arrested up to 6000 people in the months from September to December 2011 alone37. In March 2014, 60 Kashmiri students were charged with sedition in Uttar Pradesh for cheering for the Pakistani team in a cricket match against India38. Resultantly, the university management ordered an inquiry and temporarily suspended all the students residing in the hostel as a “precautionary measure”.39 In October 2015, In this case, a single Judge Bench of the Allahabad High Court threw out a charge of 'sedition' against the Petitioner who is also the Finance Minister under the Central Government ‘Arun Jaitley’.40 In 2015 The Gujarat government booked a Patel leader under sedition for sending messages containing “offensive language against the Prime Minister, the State Chief Minister and Amit Shah, the President of BJP” as well as quoting the statement that If you have so much courage…then go and kill a couple of policemen. Patels never commit suicide41,” In February 2016, JNU, Jawaharlal Nehru university student union president Kanhaiya Kumar was arrested on charges of sedition under section 124-A of Indian Penal Code for speaking against the hanging of the Afzal guru and was termed anti Indian.42

5. CONCLUSION & SUGGESTIONS:

Despite of the constitutional provisions as well as strict construction laid down by Supreme Court in early as 1960s, the law of sedition is characterized by its incorrect application and is used as a tool for harassment. The law enforcement agencies have always used it against artists, editors, journalists, intellectuals, social workers as well as politicians. In fact the apex court itself did not apply these strict principles to the speech of KedarNath and his conviction. This hypocrisy of the courts has led to the continued existence of the sedition law in India. The

37 Pallavi Polanki, “More Sedition Cases Against Anti-Nuke Protestors than Maoist Militants,” First Post, 21/04/2012, www.firstpost.com/politics. (visited on 24/08/2018) 38 Sanjeev Miglani, “Kashmir students in Meerut in trouble after cheering Pakistani cricketers”, Reuters India, March 6, 2014 http://in.reuters.com/article/india-pakistan-cricket-kashmir-idINDEEA250DN20140306 (last visited on 24/08/2018) 39 “India drops sedition charge for Kashmiri students in cricket row”, BBC News, March 6, 2014 http://www.bbc.com/news/world-asia-india-26463140 (last visited on 31.08,2018) 40 Arun Jaitley v. state of U.P. , Nov. 2015 41 Available at http://indianexpress.com/article/india/india-news-india/hardik-patel-booked-for-sedition-over- comments-on-gujarat-police/ (visited on 01/09/2018) 42Available at http://indianexpress.com/article/india/kanhaiya-kumar-sedition-a-year-on-delhi-police-lack- evidence-to-charge-ex-jnusu-president-kanhaiya-kumar-report-4549115/ (visited on 10/09/2018)

12 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 analysis of the said judgment of Supreme Court itself demonstrates certain deficiencies in how the law is currently understood. There is a shift in how we understand ‘security of the state’ as a ground for limiting the freedom of speech and expression. Even the maintenance of ‘public order’ cannot be used as a ground to justify these laws as it is intended to address local law and order issued rather than actions affecting the very basis of the state itself. Though, there is a need for such law to deter the activities that promote violence and public disorder, slapping sedition charges on mere spoken or written words is just not constitutional. It is the defect of law makers that this law is being misused time to time. If we talk about the stand of Supreme Court, it has cleared it in early years of independence by limiting its scope and applicability. Not only this, Supreme Court has also distinguished between advocacy as well as incitement, which reflected as a milestone in the journey of sedition law. Although court hasn’t clearly stated this law unconstitutional but decreased its scope and effect by their judgments. But the core problem lies with the lower judiciary as they entertain the matters in which sedition is wrongly used. There are many convictions which are challenged in the higher courts and the sentence has been changed. These courts have failed to understand the concept which is given by the apex court.

13 | P a g e

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 ISSN No. 2581-7949 CHANGED LEGAL SCENARIO OF SEXUAL OFFENCES CHANGED LEGAL SCENARIO OF SEXUAL OFFENCES -By Shivani Singhal1

Abstract

Sex related offences are universal phenomena, which take place in every society. Sexual offences 1 ABaptly StakTRACTe the form of sexual violence, which sometimes cause severe and irrShieparavbanile da mSinghalage to the physical and mental health of the victims. Whenever we heard these two words sexual and offence together the first thing that comes to our mind is rape, sexual harassment, child sexual abuse etc. & with these we always have a thought that the practice of such offences is a never- ending thing in our society and our police is helpless in such matters. But everyone forgets the most important thing i.e. “we need to change ourselves before changing others”. In 2013 after the which sometimes cause severe and irreparable damage to the physi- horrible case of “Delhi Gang Rape” our judicial system has come up with various amendments in calfa vorand of wommeenn talrega rdihealthng their ofprot theection vi andctim punishs. mWentshene to thev erculpri wtes. heaEveryr prud thesedent being tw o knows what sexual offence is but this doesn’t puts stop on sexual offenses, on the other hand the victim & its family loses everything as they can’t get over the emotional abuse which comes with mindthe se xisua lr apabusee,. Thissexual pape rha aimrsassme to analynsist ,the child Chan gsee inxual legal abusescenario aefttecr .the & Amwithendm theseent Act of 2013. This Amendment Act has inculcated in Indian Penal Code and code od Criminal - erP-roendingcedure. thing in our society and our police is helpless in such mat- ter s. But everyone forgets the most important thing i.e. “we need to change ourselves before changing others”. In 2013 after the horrible

case of “Delhi Gang Rape” our judicial system has come up with vari-

ous amendments in favor of women regarding their protection and

punishme nts to the culprits. Every prudent being knows what sexual

hand the victim & its family loses everything as they can’t get over the

emotional abuse which comes with the sexual abuse. This paper aims

to1 Sanalhivani Siynsisghal (LL.theM.), Change Advocate, Delhi in H ighlegal Court scenario after the Amendment Act of 2013. This Amendment Act has inculcated in Indian Penal 1C4 |ode P a g eand

code od Criminal Procedure.

1 Shivani Singhal (LL.M.), Advocate, Delhi High Court http://legalpediajournal.com ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

1. INTRODUCTION

The women’s have faced discrimination at every point of life as daughter, sister, wife & mother even they were at high places they still have faced discrimination. In whole world the countries have their own laws their own constitutions upon which they govern and run their society and maintains the balance, but when someone commits some crimes that person will be punished as per their laws only. But every country has very harsh laws against sexual offences as it is considered the most horrible act against the human kind.

Sexual offences destroy the life of the women’s as they were already facing discrimination in every point of their life. Sexual offences are very grievous in nature they not destroy the physical health of the victim but also affect their mental health which never heals.

A wide variety of sex related offences take place in different circumstances and social settings. Some of the most prominent ones are sexual assault (without intercourse), forcible rape, sexual abuse of mentally or physically disabled people, sexual abuse of children including statutory rape (sexual intercourse with or without consent with minors) adultery, sodomy, fornication, forced marriage, violent acts against the sexual integrity of women and forced prostitution and trafficking of people for the purpose of sexual exploitation2

2. WOMAN’S MODESTY

What constitutes an outrage to female modesty? The essence of a woman’s modesty is her sex. Modesty is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. This is the judgement of Supreme Court in the case of Pandurang Mahale v. State of Maharashtra3.

2 Mr. H. J. Vetter, Faculty of law, University of Amsterdam 3 AIR 2004 SC 1677

15 | P a g e

ISSN No. 2581-7949

Outraging a woman’s modesty is mentioned in section 354 of IPC which applies to crimes against women that stop short of penetration. The punishment for section 354 before 2013 amendment was imprisonment of either description for a term which may extend to two years, or fine, or both.

There was a case State of Punjab v. Major Singh4 in which the accused walked into the room where a female child of seven and a half month was sleeping and caused injuries to the vagina of the girl by fingering. The accused was held liable for outraging the modesty of the child under this section 354, IPC.

It is abject that the punishment for perpetrating such grisly crimes upon women and petite girls was just of imprisonment extending to 2 years or fine or both. It takes several years for a child or a woman to come out of the ordeal of sexual assault. It is next to impossible for a woman and a child to forget such ghastly wounds in her whole life. She dies inside each time she reminisces the past.

It is very blatant that the punishment for wrecking the modesty of a woman was unjust. Many heinous, gruesome, atrocious crimes have happened with women and child on Indian soil but it seems as if Indian law had renounced to hear the yelps of lacs of women and children who died without getting justice.

India is a country known for worshipping maximum number of Goddesses like Laxmi, Sarasvati, Parvati, and foremostly India itself is known as Bharat Mata. It’s ignominy of India that in spite of being very rich in sacred scriptures about Goddesses, lacs of Indian women have been molested to death endlessly.

Women have wept for justice but can it be said proudly that Indian law for sexual offences has done justice to women? It has succeeded in salvaging the modesty of Indian women! The answer is it was a big failure on the part of Indian law to protect the dignity of women and children from brutes.

Under English Law any person on proved to be guilty of committing sexual assault5 is liable to imprisonment for a term not exceeding 10 years.

4 AIR 1967 SC 63 5 Part b,Sub-clause(4) Sec�on3, Sexual Offences Act 2003

16 | P a g e

ISSN No. 2581-7949

It is a law that creates deterrence to others from emulating the felony unlike Indian law. It is a law that pays homage to her country’s dwellers. If such strict laws had stipulated in India on time then such crimes would not have augmented with every increasing day and the respect and modesty of many women and adolescents had not been beleaguered by the beasts despicably.

But after the Criminal Law Amendment Act 2013 in light of the protests in “Delhi Gang Rape Case” the legal scenario is seemed to be changed. This act can be said, has brought drastic changes in the punishments for sexual offences and also included the abhorrent forms of crime with stringent punishments for them to create deterrence to the perpetrators of such crimes.

The SECTION 354 has been amended by this act and the punishment for this offence has been made imprisonment for 1year which may extend to 5years and fine has been made compulsory.

Further parts to this section have been inserted-

SECTION 354A- Sexual Harassment and Punishment for Sexual Harassment: It includes maximum punishment of rigorous imprisonment for 3years or fine or both for physical contact and demanding sexual favours from a woman and showing pornography against her will. And punishment for making sexually coloured remarks is imprisonment for 1year or fine or both.

SECTION 354B- It includes assault with Intent to Disrobe a Woman and punishment for this is minimum 3years and maximum 7years and compulsory fine.

SECTION 354C- Punishment for Voyeurism (watching or capturing images of a woman when she is engaged in private acts including sexual acts) has been made minimum imprisonment for 3years and maximum 7years and compulsory fine.

SECTION 354D- Punishment for Stalking a woman, attempting to foster personal interactions, monitoring her electronic communications includes on first conviction imprisonment till 3years and fine and on second or subsequent conviction imprisonment till 5years and fine.

This reflects substantial change in the outlook towards the crime and a stronger determination to deter criminals. This change gives the spirit to women that they can now come out of their houses and fearlessly ramble in their arena. The responsibility of their safety is now being taken by the law and order.

17 | P a g e

ISSN No. 2581-7949

3. MOST IGNOBLE ACT: RAPE

Rape of a lady is equivalent to killing her, taking away her soul and leaving a dead body to face the obdurate society. In most of the cases women are ostracized by the society and even killed by their own family members to keep the honour of the family intact. More mordacious consequence is conceiving by the victim that leaves her no option except ending her life herself in ignominy and despair. The most disheartening part of it is the increasing number of rapes in India, and vehement outcry of victims for justice. But where is the justice?

Law for Rape before 2013 amendments- Section 375 of IPC deals with the crime of rape and section 376 with the punishment for rape which is- whoever commits rape shall be punished with imprisonment for 7 years and may extend to 10 years and shall also be liable to fine unless the woman raped is his own wife and is not under 12 years of age, in which cases he shall be punished for imprisonment till 2 years or fine or both.

Also provided that if court may deem fit, then punishment can be given less than 7 years in special circumstances.

In one case of Gurmit Singh6, the three accused drove a young girl below 16 years of age studying in 10th class, to the tube-well, coercively made her consume liquor then removed her salwar, opened her shirt, put her on a cot and committed rape upon her. She resisted and cried in pain and then the other two accuseds raped her. The apex court convicted the accuseds under this section 376, IPC.

Sources show that rape cases in India have doubled between 1990 and 20087. According to the National Crime Records Bureau, 24,206 rape cases were reported in India in 2011, but experts agree that the number of unreported cases of sexual assault brings the total much higher8.The same Bureau states that in 2012, 24,923 rape cases were reported across India.

6 AIR 1996 SC 1393 7 Rape sta�s�cs around the world. Indiatribune.com. 2012-09-11. 8 Meenakshi Ganguly, South Asia director (2012-12-29). India: Rape Vic�m’s Death Demands Ac�on | Human Rights Watch

18 | P a g e

ISSN No. 2581-7949

This itself manifests that to what extent Indian law has been just to women, adolescent girls and to their family members. In one judgment9 of Supreme Court, it was held that the cases of sexual offences should be dealt sternly and severely. How much shallow the Indian law for sexual offences is, in itself, can be seen by any layman. If these words “sternly and severely” had been taken earnestly then many mothers, wives, sisters, and daughters would not have been ravished on every other street of India and died waiting for justice. This law for sexual offences had discomfited to a great extent. No action, no rigorous change was adopted in IPC to improve the status of women before 2013 amendments, law did not hear to the torments of women and adolescents getting disrobe on roads ceaselessly.

4. MARITAL RAPE- AN EXCEPTION TO RAPE

The exception to s375 states that non-consensual sexual intercourse by a man with his own wife, if she is above fifteen years, does not amount to rape and also if rogered with minor wife below 15 years of age, husband cannot be prosecuted if more than one year has elapsed from the date of such sexual intercourse10. It, thus, keeps outside the ambit of ‘rape’ a coercive and non-consensual sexual intercourse by a ‘husband’ with his ‘wife’ and thereby allows a ‘husband’ to exercise, with impunity, his marital right of non-consensual intercourse with his ‘wife’. It is believed that the husband’s immunity for marital rape is premised on the assumption that a woman, on marriage, gives forever her consent to husband for sexual intercourse. According to our Indian sexual offences law a husband has the right to have sexual intercourse with his wife, whether she is willing or not, and she is under obligation to surrender to his desire.

Under English Law there is no such exception to rape and a husband can be convicted of the ‘rape’ or ‘attempted rape’ on his own wife11 where she has withdrawn her consent to sexual intercourse. Punishment of rape12 by any person on proved guilty is life imprisonment.

9 State of H.P. v. Shri Kant Shekari, AIR 2004 SC4404 10 Sub-sec.(6) of sec.198 Cr.P.C 11 R. v. R. (1991)4ALL ER481HL 12Sub-clause(4) of sec.1, Sexual Offences Act,2003

19 | P a g e

ISSN No. 2581-7949

Taking a serious note of the inadequacy of the law of rape manifested in a number of judgments of the apex court and its failure to safeguard the rights of innocent victims against the heinous crime, the parliament in 2013 extensively amended law of rape so as to make it more severe and deterrent by passing The Criminal Law Amendment Act 2013. This act completely substituted sections 375, 376A, 376B, 376C, and 376D.

SECTION 375- The offence of rape has been made both penile and non-penile insertion into bodily orifices of a woman by a man an offence. The definition is now broadly defined in some aspect, with acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or applying of mouth to sexual organs without her consent.

Now this section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence.

SECTION 376- Punishment for Rape: Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations (like woman below 16years) punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Also Rape by Armed Personnel: The act fails to address contentious issue of ‘legal immunity’ for army officials. The Justice Verma Committee Report suggests that any army official accused of sexual assault or rape should be tried under civilian law and should not be protected by the law that guarantees absolute protection. Although act considers ‘rape by armed personnel’ within the area they are posted in as an offence, with punishment of no less than 7years which may extend to imprisonment for life and fine, however, this offence is meaningless for the military officers deployed in the States of North East India, Jharkhand and Jammu and Kashmir where the 1958 draconian Armed Forces Special Powers Act is still in force which guarantees effective immunity to the armed officials. The requirement for sanction to prosecute armed personnel should be removed in relation to sexual offences.

SECTION 376A-If a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be

20 | P a g e

ISSN No. 2581-7949

punished with rigorous imprisonment for 20years may be extended to life imprisonment or with death."

Now rape resulting in death has been made a specific offence under this section.

SECTION 376B- Punishment for Sexual Intercourse by Husband upon Wife during Separation forcefully is made imprisonment for 2years may be extended to 7years and liable to fine.

SECTION 376C- Punishment for Sexual Intercourse by a Person in Authority like fiduciary relationship, a public servant, manager of jail, hospital staff is imprisonment for 5years may be extended to 10years and liable to fine.

SECTION 376D- Gang Rape: persons shall be punished with rigorous imprisonment for 20years may be extended to life and shall pay compensation to the victim that shall be reasonable to meet the medical expenses and rehabilitation of the victim.

SECTION 376E- Punishment for Repeat Offenders- whoever previously convicted of an offence under sec.376, 376A, 376D and is subsequently convicted under any of the said sections shall be rigorously imprisoned for life or with death.

5. NOTABLE CHANGES

The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape.

Critiques’ contention on this change that raising the age of consent to 18years leaves ample room for teenage boys below 18years to be wrongly prosecuted as rapists or offenders of sexual assaults simply for kissing, hugging or even having a consensual sexual intercourse with a girl of his age.

Although, the decision of death penalty for the most extreme rape cases has been approved by the Indian parliament, marital rape is still not accepted as a criminal offense within Indian legal framework, except during the period of judicial separation of the partners.

21 | P a g e

ISSN No. 2581-7949

In the 1980s, women's rights groups lobbied for marital rape to be declared unlawful, as until 1983, the criminal law (amendment) act stated that "sexual intercourse by a man with his wife, the wife not being under fifteen years of age is not rape".

The government officials argued that the contract of marriage presumes consent to sex and that criminalizing marital rape in turn would weaken family values in India.

It should be noted that self restraint is an important element of human life especially the matrimonial life. Even in cases of persistent refusal by the wife to have sex, the husband cannot do ‘forced sex’ the remedy lies in demanding divorce.

Damini Gang Rape Case a watershed incident which should be credited for bringing this incredible change in law for sexual offences -The gang rape of a 23 year old student on a public bus, on 16 December 2012, sparked large protests across the capital Delhi. A rod was used to penetrate her so severely that the victim's intestines had to be surgically removed, before her death thirteen days after the attack.

In the 24-hour period after the gang rape of the victim, at least two girls under the age of 18 were gang raped and one of them was murdered.

And the punishment for gang rape in India before 2013 amendments was imprisonment for 10 years extended to life imprisonment with fine. If this punishment was justified and served as deterrence then many Daminis would not have lost their life in India.

Thousands of people, mostly young, participated in massive demonstrations for about a month in major cities throughout the country for justice and to bring an unprecedented change in Indian law for sexual offences.

Then Justice Verma Committee was constituted to recommend amendments to the Criminal Law in 2013 so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. Then recommendations like introduction of offences such as acid attack, human trafficking, sexual harassment, disrobing, voyeurism, and stalking included in the Indian Penal Code.

22 | P a g e

ISSN No. 2581-7949

Punishment for sexual exploitation of a trafficked person includes imprisonment for 3years extended to 5years and in case of a minor 5years to 7years and liable to fine is incorporated in sec.370A, IPC.

THE CRIMINAL PROCEDURE CODE has also been amended: the most noteworthy change in it being made is the caveat that if a public servant is accused of rape, there will be no need for the government's sanction to prosecute him.

Also, certain important changes made in Criminal Procedure Code, 1973 include-

Amendment of sec.154-The information given by a woman against offences under sec.326A, 326B, 354 (A-D), 376 (A-E) and 509 of IPC alleged to be attempted or committed shall be recorded by a woman police officer, video-graphed, at a convenient place of such person’s choice.

Amendment of sec.309- The inquiry or trial of offences under sec.376 (A-D) of IPC as far as possible should be completed within 2 months from the date of filing the charge sheet.

Insertion of new sec. 357B and 357C- The compensation shall be paid by the State Government in addition to the fine paid to the victim under sec.326A and 376D of IPC.

The first aide or medical treatment shall be provided free of cost to the victim under sec.326A, 376 (A-E) of IPC.

Besides such changes in the criminal law, the government gave statutory force to the 1997 Vishaka13 guidelines requiring all organizations to set up an internal complaints committee to deal with sexual harassment at the workplace.

6. CONSEQUENCES OF SEXUAL OFFENCES

6.1 Pregnancy and Gynecological Complications Gynecological complications have been consistently found to be related to forced sex. These include vaginal bleeding or infection, fibroids, decreased sexual desire, genital irritation, and pain during intercourse, chronic pelvic pain and urinary tract infections.

13 Vishakha and others v. State of Rajasthan

23 | P a g e

ISSN No. 2581-7949

Women who experience both physical and sexual abuse from intimate partners are at higher risk of health problems generally than those experiencing physical violence alone.14 6.2 Sexually Transmitted Diseases HIV infection and other sexually transmitted diseases are recognized consequences of rape. Research on women in shelters has shown that women who experience both sexual and physical abuse from intimate partners are significantly more likely to have had sexually transmitted diseases. For women who have been trafficked into sex work, the risks of HIV and other sexually transmitted diseases are likely to be particularly high. 6.3 Mental Health Sexual violence has been associated with a number of mental health and behavioral problems in adolescence and adulthood. In one population-based study, the prevalence of symptoms or signs suggestive of a psychiatric disorder was 33% in women with a history of sexual abuse as adults, 15% in women with a history of physical violence by an intimate partner and 6% in non-abused women.15 Sexual violence by an intimate partner aggravates the effects of physical violence on mental health. 6.4 Suicidal Tendencies Women who experience sexual assault in childhood or adulthood are more likely to attempt or commit suicide than other women. The experience of being raped or sexually assaulted can lead to suicidal behaviour. A study of adolescents in Brazil found prior sexual abuse to be a leading factor predicting several health risk behaviours, including suicidal thoughts and attempts to commit suicide. Experiences of severe sexual harassment can also result in emotional disturbances and suicidal behavior. A study of female adolescents in Canada found that 15% of those experiencing frequent, unwanted sexual contact had exhibited suicidal behavior in the previous six months, compared with 2% of those who had not had such harassment.

14 Campbell, J. C., Women Gynaecologic Health, pg 318, 1999 15 Mullen P. E. et al., Long-term Effects of Child Sexual Abuse. Issues in Child Abuse Prevention – National Child Protection Clearing House Issues Paper, Published by the Australian Institute of Family Studies, No. 9, 1998

24 | P a g e

ISSN No. 2581-7949

7. CONCLUSION & SUGGESTION:

Whenever women got sexually assaulted, raped, harassed or sold all their dreams hit the grounds as they cannot face the real world because of our society’s mentality. In backward area if such act was committed than the society blames the girls for such act. On the other hand, an educated family knows how to respond to such things and how to save their girl form the evils out there. They support the girl/women properly, lodge the report in police and fight back with their full power to get justice. In every woman’s life they have faced discrimination at almost every point of life. Such situation arises in the cases of sexual offences, almost every woman in a family somehow faces the sexual offence or get sexually assaulted either by the family member or by a stranger. Mainly people has to change their mind set and to be aware about the gravity of act committed against the women All the laws made are of no use if we cannot change our way of thinking. Every girl was stared at public places because of cheap mentality. From birth of a girl till her death she has faced some kind of sexual harassment or assault acts at least once in their lifetime. It is evident that no law can eradicate the crime from its root completely but a good law is one which creates deterrence to the perpetrators to emulate the crime. Since passing of the Criminal Law Amendments Act 2013 still many cases in a year have been filed of sexual offences in India but the positive effect of this is sexual offences have declined expeditiously. This means better late than never government has succeeded to some extent to provide safe and secured environment to women.

25 | P a g e

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 ISSN No. 2581-7949 Acid AtAcidtack prAttacoductk oprof 201du3 cAtm oefn 20dm1e3nt Am: Ae criticalndmen studt : y and A critical studyobser anvadtion ob inse SrvaAARCtion cou in nSAAtriesR C countries

Naman Shukla1 Krishna Pandey2 1 Abstract Naman Shukla ABSTRACT 2 During the most recent decade, India has been seeing a disturbing developmentKrishna of acid P aandeyttack, particularly on women. Acid brutality is a horrifying wrongdoing submitted generally against women, with an aim to distort or execute her. It can likewise be known as the sexual orientation- Dbuarsinged sa vtheager mosty agains rt ewomcenen.t decadAs indiceated, India by the has Nati onbeenal Com seeingmission oaf Idistundia Arcbingid Atta cdek isv el- "a demonstration of tossing corrosive or utilizing corrosive in any shape on the casualty with the opment of acid attack, particularly on women. Acid brutality is a horrifying goal of or with the information that such a man is probably going to cause to the next individual wpreongdoingrpetual or incomplet submite htaedrm orgene distortionrally or against disfigura twionomen, to any piewithce of an the aimgroup t oof dissucht ort orind eixvidualecut”.e Young her. woIt mcanen a rlikewisee biting the dusbet orkn doefownrmed as e athech da ys ebexualcause oofr aiecidn attatation-basedck. Young women have lost their lives while numerous are battling with wounds who have survived these savagery against women. As indicated by the National Commission of awful assaults by frustrated sweethearts by those looking for vindicating against another family by Indiadesirous Acid associ Attackates. T hisis p"aaper demonst focuses onr ahotionw the of 201 t3ossing amendm cento rhraosive chveang ored utilizingthe course ocf or- rosidirevcetion. in T ahins yp ashapeper also focu ons esthe on tcasualhe situationty pwithrevaili ntheg in thegoal neighboring of or withcountrie thes to Iinndifao i.rema. - SAARC. The paper shall be based on the review of various literature on the concerned subject matter. tion that such a man is probably going to cause to the next individual per-

the group of such individual”. Young women are biting the dust or de-

formed each day because of acid attack. Young women have lost their

lives while numerous are battling with wounds who have survived these

awful assaults by frustrated sweethearts by those looking for vindicating

against another family by desirous associates. This paper focuses on how

the 2013 amendment have changed the course of direction. This paper

also f ocuses on the situ ation prevailing in the neighboring countries to 1 LL.B. (fifth year), FairField Institute of Management and Technology- School of Law, New Delhi India2 LL.B .i. (efif.t hSAA year), RFaiC.rFi Teldhe Ins tpaperitute of M ashallnageme nbet an dbased Technolog ony- Sc thehool o fr Leviewaw, New Deoflh vi arious litera- 26 | P a g e tu re on the concerned subject matter.

1 2 http://legalpediajournal.com ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

1. INTRODUCTION

Women constitute an important part in the society. They are responsible for giving birth to a life but unfortunately, they are made to lose their lives in name of different brutalities committed against them. Whenever a woman decides to raise her voice against her substandard position in the patriarchal society, she is shunned by different means; either by acid, physical abuse or by burning her to death.

Wrongdoing, Crime, Crime, wherever the word wrongdoing has been captivated. A little word 'wrongdoing' has made such a great amount of essentialness in the life of others that everybody has just a single word in their mouth. Who are in charge of such wrongdoing? To whom we can fault? The basic answer we the general population. Wrongdoing isn't something which has been made by God; it is the animal of individual. Individuals are in charge of the intolerable wrongdoing which we confront today. Wrongdoing isn't something which is new for us yet it's simply that the method for doing wrongdoing has been transformed. In urban Areas, some time ago individuals utilize corrosive for family unit reason however now crafted by corrosive has changed his direction and utilized for pulverizing the life of individuals.

The ACID ATTACK is the most horrendous type of wrongdoing in the public. Corrosive assault has its precarious ascent in recent years and as normal the greater part of the casualty are ladies and just ladies. The terrible demonstration of assaulting individuals with corrosive has been occurring crosswise over various parts of nation. Man has picked an elective type of activity to misuse the life of ladies. Hydrochloric corrosive and Sulfuric corrosive which are effortlessly accessible in the market are utilized for corrosive assault which softens the skin and even bones of the casualty. Corrosive assault is such a shocking type of wrongdoing which makes the life of the casualty hopeless.

 Meaning of Acid Attack 1. Acid throwing is called an acid attack. Defined as the act of throwing acid or a similarly corrosive substance on to the body of another within the intention to disfigure, maim, torture, or kill. Perpetrators of these attacks throw acid at their victims, usually at their

27 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

faces, burning them, and damaging skin tissue, often exposing and sometimes dissolving the bones. 2. Acid attack can be viewed to mean “any act of throwing acid or using acid in any form on the victim with the intention of or with knowledge that such person is likely to cause to the other person permanent or partial damage or deformity or disfiguration to any part of the body of such person .Though acid attack is a crime which can be committed against any man or woman, it has a specific gender dimension in India. Most of the reported acid attacks have been committed on women, particularly young women for spurning suitor for rejecting proposals for marriage, for denying dowry etc.3

 Reasons for Attack

The Law Commission of India in its 226th report has asserted that the majority of acid attack

victims are women –

“…particularly young women for spurning suitors, for rejecting proposals of marriage, for

denying dowry etc. The attacker cannot bear the fact that he has been rejected and seeks to

destroy the body of the woman who has dared to stand up to him.”4

An eminent academician Afroza Anwary in his investigation accentuated that how acid is utilized by men on ladies as a characteristic of their manliness and prevalence over them and over "keep ladies in their place"5

Acid Attack are utilized as a weapon to quiet and control ladies by devastating what is built as the essential constituent of her character.

Anwary in his investigation had additionally kept up that in a man-centric and traditionalist society, overemphasis is laid on the marriage of a young lady. Her virginity and reasonable composition are the most critical elements to be considered for her reasonableness in the

3 National Commission of India, July 2009 4 226th Report, Law Commission of India, Proposal for the Inclusion of Acid Attacks as Specific Offences in the Indian Penal Code and a Law for Compensation for Victims of Crime 7 (July 2009) 5 Afroza Anwary, Acid Violence and Medical Care in Bangladesh: Women’s Activism as Carework, 17 Gender and Society 305, 306 (2003).

28 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

marriage advertise and, in this manner,, her contribution to a sentimental relationship before her marriage is an abomination.6 At the point when pernicious darlings are turned down for marriage by the young lady or her family, they depend on corrosive assault for retaliation. There is likewise a monetary viewpoint to corrosive assaults in perspective of globalization. The budgetary autonomy of ladies in a public of jobless men makes opposition in them.

"Breaking down financial conditions, high joblessness rates among male providers, the expanding number of landless family units, and the absence of agrarian work for male workers" are the significant explanations behind their hatred. Accordingly, ladies who are loaded with the onus of winning for the family are frequently influenced a casualty of corrosive by their spouses when they to neglect to satisfy their desires as homemakers in their traditional sexual orientation parts. Property debate are another reason for corrosive assaults on ladies. The inspiration for corrosive assaults on ladies can be ascribed to different components and emotions. A few culprits utilize corrosive to contaminate and spoil the casualty's body as a declaration of cognizant outrage, trying to corrupt them. Others feed their profound situated sentiments of inadequacy and uncertainty by communicating their prevalence and expert by tossing corrosive on ladies, with an end goal to display their everlasting control over the lady's destiny. On the other hand taking everything into account, one might say that corrosive assaults are utilized by men as a medium to set up their prevalence and control over them and over keep them generally in a condition of dread.

 Effect

Acid Attack devastatingly affects the human body, regularly for all time blinding the casualty. The outcome being the powerlessness to do numerous regular errands, for example, working and notwithstanding mothering are rendered to a great degree troublesome if certainly feasible.

As per the Acid Survivors Foundation in Pakistan, there is a high survival rate among casualties of corrosive assaults. Subsequently, the casualty is looked with physical difficulties, which require long-haul careful treatment, and mental difficulties, which require inside and out intercession from therapists and advisors at each phase of physical recuperation. The casualties are regularly left

6 Acid violence as on www.acidviolence.org/index.php/acid-violence

29 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 with no legitimate plan of action, restricted access to restorative or mental help, and have no way to help themselves.7

1. PHYSICAL- Acid eats through two layers of the skin, i.e. the fat and muscle underneath, and here and there eats through deep down as well as even break up the bone. The profundity of damage absolutely relies upon the quality of the corrosive and the term of its contact with the skin.

At the point when tossed on a man's face, corrosive quickly eats into eyes, ears, nose, and mouth. Eyelids and lips may consume off totally. The nose once in a while dissolves, shutting the nostrils, and ears wither up. Corrosive can rapidly demolish the eyes, blinding the casualty. Skin and bone on the skull, brow, cheeks, and button may disintegrate. At the point when the corrosive sprinkles or dribbles over the neck, chest, back, arms or legs, it consumes wherever it contacts. The greatest impending peril for casualties is breathing disappointment. Inward breath of corrosive vapors can make breathing issues in two different ways:

I) By causing a noxious response in the lungs. ii) By swelling the neck, which contracts the aviation route and chokes the casualty.

At the point when the consumes from a corrosive assault recuperate, they frame thick scars which pull the skin tight and can cause distortions. For example, eyelids may never again shut, the mouth may never again open, and the jaw moves toward becoming welded to the chest

2. PSYCHOLOGICAL - Acid ambush survivors confront numerous psychological wellness issues upon recuperation. Acid savagery casualties have been accounted for with more elevated amounts of nervousness, dejection, because of their appearance. As indicated by the Rosenberg Scale, the ladies revealed brought down confidence and expanded reluctance, both when all is said in done and in the social circle.

3. SOCIAL AND ECONOMIC- Acid attacks usually leave victims handicapped in some way, rendering them dependent on either their spouse or family for everyday activities, such as eating and running errands. They face a lifetime of discrimination from society and they become lonely. These dependencies are increased by the fact that many acid survivors

7 Acid Violence as on www.acidviolence.org/index.php/acid-violence

30 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

are not able to find suitable work, due to impaired vision and physical handicapped. As a result, divorce, abandonment by husbands is common in the society. Moreover, acid survivors who are single when attacked almost certainly become ostracized from society, effectively ruining marriage prospects. They are embarrassed that people may stare or laugh at them and may hesitate to leave their homes fearing an adverse reaction from the outside world. Victims who were not married are not likely to get married and those victims who have got serious disabilities because of an attack, like blindness, will not find jobs and earn a living. Discrimination from other people, or disabilities such as blindness, makes it very difficult for victims to fend for themselves and they become dependent on others for food and money.

 Statistics

There are no different measurements for corrosive savagery cases in India till mid 2013 on the grounds that the Indian criminal Law did not remember it as a different offense. With the revision in Indian Penal Code in February 2013, occurrences of corrosive assault are presently being recorded as a different offense under segment 326A and 326B. The primary information accessible after the alteration identify with the year 2014 when 349 cases were accounted for from all finished India.8

This is very nearly 300 for every penny more than the normal number of such cases saw amid the former three years. The years 2011, 2012 and 2013 saw 83, 85 and 66 cases being accounted for separately, however this number shot up to 309 of every 2014 – right around four times the normal number of corrosive assault cases in the previous years.9 Uttar Pradesh finished the rundown with 185 cases till November 2014, trailed by Madhya Pradesh with 53 cases.

Among the seven UTs, corrosive assault cases were accounted for just from Delhi, which saw 27 such cases a year ago. The quantity of people captured is just 208 as against 309 cases announced. While in UP there were no captures in no less than 66 cases, in Delhi just 7 people were captured in 27 cases. In the first three years 336 people were captured altogether 234

8 Statistics as on http://www.asfi.in/webpage.php?title=Statistics+&p_type=1&parent=76&catid=78 9 Acid attack cases as on http://indianexpress.com/article/india/india-others/309-acid-attack-cases-in-14-300- rise-in-3-yrs/#sthash.PgujdCmB.dpuf

31 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

cases.10 The most recent figures demonstrate that prior evaluations of likely number of cases at 100 to 500 for every annum made based on past records and correlation with neighboring nations where comparative financial conditions win, were maybe closer reality.

The Indian Journal of Plastic Surgery of Dec 2007 reasoned that in India alone "we would appraise 7 00, 000 to 800, 000 consume wounds yearly". There is a major probability of such cases being mischances as well as aftereffects of restricting and getting scorched. Indian Government measurements likewise demonstrate that an expected 7000 ladies are slaughtered and 18000 are damaged each year in India over share debate alone.11

2. CRIMINAL LAW (AMENDMENT) ACT. 2013: AN ANALYSIS

In India, often incidences of acid attacks grab the headlines of Indian media. Unfortunately, in India, there was no separate legislation to deal with acid attacks before the passing of The Criminal Law (Amendment) Act. 2013. The offence was registered under Sections 320, 322, 325, 326 and 307 of the Indian Penal Code (I.P.C).

SECTION 320 - GRIEVOUS HURT - The following kinds of hurt only are designated as grievous":-

Firstly- Emasculation

Secondly - Permanent privation of the sight of either eye.

Thirdly - Permanent privation of the hearing of either ear,

Fourthly - Privation of any member or joint.

Fifthly - Destruction or permanent impairing of the powers of any member or joint.

Sixthly - Permanent disfiguration of head or face.

Seventhly - Fracture or dislocation of a bone or tooth

Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space

10 Ibid 11 http://www.asfi.in/webpage.php?title=Statistics+&p_type=1&parent=76&catid=78

32 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

SECTION 322 - VOLUNTARILY CAUSING GRIEVOUS HURT - Whoever voluntarily causes hurt, if the hurt which the intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said to “voluntarily to cause grievous hurt. Explanation. - A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing he to be likely to cause grievous hurt of one kind; he actually causes grievous hurt of another kind. SECTION 325 - PUNISHMENT FOR VOLUNTARILY CAUSING GRIEVOUS HURT Whoever, except in the case provided for by section 335(Voluntarily causing grievous hurt on provocation), voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. SECTION 307 - ATTEMPT TO MURDER - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts - When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

On second April 2013, the Indian Penal Code was changed with the death of 'The Criminal Law (Amendment) Act, 2013. The correction brought about the addition of Sections 326A and 326B particularly to deal with corrosive viciousness.

SECTION 326 A states – Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine.

33 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim.

Provided further that any fine imposed under this section shall be paid to the victim.

SECTION 326 B states – Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

2.1.COMPENSATION FOR ACID ATTACK SECTION 357 B has been newly inserted in CrPC which reads as :

"The compensation payable by the State Government under section 357A shall be in addition to the payment of fine to the victim under section 326A or section 376D of the Indian Penal Code."

2.2.FREE MEDICAL TREATMENT

SECTION 357 C has been newly inserted whereby all hospitals, public or private are required to provide first aid or medical treatment free of cost. The section reads as:

“All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code and shall immediately inform the police of such incident.”

Aside from the above enactments, The Supreme Court of India has given state specialists three months to actualize new principles to control over-the-counter offers of acids, which have been utilized to deform, debilitate and even kill individuals, especially ladies, for quite a long time. The zenith court has coordinated each of the 29 states and seven association domains to issue licenses to retailers offering corrosive. They are currently required to keep points of interest like the amount sold and the addresses of purchasers, who should introduce photograph recognizable proof to buy acids. The retailers are required to pronounce the measure of corrosive being supplied to the police

34 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

and any instance of disappointment in doing as such would prompt undeclared stock being reallocated and a fine of up to 50,000 rupees ($840). It has additionally banished anybody younger than 18 from acquiring acids like hydrochloric, sulfuric and nitric. These acids, can consume tissue, are effortlessly accessible in looks for as meager as 20 rupees ($0.33) a liter12

3. SUPREME COURT ON ACID ATTACK:

As the wrongdoing of acid attack has expanded from past, so to put a stop to the developing number of corrosive assaults the Supreme Court has put restriction on offering corrosive.

After the main instance of Laxmi v UOI12, the Supreme Court passed a request to put restriction on offering of corrosive in shops. For anticipating corrosive assaults, the Supreme Court has totally denied the counter offer of the concoction except if the dealer keeps up an account of the address and different points of interest of the purchaser, and the quantum. Merchants would now be able to just offer the substance after the purchaser demonstrated an officially sanctioned photograph character card and subsequent to indicating the motivation behind buy. The merchant ought to present the subtle elements of offer to the neighborhood police inside three long stretches of the exchange. Corrosive ought not be sold to any individual under 18 and all stocks must be pronounced with the neighborhood sub-divisional judge (SDM) inside 15 days. Undeclared stocks could be reallocated and the defaulter fined up to Rs.50, 000. Corrosive assault is presently a non- bailable and discernment offense.

Laxmi of 22 years of age, who was a corrosive assault survivor was sitting tight for a transport in Delhi's tony Khan Market in 2005, when two men poured corrosive on her after she declined to wed one of them, abandoning her deformed. Despite the fact that the casualty and her folks were poor they were luckily helped by a supporter who bore the medicinal costs approximating to Rs. 2.5 Lakhs. Be that as it may, even after 4 plastic medical procedures the casualty's physical appearance stays horrendous and numerous more medical procedures would be required to show up a similarity of what it was. The casualty can obviously never look as she did the assault.

The Supreme Court guided all states to pay corrosive assault casualty Rs. 3 lakh towards restorative treatment and aftercare recovery and Rs. 1 lakh inside 15 long stretches of an episode and the

12 (2014) 4 SCC 427

35 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

adjust inside two months from that point. Alok Dixit, Founder of Stop Acid Attack says that the good thing that has left it is the remuneration yet that is for the young ladies will's identity assaulted later on.

4. ACID ATTACK AND SAARC :

No nation on the planet is immaculate by the acid attack. From created countries like the United States of America, the United Kingdom to the creating countries like India, Bangladesh and so forth, corrosive assaults are pervasive. In spite of the fact that the dominant part of assaults occurs in the landmass of Asia and Africa. As the corrosive assaults cases ascended in number throughout the years, the nations over the world wanted to outline stringent laws to control such kind of brutality. The enactment on corrosive viciousness in the nations where the most number of such assaults happen are –

 BANGLADESH

Bangladesh reports the most elevated number of corrosive assaults on the planet. There was a sudden increment in number of corrosive assault cases in Bangladesh in the mid 1990s. In 2001, 340 cases were accounted for which got to 336 cases in 2002. The administration passed The Acid Offenses Prevention Act and The Acid Control Act in 2002 to check the expanding corrosive brutality in the country. The Act13 rebuffs the guilty party with a capital punishment or thorough discipline for life with the fine of one lakh Takka if there should be an occurrence of death14 or finish or fractional mutilation of face or sexual organ of the casualty. On harm to any piece of the body of the casualty, thorough detainment of 7-14 years is granted to the perpetrator.15 what's more, any individual who tosses or endeavors to toss corrosive on any individual is thoroughly detained for 3-7 years alongside a fine of 50,000 Takka regardless of whether no physical or mental damage is caused.16The Act likewise addresses the issue of postponement of arraignment of cases by allocating settled time for examinations. It gives a greatest of 60 days for examination, fizzling which lawful move is made against the researching officer. It additionally expresses that the preliminary of the case ought to be finished inside a most extreme of 90 days. The Acid Control

13 Acid Offences Prevention Act, 2002. 14 S. 4, Acid Offences Prevention Act, 2002. 15 S. 5, Acid Offences Prevention Act, 2002. 16 S. 6, Acid Offences Prevention Act, 2002.

36 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

Act manages confining and controlling the deal and supply of corrosive in Bangladesh. A 15-part National Acid Control Councils have been built up around the nation to make a move to uphold the laws with respect to corrosive deals and to aid appropriate treatment, announcing and restoration of casualties.

 NEPAL

Under Nepal's legitimate framework, there is no exact corrective arrangement for corrosive savagery. Under the present laws, culprit is punished under arrangement of hurt and at fault crime of Muluki Ain. Number 14 of the part Hurt, invests with discipline for making hurt the body by copying substance like corrosive. At the point when no grave damage is caused to the individual, culprit is granted with two months of detainment and a fine of Rs 500. A fine of ameagre aggregate of Rs 2,000 is forced on consuming nose or eyes of a man. Notwithstanding this,no restorative and financial help is given to the casualties by the legislature. The present law on corrosive brutality neglects to give any extreme discipline to the offenders and is in this way, ineffectual to check such assaults.

 PAKISTAN

Pakistan passed the Acid Control and Acid Crime Prevention (Amendment) Act, 2010 which revised the corrective code of the nation to include segment 326A and 326B which accommodates life detainment or at least fourteen long periods of detainment with a gigantic fine of one million rupees to any individual who makes shocking hurt any individual by means of corrosive. The Acid Throwing and Burn Crime Bill, 2012 develops the Acid Control and Acid Wrongdoing Prevention (Amendment) Act, 2010. It gave an appropriate and definition for corrosive assault and furthermore accommodated examination, security of observers and also the acknowledgment of restorative, lawful and money related help for casualties and their dependants. The Act likewise criminalizes an endeavor to perpetrate corrosive savagery and forces a commitment on officers for legitimate examination of the assault. To advance powerful execution of law, the demonstration gives the arrangement to foundation of Acid and Burn Crime Monitoring Board and depicted its part and duties.

37 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

5. CONCLUSION & SUGGESTIONS:

The accomplishment of any law is controlled by its usage. Most stringent of laws will be of no benefit on the off chance that they are not appropriately executed. The Criminal Law (Amendment) Act, 2013 has gotten positive changes the laws against corrosive savagery. Before the Act, no arrangement of strict discipline was there to rebuff the guilty parties and either no or a remuneration of an exceptionally pitiful sum was utilized to be given to the casualty. The revision made exceptional laws to rebuff the guilty parties and furthermore accommodated the arrangement of giving restorative guide to the casualty.

In any case, encircling of laws is never enough except if it is appropriately executed. The Indian Judicial Framework is over-burden with cases. It takes a very long time for the preliminary to happen. Also, legal advisors attempt to defer the arraignment of the blamed by asking for the Court to expand the date of preliminary. Subsequently, case stays pending for a considerable length of time and the criminal isn't rebuffed for his represents a long time disregarding the stringent laws. Along these lines, a different Tribunal or Bench can be shaped to take care of the instances of corrosive assaults. Such a body will be solely held for such cases which will guarantee snappy deliverance of equity and help to the casualty. The choice of the Tribunal or Bench ought to tie and last which will spare the casualty from different claims in various courts of the nation.

Notwithstanding the stringent correctional laws, arrangements have likewise been made to control the offer of corrosive. The acids utilized for assaults are effectively accessible as they are utilized as a part of household use also concerning logical and look into purposes. An observing framework ought to be shaped to check the compelling execution of the principles by the general population.

Numerous individuals in the nation (especially the businesspeople and retailers) because of absence of education or numbness have no learning of the new principles of direction at a bargain and buy of corrosive.

Steps ought to be taken by the administration to make individuals mindful of the new guidelines. The Criminal Law (Amendment) Act, 2013 is an appreciated demonstration which has brought positive and powerful changes. Equity can never be conveyed to the casualty except if the law is legitimately executed. Subsequently, steps ought to be taken to viably execute the new laws to check such a savagery.

38 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

An acid attack has dependable outcomes on the life of the casualty who faces ceaseless torment, lasting harm and different issues for whatever is left of her life. Their living winds up like a canal; they turn out to be excessively damaged and humiliated, making it impossible to leave their home and complete straightforward undertakings not to mention get hitched, have kids, land a position, go to class, and so on. Regardless of whether they will seek after a typical life, there is no certification that society itself will regard them as ordinary people given their appearance and incapacities after an assault. They will most likely be unable to work, or have the capacity to discover a vocation, and along these lines ceaselessly battle to survive. In this way, to check assaults on women brutal discipline ought to be given to individual with the goal that they feel the same as the casualty feels.

39 | P a g e

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 ISSN No. 2581-7949 GENDER EQUALITY: ACCESS TO WORSHIP PLACES GENDER EQUALITY: ACCESS TO WORSHIP PLACES Ruchita Sanadhaya1

ABSTRACT

Men and women are two halves of Humanity, but the Gender Equality is still a long way to 1 Ruchita Sanadhaya ABachievSe.TRACT While talking about gender equality, there are many issues out of which one is “Why Men alone are allowed to place of Worship and not Women?” Is this not injustice done with MenWome andn? Thweomenre is no a lraew tthatwo prhalevevntses aof W Humanioman fromt ye,nte butring the a pla Gcendere of Worship. Equali Dtoy is women not have any rights to worship a deity? Article 14 of our Constitution of India states stillthat a “longThe st awtea shay tlol nachieot denyv anye. W pehilerson talequalkingity b aboutefore the genderlaw or the equali equal protyt, ethectionr eo f are malanwy w issuesithin the outterri tofory whichof India. one” Ge ndise “r Wbahseyd Mdiscenrim aloneination raerpree sallentos wtheed u gtloy fplaace coef of WorshipIndian S oandciety . notThis Wpaomen?per highl”i g htsIs thisthe Rnotight injustiof womcene todone worship with and W itomen?s challen gTehes. re Every human being has the right to pray then why are women banned from entering and is ofnoferi lnagw th ethir parta ypersre avned nwtsorshipping a Woman the de iftryom? Fig hten fotre Jrustingice ab ypla femalcee orof c rWy foorshir gendpe.r Do womenequality notis not h theav efi gahtn ya graiginsht tsmen. to Iwt isorship the fight a deiagainsty?t old A rtrticleaditions 14 that of ourhave Cchonstituained - tionthem. of I ndiaIndia nee dsst toat desea ctthivaatet the“T hegend stera intequ shallality. Tnothe w adey ton ovy earcnoym eperson this probl eequalim is a ty nationwide revolution. Is the Gender Equality a reality or just a topic to endless discussion before the law or the equal protection of law within the territory of India.” and debates without reaching to any conclusion? But still after so much cry and hue, women Genderhave suc basedceeded in disc attaininriming thea vitionctory rbepy greesettingn thets atheccess ugly to plac faes coef woforship. Indian Society.

This paper highlights the Right of women to worship and its challenges.

Ev ery human being has the right to pray then why are women banned

needs to deactivate the gender inequality. The way to overcome this pr oblem is a nationwide revolution. Is the Gender Equality a reality or just a t opic to endless discussion and debates without reaching to any conclu- sion? But still after so much cry and hue, women have succeeded in at- taining the victory by getting the access to places of worship.

1 B.B.A.LL.B.(H), IV year Student, Modi University, Rajasthan

40 | P a g e

1 B.B.A.LL.B.(H), IV year Student, Modi University, Rajasthan http://legalpediajournal.com ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

1. INTRODUCTION: -

"You can tell the condition of a Nation by looking at the status of its Women”. - Jawaharlal Nehru

Socially the word ‘Gender’ refers to the socio- cultural definition of men and women. The concept of Gender Justice is a recent discovery of law. From time immemorial society has been male-dominated, with the women relegated to the background and their rights trampled upon. The right to freedom of religion and practicing, professing and propagating it freely, subject to reasonable restrictions stated under the Article 25 and 26 of the Indian Constitution, forms the backbone of the secular Country. The preamble of Indian Constitution has the word ‘secular’ and to ensure gender equality is also a salient feature of our Constitution. Who thought that Right to pray and Worship would be something that would be debated upon, Right to Worship would be an issue for gender equality.

In India, there are a few places of worship that prevents women from entering, but why so? Recent cases involving the Shani Shingnapur Temple in Maharashtra, Shabrimala Temple in Kerala, Haji Ali in Mumbai, where entry and access to the inner shrine is denied to women, brought the issue of Women right to Worship in focus. Justice Misra observes that the constitution rejects discrimination based on gender, religion and caste. Justice Waghela said “that there is no law that prevents entry of women in any place of worship. If you allow men then you should allow women also. If a man can go and worship the deity inside the temple then the women also have equal rights to access and perform holy rites. It is the state government`s duty to protect the rights of women.” Did the Vedas, mythology, scriptures or Upanishads ever discriminate between men and women?

In India, temples and mosques both discriminate against men and women in respect of right to pray, but it is only the churches where both men and women enjoy equal rights to pray.In a democratic country like India, these early traditions and customs not only disrespects the women but also shows that we still have an patriarchal outlook towards the society.2

The following places of worship discriminate between the men and women and prohibit entry of women:

1.1 SHANI SHIGNAPUR TEMPLE:

2 https://www.sirg.co/local/women-equal-rights-worship-temple-men-observes-bombay-high-court/

41 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

The debate over equal access to women in places of worship increased due to an incident when last year a women tried to enter the Shani Shingnapur temple, breaching the old practice of restricting women`s entry. This made the temple authorities suspend seven security men and conduct purification rituals of the temple. The Bhumata brigade led by Trupti Desai vowed to breach the ban and fight for gender justice.3

Why is a woman between the ages 10-55 not allowed inside the temples? Why are they considered impure? Why was a purification ritual done in Shani Shingnapur temple when a woman entered the temple? Why was it considered a Sin? Worshipping can’t be a sin then why was it considered as a sin when she entered.

The court was hearing public interest litigation (PIL) by Senior Advocate Nilima vartak and activist Vidya Bal challenging the prohibition of entry of women in the Shani Shingnapur temple in the Ahmednagar district of Maharashtra.4 The petition of the Public Interest Litigation (PIL) seeks entry of women not just in the temple but also inside its sanctum sanctorum. The petition also states that the prohibition is arbitrary, illegal and in violation of fundamental rights of the citizens of India. In observation, it is stated that if a man can enter, so can a woman. It is duty of the state government to protect the rights of the women as said by the division bench of high court. The division bench also directed the government to make publicity of the Maharashtra Hindu Place of Worship (Entry Authorisation) Act, 1956 so as to make people aware of the act and its provisions. If any temple or person prohibits any person from entering the temple then he or she faces a six months imprisonment5.On 30th march 2016, the Bombay high court presented the view that there is no law that can restrict a woman access to places of worship. The verdict decided by the Bombay High Court on 8 april2016 that the government will ensure that women are allowed to enter the temple as well as sanctum sanctorum and also worship the deity is proved to be a significant victory towards gender equality for the people fighting for its cause. It will be after a long time that women would be allowed to enter the inside sanctum of the temple after the old tradition that banned women from entering the temple and later conditionally restricted men too. Why has there been a tradition of prohibition on women when there is fundamental right of equality present in our Constitution?

3 http://www.dnaindia.com/india/report-why-should-men-have-lone-access-to-place-of-worship-2196076 4 http://www.dnaindia.com/india/report-why-should-men-have-lone-access-to-place-of-worship-2196076 (accessed on 27th May 2016) 5 Under the Maharashtra Hindu Place of Worship (Entry Authorization) Act, 1956

42 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

The fight for gender equality in respect of access to places of worship in India has opened a topic for a wider debate, the debate on women`s right in India. It has also tended in the twitter with the hashtag #RighttoPray. Celebrities and other people have put forward their views and arguments to this discussion.

Faith is what brings us to a temple. All these rules are manmade. God doesn't discriminate between his devotees. Temples should respect a devotee's faith. —Suruchi Adarkar Women who feel like going inside the temple and offering prayers should be allowed and those who feel otherwise shouldn't go in. That's it. It is all about one's faith in god. — Deepali Pansare

"It is great that we ask these questions now. Men and women should get equal opportunity at work, social life and everywhere. We are saying how unfair it is... I think we will see the changes in our lifetime"

—Vidya Balan

"The entry of women into the famous Shingnapur shrine, which is devoted to Lord Shani, will drive more rapes."

—Dwarka-Sharda Peeth Shankaracharya Swaroopanand Saraswati

"We will meet Prime Minister Narendra Modi and urge him to enact a law to put an end to such restrictions on worshipping"

— Trupti Desai Bhumata Ranragini Brigade chief

"The solution is based on the Tirupati Balaji model of darshan where no one, be it a man or woman, is allowed in the inner sanctum. Thus, there will be no gender discrimination"

— Sri Sri Ravi Shankar Founder of Art of Living 1.2 SABRIMALA TEMPLE:

“Why can you not let a woman enter? What is the basis on which the entry of women is prohibited? What is your logic? Women have to choice whether to go or not to go to worship at Shabrimala, but that is her personal choice,” Justice Dipak Misra, who headed a three-

43 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 judge Special Bench, pulled up the Travancore Devaswom Board, which manages the shrine.6 “Any god or goddess can be worshipped anywhere by anyone. The power is all around us, omniscient. But you have structured god into an idol. Women want to come to your temple and worship him there ... Why you don’t allow them,”7

The Shabrimala temple denies entry to females between the age group of 10-50 years stating that menstruating women are impure. The Shabrimala temple authorities say that the ban on women`s entry has been practiced since centuries and it has become a tradition which is necessary for the rituals related to the temple`s celibate deity, Ayappan8. The temple authorities even went to the extent of that women between the age group of 10-50 years shall only be allowed if there is a machine to check if any female entering the temple is menstruating or not.9 The Travancore Devaswom Board (TDB) which administers the temple is responsible for enforcing this custom.10

The judgement cited in the case of S.Mahendran vs The Secretary, Travancore (1991)11 12 is upholding the ban for entry of women at the Shabrimala Shrine. Smt. S. Chandrika13 said that entry of young girls in the temple was not against the custom and practices of the temple. But during that time High court gave the final order that restriction of women of certain age was in respect of the customs and traditions and do not violate article 15, 25, 26 of our constitution.14

The ban is “grave” as it endangers gender justice said justice Dipak Misra. “There is this tradition, we understand, of not allowing women of a certain age. But what we will decide is whether this tradition, this source of the ban, overrides constitutional provisions... What right do you (temple authorities) have to forbid women from entering any part of the temple? This is a class grievance from women denied their right to worship,” Justice Misra said. At one point, Justice Misra asked senior advocate K. Parasaran, who is assisting the court, what the

6http://www.thehindu.com/news/national/do-you-have-a-constitutional-right-to-prevent-women-entryat- sabarimala-sc-to- devaswom/article8092924.ece?utm_source=InternalRef&utm_medium=relatedNews&utm_campaign=RelatedN ews (Visited on 19.08.2018 at 01:35 P.M.) 7 Justice Dipak Misra asked. 8http://www.thehindu.com/news/national/sabarimala-entry-ban-gender-equality-is-a-constitutional-message- says-sc/article8490310.ece (Visited on 18.08.2018 at 04:55 P.M.) 9 Said by Prayer Gopalkrishnan, president of the board that manages the temple. 10 https://indiankanoon.org/doc/1915943/ (Visited on 19.08.2018 at 01:25 P.M.) 11 AIR 1993 Ker 42 12 https://indiankanoon.org/doc/1915943/ (Visited on 19.08.2018 at 12:35 P.M.) 13 Former Travancore Devaswom Board Commissioner 14http://www.youthkiawaaz.com/2016/01/temple-entry-of-women-in-sabarimala-facts-by-elsa-oommen/ (Visited on 19.08.2018 at 06:15 P.M.)

44 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

“protocol” of greeting would be if “your mother, father, Kul guru and Kul purohit” are sitting in the same room. “The protocol is to greet the mother first,” Justice Misra himself responded.15Challenging the prohibition of females of certain age from entering the temple, it was said that there are women bramacharis too in this world, by Senior advocate Indira Jaising.

The SC is hearing a 10 year old petition filed by Indian Young Lawyers’ Association (IYLA) Ravi Prakash Gupta, member of the Indian young lawyers association who launched the petition against the Shabrimala temple said that in our Hindu religion, banning on the basis of age is not considered. He also said that they used to receive death threats over the petition.16 Gautam Bhatia, a Delhi based lawyer has offered interesting insights into the case. A senior Counsel17 said in the court that one should not just look from the worshippers point of view but one should also view from the angle of god that is to be worshipped, i.e. A celibate18.The supreme court of India on 11th January, 2016 asked the government of Kerala as to why women cannot be given entry into the Shabrimala Shrine. The SC declared that the Hindu temple ban on some women is unacceptable.

One incident that occurred at the temple is that when once an IAS officer, who happened to be women had to visit the temple to check the arrangements for the pilgrimage in her official capacity, was also denied entry on the pretext of being women.

The comment made by prayer Gopal krishnan regarding entry of women in the Shabrimala temple would only be allowed if a machine is invented to check the purity of the female worshippers. This comment created a huge protest by the young women in India and they shouted that menstruation is not unclean, polluting, impure or shameful. They even launched an online campaign on face book called ‘Happy to Bleed’. Aditi Gupta19 posted that “Mr. Prayer Gopal krishnan and all others who think that women are impure

15 http://www.thehindu.com/news/national/shabarimala-entry-ban-how-can-tradition-impede-womans-right-to- worship-asks-supreme- court/article8462982.ece?utm_source=InternalRef&utm_medium=relatedNews&utm_campaign=RelatedNews (Visited on 20.08.2018 at 01:55 P.M.) 16 http://www.reuters.com/article/us-india-women-religion-idUSKCN0X91Q1 (Visited on 20.08.2018 at 02:40 P.M.) 17 K.K. Venugopa 18 Lord Ayappan of Shabrimala temple. 19 Creator of website ‘Menstrupedia’ to educate young women and portray menstruation positively.

45 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 during their periods, don`t forget that it’s the same impurity that you survived on for nine months inside your mother`s womb20. The women`s groups have cited clauses from the Indian Constitution where one has equality before the law and it cannot be discriminated on the basis of gender.

1991 Judgment:

The 199121 Kerala High court judgment was held that the restriction was in accordance with the usage from the time immemorial and not discriminatory under the constitution. Upholding the restrictions, the High Court, in its judgment, said: “According to him [The Shabrimala Thanthri], these customs and usages had to be followed for the welfare of the temple. He said only persons who had observed penance and followed the customs are eligible to enter the temple and it is not proper for young women to do so."22Twenty-five years after the 1991 judgment, the Supreme Court has questioned the “logic” behind the restriction.

Instances:

In 2006, an astrologer23 conducted a ritual and found out that there were signs of women having entered the inside of the sanctum. Soon after this incident, a Kannada actor jayamala said that she in 1987 had entered and even touch the idol, while shooting for a movie. The last incident took place when 35-year-old women managed to get inside on December 2011.

1.3 HAJI ALI, MUMBAI:

Noorjehan Niaz, the co-founder of Bharatiya Muslim Mahila Andolan (BMMA), she refused to accept the ban on women’s from visiting the grave as a child she remembers visiting the famous Muslim Dargah, Haji Ali in Mumbai and offering her prayers at the grave. But when in 2011, when she visited the shrine she was refused to let enter into the grave whereas she was allowed to enter other areas. Later, she discovered from the trustees that females are banned to protect them from sexual attention and subsequently discovered that another reason for the ban was that it was a ‘sin’ for the menstruating women to go near the grave. The

20 Ibid 21 https://indiankanoon.org/doc/1915943/ (Visited on 21.08.2018 at 03:55 P.M.) 22 http://www.thehindu.com/news/national/will-sabarimala-temple-open-its-doors-to- women/article8489693.ece?utm_source=InternalRef&utm_medium=relatedNews&utm_campaign=RelatedNew s (Visited on 20.04.2018 at 04:55 P.M.) 23 P. Unnikrishna Panicker 46 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

BBMA in their petition demanded the ban to be lifted and pointed out that even the saints were born from wombs.

There are no explicit directions provided in the Quran against the women visiting the burial places of holy saints. Where women are banned from visiting the grave of the holy saint in the shrine of Haji Ali at Mumbai, there are few shrines like the Ajmer Dargah where women have equal rights as that of men to visit the grave of the holy saint. Such restrictions have also been practiced in the Nizamuddin Dargah in New Delhi, here women are allowed close to the door but not inside the chamber where the saint is buried.

1.4 RANAKPUR TEMPLE, RAJASTHAN:

The temple does not restrict women`s entry but specifies when and how a woman can visit the temple. Women on their periods are not allowed to enter the temple and also rules are mentioned regarding wearing western dresses and accessories. Temple requires the women to cover their legs till below their knees.

2. CONSTITUTIONAL VALIDITY AND ARGUMENTS:

The ban on women`s entry in the place of worship is violative of article 14(equality before law), 25 and 26 (freedom of religion) of our Indian Constitution. Our constitution needs to be amended so that provisions clearly states about equality between Men and Women in respect of access to place of worship so that women aren’t banned. It is said that the ban in Shabrimala temple is neither historical nor entirely religional but based on the decisions of the male established.

When women can be accepted as god, why can’t she worship? When women are not allowed in temples of male god then to create equality even men should not be allowed in the temple of female goddess. Supreme Court said that when god does not discriminate between men and women then why is there discrimination in the premises of the place of worship.

"What right does the temple have to forbid women from entering any part of the temple? Can you deny a woman her right to climb Mount Everest? The reasons for banning anything must be common for all.”24

24 Justice Dipak Misra, head of a three-judge bench

47 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

A big question has been raised on whether gender justice can be attained in places of worship. Why is a menstruating woman considered impure when we India worship Kamakhya Devi (the bleeding goddess25). If bleeding is the reason that prohibits the women from worshipping, then why does u worship a bleeding goddess? Stop worshipping her also.26

If this be so, then IYLA can argue that it is the duty of the state to guarantee a woman’s right to worship. The women devotees may ask the court to direct the state to take all necessary steps to guarantee their access and safety to the shrine. Interestingly, judgement in this case will open up issues pertaining to other religions also. There is a case pending in Bombay High Court, filed by Muslim women asking for the recognition of their right to enter the inner sanctum for worship at the Haji Ali shrine in Mumbai. The question of gender justice in religious institutions is the charter of state which is responsible to enforce the constitution. Being a secular state, the governments have not interfered in the matters of individual religions which are administered by their respective religious bodies. The ramification of judgement in this case will be then to find a solution which will advance the constitutional guarantee of equality, non-discrimination and freedom of religion.27

3. CONCLUSIONS: -

When god itself did not discriminate between men and women then what rights do the priests or the authorities of the place of worship have to discriminate between the male and female. It should be that both men and women should be allowed to access place of worship so that there is gender equality. India needs to reactive gender inequality and allowing women in places of worship is towards attaining gender equality.

There needs to be gender equality in relation to access to worship places to strengthen the concept of justice for all. There is no constitutional validity that prohibits or bans women from worshipping or entering any place. It is the fundamental right of women and also men, i.e. it is the Fundamental right of all to have conscience and to profess, propagate and practice any religion. It is within the constitutional framework of the nation, which allows both men and women to have equal access to places of worship. When female goddess can be

25http://www.scoopwhoop.com/inothernews/menstruating-goddess-kamakhya-devi/ (Visited on 22.08.2018 at 05:55 P.M.) 26 ibid 27 http://logos.nationalinterest.in/2016/01/the-question-of-gender-justice-in-religious-institutions/ (Visited on 23.08.2018 at 04:55 P.M.)

48 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 worshipped then why do we stop females from worshipping? Is all this not sex discriminatory? Why is this injustice in the country of equals restricted to female?

Gender justice is in fact ingrained in the sublime concept-equality. It implies that men and women should be treated alike before law and they should get equal protection of the laws. There is no lack of legislation, but lack of implementation of the same, gives rise to gender inequality. We need strong and sustained societal action, supported by proper public education. We are in 21st century; despite progress in direction of gender equality much is still required to be done. Will there be complete gender justice' for future tos answer?

The fight is not for women’s status but for human worth. The claim is not to end inequality of women but to restore universal justice.

4. SUGGESTIONS: -

1. Those who want to see the Gender Justice as a reality need to campaign for the vigorous enforcement of the Directive Principles including the Uniform Civil Code both by the central and state governments. 2. In the absence of a Uniform Civil Code28 and in the continued use of religion based customary law by different communities, the struggle for gender justice looks a long drawn one made difficult by partisan interpretations of religious freedom, minority rights and vote bank policies29. 3. To ensure gender justice - a) Enactment of new laws pulsating with concern for gender justice b) Effective and honest implementation of the enacted laws c) Professionalization and sensitization of police, prosecutors and judges. d) There are some corrupt elements in the system. They should be dealt with stringently and weeded out. If such changes are brought about, there is no doubt that the system will deliver gender justice in abundant measure to all without exception.

28 The Constitution of India, Article 44 29 Prof. (Dr.) G. Rajasekharan Nair, Gender Justice under Indian Criminal Justice System

49 | P a g e

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 ISSN No. 2581-7949

EMPOWERMENTEM OPFO WOMENWERMEN UTND OFER W INODMIEANN CONSTITUTION UNDER INDIAN CONSTITUTION 1 BySh Shrristyist Jyalan Jalan1 2 ABSTRACT Nidhi Sharma 2 Nidhi Sharma

WABomenSTR AconstituCT te almost half of the population in the world. Women have a

uniqueWomen position constitute in al mevoestr hya clfou ofn thetry population whether i nit theis de wovrelopeld. Womend, de hvavelopinge a unique or pos undeitionr de- in every country whether it is developed, developing or underdeveloped because she plays a different role in her life as daughter, wife, and mother etc. But the hegemonic masculine ideology made them suffer a lot as they were denied equal opportunities in different parts of the world. What does women empowerment mean? Women empowerment generally has five - components which are individual, economic, social, physical and psychological. The concept of ‘empowerment’ is closely related to gender equality and enter in to the process of decision are individual, economic, social, physical and psychological. The concept of ‘em- making. Empowerment is the process that makes a change over a period of time. The need of powomweremen empownt’ is ecloselyrment ar osrelea btecedau tsoe ofgender the gen equalider disctryim andination en taernd inmal toe domthei pnartoioncess in theof de- cisionIndian ma sockieintyg sinc. Empe anocwieentr metime.n tW isomen the parreo bceessing thsuppatr makesessed by a thei changer famil yo memver ab epers arndiod of society for many reasons. They have been targeted for many types of violence and time. The need of women empowerment arose because of the gender discrimina- discriminatory practices by the male members in the family and society in India. Through tionwom anden e malempow edominrment, iat tioncan bine possthei bleIndian to ch socieange thtye sinmalcee dom ancieinatnedt timcounte.r yW inomento the are beingequal lsuppy domriessednated c ountby rtheiry of richfamily econo membersmy. Empow andering socie wometny mforay maeasinlyy hreeasonlp to gsro. wT hey each and every member of the family without any extra effort. A woman is considered to be have been targeted for many types of violence and discriminatory practices by responsible for everything in the family so she can better solve all the problems from her own theend. male Empow memberserment of in the the wom familyen would and socieautomtayti cinal lIyndia. bring T hempowrougherm weomennt of e vemperyonoew. er- meWntomen, it canempow bee rmpossibleent is ve tryo nchangeecessary tothe mak malee the domin bright futuatedre ofcou then ftarmy iilny,t oso theciety equally and country. dominated country of rich economy. Empowering women may easily help to “Just as a bird could not fly on one wing only, the nation would not march forward if women are left behind.” considered to be responsible for- S ewvamierything Vivekanand in the family so she can better solve

all the problems from her own end. Empowerment of the women would automat- Keywords: Empowerment, gender equality, country

ically b r ing emp o w e r me n t of everyone. Women empowerment is very necessary 1 B.Com LL.B. 4th year, Mody University, lakshmangarh, sikar, Rajasthan to2 makeB.Com L theL.B. 4bthr igyeahr,t M futuody Ureni vofers ithety, la kfamilshmangya,r hsocie, sikar,t Rya jandasthan c ountry.

50 | P a g e the nation would not march forward if women are left behind.” - Swami Vivekanand

Keywords: Empowerment, gender equality, country

1 B.Com LL.B. 4th year, Mody University, lakshmangarh, sikar, Rajasthan 2 B.Com LL.B. 4th year, Mody University, lakshmangarh, sikar, Rajasthan http://legalpediajournal.com ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

1. INTRODUCTION: -

Women empowerment is not a fresh and new topic to discuss about. Over the past few years we have witnessed several organizations and activists raise their voice in support of women empowerment. The question for which always arises is that “Are women really empowered?” Most of you will be answering that Yes!!! Women are empowered; they are reaching heights of success and excelling in various fields by giving examples of women like Sania Mirza, Indira Gandhi, etc. But what actually is meant by empowerment? In simple words empowerment means equal treatment. That equal treatment which is mentioned in the constitution and everyone fights for it. Women are the magnificent creation of god, a multifaceted personality with the power of benevolence, adjustability, integrity and tolerance. The role of the women in the society is a measuring root and true index of its civilization attainment. Women is the builder and molder of a nation`s destiny3

“The hand that rocks cradle is the hand that rules the world.”4 The constitution is the fundamental law of the land. The Indian judiciary has played a pivotal part in protecting the rights of the women vehemently held certain, provision to be unethical , callous, cruel, detestable abhorrent unreasonable arbitrary and unconstitutional and an open insult to Indian womanhood. This decision elevated the status of working women to a new height. Women of India will reach zenith in their improvement to empower herself she needs to shine the dependency gain courage and break free all the chains of traditional constraints and limitations only then she will be able to relies her true beauty and power. Empowerment gives voice to voiceless. Women empowerment looks at basic women rights. Being empowered will enhance their self-confidence, their ability and willingness to challenge oppression. Women empowerment aims at eliminating discrimination and challenging gender inequality. Being empowered influences not only their lives but also the lives of men and children. Women empowerment is a positive concept. It wants to end their subordination and establish equality.

Our freedom fighters5 realized that as long as women of the country are not uplifted and granted status equal to men in all walks of life. Sarojini Naidu, Mira Ben, sucheta and Vijay

3 Rabindranath Tagore 4 W.R.Wallace ( the hand that rules the world) 5 Pundit Jawaharlal Nehru, Dr. Rajendra Prasad

51 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

Lakshmi were some of the leading women freedom fighters. In India, the conspicuous effort in the direction of gender equality began in the year 1947. With the formation of women’s committee to study the status of women in India, it brought out some alarming findings like: Continuously decreasing gender ratio (no. of females per 1000 males.)

Increasing gender disparities in prominent sectors like health, education, employment. Women negligible participation in the decision making process increasing rate of crime against women

"You can tell the condition of a Nation by looking at the status of its Women”. - Jawaharlal Nehru

The one who abuses a female forgets that he has come in this world only because of women. Citizens of our country should remember that without women world is incomplete. A women is the only person in the whole universe who can become a MOTHER, who can give birth to a child, god has given this blessing only to a women. Inequalities between men and women in the society generate lots of problems which become a big obstruction in the way to success of nation. It is the birth rights of the women to get equal value to the men in the society. To really bring empowerment, every woman needs to be aware about their rights from their own end. Though we have entered the new millennium, status of women has not improved, mainly due to traditional bias and prejudice towards that section of society. The woman being unable to sharpen her nails against the man takes the revenge of the trauma of her earlier life or ongoing period of life from the women of younger age, spatting all the venom on her. The truth remains that a man is never complete without a woman. One without the other has no place in the community of homosapiens. It is however most disturbing and sad that in most of the cases of violence against woman, it is the woman who plays pivotal role in the crime against the younger ones, the husband either acting as a mute spectator or as an active participant. A criminal is a criminal, whether man or woman. Moral values do apply to both. Do we need to redefine the moral values separately for man or woman? Please stop politicalizing the relationships of man-woman, husband- wife6. It is only recently that Women began to assert their rights and law recognized that men and women have equal rights. The concept of Gender Justice sprouted thus. In the past, women were branded as the

6 V.K. Dewan, Laws Relating to Cruelty & Offences Against Husbands.

52 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

weaker sex and denied many basic rights. As observed by K. RAMASWAMY, J in Madhu Kishwar v State of Bihar. In Githa Hariharan v Reserve Bank of India, the court gave a decision which ensures gender justice.7 Whatever law applicable to men is also applicable to women equally. However, some enactments may be intended exclusively for women to uplift the dignity and status of women in society. Hence, enactments relating to women are of two kinds; one equally applicable to both women and men and another specially intended to women only. The crux of the issue is that women who were denied equal status and rights with men in the past should be treated at par with men in all spheres of human activity.

2. HISTORICAL ASPECT: -

Women in the early Vedic period enjoyed equal rights to that of men in all aspects of life. That was known as a Golden period for women. She enjoyed fair amount of freedom and equality, during this period no man was allowed to perform any religious duties without his wife. There was no discrimination between a girl and a boy. But in the 6th century, the status of women tends to decline, various restrictions were put on women`s rights and privileges, birth of a daughter became a disaster, marriageable age too was lowered. In the medieval period, Indian women’s position or status deteriorated when child marriages and ban on remarriage of the widow become part of life. Women were also put behind the veil, polygamy and devdasi system had already spread by then. In the modern time the concept or traditions of sati, jauhar, purdah and devdas is banned, temple prostitution was banned. Many laws were enacted to eradicate social evils.8 However, some instances are still found in some remote areas of India. The Indian women still practice purdah in some communities and child marriage is still common in rural areas and is illegal according to current law9.

3. PRESENT SCENARIO: -

At present women`s empowerment is not only the most popular slogan of the contemporary age but also the need of the hour. The slogan is the outcome of several years’ consistent efforts in the direction of gender equality and gender justice. We say that our country is a

7 (1999)2 SCC 228 8 The commission of Sati (Prevention) Act, 1987 9 The prohibition of Child marriage Act, 2006.

53 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 democratic one, everyone is free to do whatever they want to do but still women are caged and restricted. Every day on the first page of a newspaper, we come across the headlines that read a newly born girl thrown in dustbin, minor girl raped, women burnt alive, etc. Today’s women are playing multi-tasking roles. In present day, a large number of women have attained dignity, individuality and respect in their respective field. They are free to join any service. In post independent India, women have played a significant role as teachers, doctors, judges, engineers, scientists, astronauts, or any other profession. They have even achieved high esteem in the world as former India prime minister, Indira Gandhi and former president Pratibha Patil. Not just in India but by becoming the first women president of the United Nations General Assembly, Vijay Lakshmi Pundit created a record. The myth that higher fields were only meant for men has been demolished by women. Modern women in the present age occupy top rank and attain immense success in all the fields such as politics, performing arts, police, administration, medicine. Women such as mother Teresa, P.T.Usha, M.S.Subhalakshmi, Kiran bedi, sushma swaraj, meedha patkar have achieved great heights in different fields of their work. Not just these but also women made our country proud by achieving medals in 2016 summer Olympics. P.V. Sindhu became the first Indian women to achieve the silver medal while sakshi Malik achieved bronze. It was rightly said that by educating a woman we educate and uplift the nation.10

For centuries, women in this country have been socially and economically handicapped. The constitution of India has taken a long leap in the adverse forces so far as women are concerned. The impact of the various development policies, plans and programs implemented by the government over the last years has brought from perceptible improvement in the socio- economic status of women. Expectation of life at birth has increased over the years has brought a perceptible improvement in socio economic status of women.

4. ISSUES AND CHALLENGES: -

Women are facing problems in every sphere of life whether employment, access to health care or property rights. Women empowerment in India is still a distant dream. There still exists a wide gap between the goals enunciated in the constitution, legislation, policies, plans, programs and related mechanisms on the one hand and the situational reality of the status of women in India, on the other hand. India is developing fast but still the women`s in India

10 Quoted by Napoleon.

54 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

continue to be discriminated. The declining sex ratio in India amply portrays the discrimination shown towards women at different stages of birth. Women may reach stardom but they are getting harassed everyday by their surroundings. They are victims of crimes such as Rape, kidnapping and abduction, sexual harassment, dowry related crimes , molestation, eve teasing, domestic violence etc. women irrespective of their class, caste, and even educational status are not safe in India. In spite of constitutional and legal safeguards, the women in India continue to suffer, due to lack of awareness of their rights, illiteracy and oppressive practices and customs. Why can’t women get the same status as that of men? Gender justice is a myth foe most of the Indian women. Gender based discrimination represents the ugly face of Indian Society Fight for Justice by female or cry for gender equality is not the fight against men. It is the fight against old traditions that have chained them. India needs to deactivate the gender inequality. The way to overcome this problem is a nationwide revolution. Is the equal status of women a reality or just a topic to endless discussion and debates without reaching to any conclusion?

5. JUDICIAL PRONOUNCEMENTS:

It is the judiciary which interprets and implements the laws. A judge is an eyewitness to a real life drama, how the script written by the legislature is played by reel life characters. Landmark decisions delivered by the Indian Judiciary, in particular during the last two decades, bear testimony to that fact that judges cannot be accused of gender injustice. They have shown the requisite sensitivity expected of them. However, all that can be said is that such sensitivity is individual and needs to be institutionalized.

6. CONSTITUTIONAL PROTECTIONS:

The principle of gender equality enshrined in the constitution is also enshrined in its fundamental rights, Preamble and directive principles of state policy. The British government had enacted some laws such as ‘abolition of practice of sati and ‘widow remarriage act 1856’ to improve the conditions of women. In Valsamma Paul v. Cochin University11 Supreme Court has categorically upheld the human right of women including girl child are inalienable, integral and indivisible. All forms of

11 (1996) 3 SCC 545

55 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 discrimination on grounds of gender are violative of fundamental freedom and human right. These are few legislations that have been passed: The Factories Act 1948 The Plantation Labour Act 1951 The Mines Act 1952 The Family Court Act 1954 The Special Marriage 1954 The Hindu Marriage Act 1955 Dowry (Prohibition) Act 1960 Equal Remuneration Act 1976 The Protection of Women from Domestic violence act 2005 Maternity Benefit Act 1961 The Sexual Harassment of Women at Workplace (prevention, prohibition and Redressal) Act 2013

Formation of national policy for empowerment of women in 2001, government has taken an important step in direction of accelerating step in direction of accelerating the pace of empowerment of women .The policy aimed at ensuring empowerment of women through social initiative for the development of women and also to strength the legal system to end decimation against women. Initiatives by the government alone are not enough to achieve empowerment of women. The society also should create an atmosphere to eliminate gender discrimination. For this to happen men should change their attitude towards women, women should be given opportunity of social, political and economic life of the society.

If women are educated and economically independent, they will be able to understand and fight better for their rights. Constitution has given concession to women in various fields. A 33% reservation of seats has been proposed for women in parliament. Government has launched several projects to prevent female infanticide such as providing free schooling for girls. Also in some states, parents are paid money by the government. if they let their girl child study in school. “There is no tool for development more effective than the empowerment of women” - Kofi Annan.

56 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

7. CONCLUSION & SUGGESTIONS: -

The topic on “women empowerment is a burning issue all over the world. “Women empowerment and women equality with men” is a universal issue. Creation of an environment for women where they can take decision of their own, for their personal benefits as well as for the society. The questions which most of the Indians would be asking based on the current scenario will be: why are the girls ALWAYS considered being the second sex? Why the girls are tortured, raped, beaten? Why are they the INFERIOR class of the society? Why can’t they get the same status as that of a man? Why do the people blame a girl if she is raped? Why the girl is always targeted for not wearing ‘proper clothes’ while going out at night? Why is this injustice in the country of equals restricted to female? It is true that the male sex is most of the time blamed as the inflictor of gender injustice; but it cannot be ignored that the male sex also suffers from and feels pained at gender injustice, as the women subjected to injustice is sometimes his mother, his daughter, his sister or even his wife.

Therefore, perceptional change is needed for greater social awareness and sensitization which breeds equality of the sexes and not rivalry of the sexes. Let there be hundreds of legislations, nothing is going to change. In the absence of a Uniform Civil Code12 and in the continued use of religion based customary law by different communities, the struggle for gender justice looks a long drawn one made difficult by partisan interpretations of religious freedom, minority rights and vote bank policies.13

To ensure gender justice - a) Enactment of new laws pulsating with concern for gender justice b) Effective and honest implementation of the enacted laws c) Professionalization and sensitization of police, prosecutors and judges d) More and more professional training and in-service training programs to bring about attitudinal and behavioral changes among the personnel involved in all sub-systems. Gender sensitization should be given priority.

12 The Constitution of India, Article 44 13 Prof. (Dr.) G. Rajasekharan Nair, Gender Justice under Indian Criminal Justice System

57 | P a g e

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

e) Enlistment of more women in police, judiciary and correctional service is a pre- requisite to improve the situation. f) Women’s exploitation is a reality- and gender justice is a fragile myth, women emancipation lies in the education and in their awareness.14

Gender justice is in fact ingrained in the sublime concept-equality. It implies that men and women should be treated alike before law and they should get equal protection of the laws. There is no lack of legislation, but lack of implementation of the same, gives rise to gender inequality. Social evils cannot be eradicated through laws and Governmental regulations alone. We need strong and sustained societal action, supported by proper public education. We are in 21st century; despite progress in direction of gender equality much is still required to be done. Will there be complete gender justice' for future to answer? The fight is not for women’s status but for human worth. The claim is not to end inequality of women but to restore universal justice.

“A Gender – equal Society would be one where the word ‘gender’ does not exist: where everyone can be themselves.”

14 Justice VR Krishna Iyer: Law and Life, p. 31

58 | P a g e

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 ISSN No. 2581-7949 ABETMENT AND CRIMINAL CONSPIRACY: AN ANALYSIS ABETMENT AND CRIMINAL CONSPIRACY: AN ANALYSIS By Nishi Kumari*

ABSTRACT * ABSTRACT Nishi Kumari Law and crime have a long history in the civilization of the society. Crime is basically regarded as an act which is forbidden by the law of the land. Sometimes an offender himself is the reason Lafowr candomm icttrinimeg an ohffaevncee and long somet hisimesto itr’sy soinm thee hidden civiliz factor/ation person of w theho ab socieets an otfyfe. nCderrime is tobasically commit an r ofegafencreded. Both as Ab anetm aentct a ndwhich Crimi nisal fCoonsprbiddeniracy ha vbey i tthes roots la inw I ndofia then Pen lanal d. Code,1860. The word 'abet' has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage; induce, or assist, to encourage or to set another one to commit. Whereas, conspiracy is an inchoate crime and is punishable primarily because an agreement to commit a crime is a decisive act, fraught with potential dangers. Both the concepts are similar as both aims to commit an offence but still there are many differences on the technical grounds. This paper aims to analysis the concept of toAb aid;etm etnto aassistnd Crim orina tl oC onspgiviera caid;y and t othe crommanefore to findd, outto thepr ocukey difref,e roren cteo b ectwounsel;een the to couboth.nt enan ce; to encourage; induce, or assist, to encourage or to set an- otherKeyw oneords: t Abo cetommiment, Ctonsp. Wheiracryea, Csrim, ceonspiracy is an inchoate crime and is pun- ishable primarily because an agreement to commit a crime is a decisive act, fraught with potential dangers. Both the concepts are similar as both - nical grounds. This paper aims to analysis the concept of Abetment and

the both.

Keywords : Abetment, Conspiracy, Crime

* B.A.LL.B., 3rd year, Rajiv Gandhi National University of Law, Punjab.

Page | 1

* B.A.LL.B., 3rd year, Rajiv Gandhi National University of Law, Punjab.

http://legalpediajournal.com ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

1. INTRODUCTION

The very definition and concept of crime varies not only according to the values of a particular group and society, its deals, faith, religious attitudes, customs, traditions, and taboos, but also according to the form of government, political, economic structure of the society and number of other factors. For instance, what is an offence against property in a capitalist society may be a lawful way of living in a socialist society.

People may believe that if they plan to commit a crime, but do not actually go through with it, that they will not be held responsible for a crime. This belief is mistaken; however, as there are laws set out for specific offences called “inchoate” offences. Inchoate means that a criminal act was anticipated or prepared for, but not completed. The major offences which are included in this are: Abetment and Conspiracy.

Indian Penal Code is a piece of comprehensive legislation. The code embodies the general penal law of country and is the sole authority in respect to the general conditions of work, the definitions of the specific offences in Code, and the conditions of exemptions from criminal liability. Some crimes are cognizable, and some are not.2

Traditional and conventional crimes are rooted in time and customs and Indian Penal Code represents its core. The Code punishes such acts against persons and their property as are universally accepted as injurious to all civilized societies and acts which offend against fundamental principles on which the existence of human being as society rests. These fundamentals are more or less of a permanent nature and will endure for a long time to come.

The term 'abetment' in criminal law indicates that there is a distinction between the person abetting the commission of an offence (or abettor) and the actual perpetrator of the offence or the principal offence or the principal offender. Whosoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.3

Russell remarks the crime of conspiracy as, “affords support for any who advance the proposition that criminal law is an instrument of government.”4 The IPC was amended in 1870 as to insert S. 120-A IPC. Chapter V-A has been introduced in the code by the Criminal Law

2 Cr.P.C., (1973), sec. 2 (c) 3 Indian Penal Code, sec. 107 4 Russell on Crimes, vol. 1 (11th Ed.) p. 213

Page | 59

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

Amendment Act (8 of 1913). The object of the amendment was to prevent the commission of crime by nipping them in the bud.5 As stated above the inclusion of Chapter V-A in the Penal Code was designed to assimilate the provisions of English law. This chapter was inserted in the Indian Penal Code in 1913. Conspiracy, at common law, had its origin primarily as a civil wrong, but was lately made punishable as criminal wrong.6

2. ABETMENT

In Indian Penal Code, Abetment is defined under section 107 as:7

Abetment of a thing - A person abets the doing of a thing, who: -

a. Instigates any person to do that thing; or b. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or c. Intentionally aids, by any act or illegal omission, the doing of that thing.

In comprehensive way under Indian Penal Code, abetment can be defined as, a person becomes liable as an abettor if he instigates another to commit a crime or engages in a conspiracy with another to commit a crime and some act is done in furtherance of such conspiracy or if he intentionally aids another in order to facilitate the commission of a crime. The term 'abet' in general usage means to assist, advance, aid, conduce, help and promote. The word 'abet' has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage; induce, or assist, to encourage or to set another one to commit.8

The term 'abetment' in criminal law indicates that there is a distinction between the person abetting the commission of an offence (or abettor) and the actual perpetrator of the offence or the principal offence or the principal offender.

Abettor is a person who abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law

5 State of A.P. v. Cheemalapati Caneswara Rao, AIR1963 SC 1850; (1963) 1 Cri L J 67 6 Gour, Hari Singh, Penal Law of India, 11th Edn., Vol. II, 2000, pp. 1101-1135 7 Indian Penal Code, 1860, sec.107 8 Kartar Singh v. State of Punjab, 1994 Cri LJ 3139; See also Sanju v. State of Madhya Pradesh, (2002) 5 S.C.C. 371(India)

Page | 60

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 of committing an offence with the same intention or knowledge as that of the abettor. The essentials are:

(1) There must be an abettor; (2) He must abet, and (3) The abetment must be an offence or an act which would be an offence, if committed by a person capable in law of committing the offence with the same intention or knowledge as that of the abettor.9

The chapter on abetment contains 15 sections.

Section 107 which defines abetment generally speaks of three kinds of abetment, viz., abetment by instigation, abetment by conspiracy and abetment by aid. Section 108 explains as to when an abetment of an offence takes place, and S. 108-A provides for the case of abetments-in India of an offence committed in a foreign country. Section 109 prescribes the punishment for the offence of abetment when the offence abetted is committed, while S. 110 prescribe the punishment for abetment where the person abetted commits the act with a different intention or knowledge from that of the abettor. Section 111 provides for cases of abetment resulting in a different offence but which is a probable consequence thereof. Section 112 provides for cumulative punishment in cases covered by S. 111. Section 113 which is supplementary to S.111 provides for punishment in cases where the act abetted causes a different effect from that intended by the abettor. Section 114 provides for cases where the abettor is present at the time of the offence and makes him liable for the main offence and not merely as an abettor. Sections 115 and 116 prescribe for the punishment in cases where the offence abetted is not committed. Section 117 deals with abetment of offences by the public generally or large groups of persons.

9 Emperor v. Parimal Chatterjee, A.I.R. 1932 Cal 760 (761); (1939) 34 Cr LJ 78 (India). See Nelson’s Indian Penal Code, 7th Edn., (1981), Vol. I, p. 275

Page | 61

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

Section 118 prescribes the penalty for concealing the existence of a design in another to commit a grave offence. Sections 119 and 120 provide for punishment in the case of public servants and others respectively for concealment of a design in another person to commit the offence not covered by S. 118.

2.1 ABETMENT BY INSTIGATION

The word 'instigate' literally means to goad, urge forward, provoke, incite, or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means, or language, direct or indirect, whether it take the form of express solicitation or of hints, insinuation or encouragement or a wilful misrepresentation or wilful concealment of a material fact.

It is not necessary that express words should be used to indicate what should be done by the person to whom the directions are given. While there has to be a reasonable certainty in regard to the meaning of the words used in order to decide whether there was incitement, it is not necessary in law to prove the actual words used.

Advice amounts to instigation only when intended to actively suggest or stimulate the commission of an offence. Mere acquiescence does not amount to instigation. Thus the word denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea required to constitute instigation as they are uttered in a fit of anger and emotional state.10

Instigation as a form of abetment has generally been one of the essential considerations in cases involving death of young brides or women within seven years after marriage, as a consequence of dowry harassment. The apex court has laid down that before anybody can be punished for abetment of suicide, it must be proved that the death in question was a suicidal death.11

10 See Swamy Prahaladdas v. State of M.P. & Am., 1995 Supp. (3) SCC 438 (India); Mahendra Singh v. State of M.P., 1995 Supp. (3) S.C.C. 731 (India); Ramesh Kumar v. State of Chhattisgarh, (2001) 9 S.C.C. 618 : 2001(4) RCR (Cri.) 537 (S.C.) (India) ; Seeta Hemchandra Shashittal v. State of Maharashtra, (2001) 4 S.C.C. 52 (India) 11 Wazir Chand v. State of Haryana, A.I.R. 1989 S.C. 378; Ramesh Chandra Mondal v. State, 1991 Cr LJ 2520 Cal (India)

Page | 62

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

In Jamuna Singh v. State of Bihar12, the offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed.

It is only in the case of the person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person alleged to have committed the offence is acquitted of that offence.13

2.2 ABETMENT BY CONSPIRACY

A person is said to abet the commission of an offence by conspiracy, if he enters into an agreement with one or more persons to do a legal act by illegal means, or to do an illegal act, and some act is done in pursuance thereof. A conspiracy to do a thing is a combination of two or more persons with a common design of doing a specific thing. It has been held that where a criminal conspiracy amounts to an abetment under S. 107, it is unnecessary to invoke the provisions of Ss. 120-A and 120-B, as the Code has made a specific provision for the punishment of such a conspiracy.

2.3 ABETMENT BY AID

A person is said to abet the commission of an offence if he intentionally renders assistance or gives aid by doing an act or omitting to do an act. Mere intention to render assistance is not sufficient. There must be some active conduct on the part of the abettor and the act must be accomplished in pursuance thereof.

Aid may be given both by an act of commission as well as by an act of illegal omission. For instance, if a police officer knowing that certain persons were likely to be tortured for the purposes of extorting confession keeps himself away from the place, he is liable for abetment to the offence of extortion by an act of omission.14

a) The act or omission which constitutes the aid must have been done intentionally;

12 Jamuna Singh v. State of Bihar, A.I.R. 1967 S.C. 553 at 554 : 1967 Cri. LJ 541 (India) 13 Ibid 14 Faguna Kama Nath v. State of Assam, A.I.R. 1959 S.C. 673 (India)

Page | 63

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

b) The aid must have been given either prior to or at the time of the commission of the offence abetted.

3. CRIMINAL CONSPIRACY

In English law, "if two or more persons agree together to do something contrary to law, or wrongful and harmful towards another person, or to use unlawful means in the carrying out of an object not otherwise unlawful, the persons who so agree commit the crime of conspiracy."15 No overt act in pursuance of the conspiracy is necessary, the illegal combination itself being the gist of the offence. The overt acts which may follow the conspiracy form, of themselves, no part of the conspiracy.

In Mulcahy v. R.16 the House of Lords stated, "A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only it is only indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties promise against promise actus contra actum capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means." After the judgment of the House of Lords in the case of Mulcahy v. R.17 IPC was amended in 1870 as to insert S. 120-A IPC. Chapter V-A has been introduced in the code by the Criminal Law Amendment Act (8 of 1913). The object of the amendment was to prevent the commission of crime by nipping them in the bud.18

120A. Definition of criminal conspiracy - When two or more per-sons agree to do, or cause to be done: -

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

15 Halsbury's Laws of England, (3rd Ed.) vol. 10. p. 310-1 16 Muchay v. R (1868) LR 3 HL 30 (England) 17 Ibid 18 State of A.P. v. Cheemalapati Caneswara Rao, A.I.R. 1963 S.C. 1850; (1963) 1 Cri L J (India)

Page | 64

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

So far as the law of present day is concerned the House of Lords has declared:

(a) that the gist of conspiracy is the agreement, whether or not the object is attained (b) that the purpose of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of attempt and (c) that it is all part and parcel of the preservation of the Queen's peace within the realm.19 Conspiracy under the Indian Penal Code originally was punishable only in two forms, viz., (i) conspiracy by way of abetment and (ii) conspiracy involved in certain offence. In the former an act or illegal omission must take place in pursuance of conspiracy in order to punishable while in the latter membership suffices to establish the charge of conspiracy.

Thus the Indian Penal Code deals with the law relating to criminal conspiracy:

as a substantive offence;20 as a form of abetment (Chapter V, section 107);21 to wage, attempt or abet waging of war against the Government of India. (Chapter VI, section 121A);22 involvement in certain offences, such as assembling for purpose of committing dacoity.

Before passing of the Criminal Law Amendment Act of 1913, a conspiracy to do an illegal act was punishable only when such act amounted to an offence. It was also essential in the words of section 107(2) of the Code that an act or illegal omission should have taken place in pursuance of the conspiracy and in order to the doing of the act which was the object of the Conspiracy.

The Criminal Law Amendment Act, 1913 has, however, introduced two rather drastic changes in the respect. By section 120B punishment is provided for criminal conspiracies of all kinds viz.,

whether, according to the requirement of section 107, an overt act has or has not taken place in pursuance of such conspiracy, and;

19 Kenny, Outlines of Criminal Law (Ed. Turner 17th Ed.) p. 89; See also Board of Trade v. Owen (1957) 2 WLR 351 at 357 20 Chapter VA, secs. 120A and 120B, I.P.C. added to the Indian Penal Code by Act VIII of 1913 21 Chapter V, sec. 107(2), I.P.C. 22 Added to the I.P.C. by Act XXVII of 1870, sec.4

Page | 65

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

whether, as required by sections 109, 115 or 116, the object of conspiracy is or is not the commission of an offence.

In Mohd. Khalid v. State of West Bengal23 and Davender Pal Singh v. State of NCT of Delhi24 , the Supreme Court after referring to the American and the English legal position on the law of conspiracy summarized the broad essential elements of conspiracy thus:

an object to be accompanied; a plan or scheme embodying means to accomplish that object; an agreement or understanding between two or more accused persons whereby, they become definitely committed to corporate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means; and in the jurisdiction where the statute requires, an overt act.

The court further held that the Indian law broadly conforms to the English legal position on the law of criminal conspiracy. Thus, the provisions of Ss. 120 A & 120B IPC have brought the law of conspiracy in India in tune with the English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The provisions, in such a situation do not require that each and every person who is party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy the essential ingredients being an agreement between the conspirators to commit the crime and if these essentials and requirements are established, the act would fall within the trapping of the provisions contained in S. 120B.

4. CASE ANALYSIS

1. The use of the word "illegal" in the definition of criminal conspiracy in S.120-A IPC is extremely comprehensive and would make even a case of civil trespass

23 Mohd. Khalid v. State of West Bengal (2002) 7 S.C.C. 334 (India) 24 Davendera Pal Singh v. NCT of Delhi (2002) 5 S.C.C. 234 (India)

Page | 66

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

indictable, as a criminal conspiracy. In State of Maharashtra v. Somnath Thapa25 Supreme Court explained the ingredients of conspiracy and observed:

―To establish a charge of conspiracy, knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself... Finally when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had to know of what the collaborator would do, so long as it is known that the collaborator would put the goods or services to an unlawful use.

Thus, even knowledge of an illegal act is enough to hold one guilty of conspiracy. But as per the Ss. 120A and 120B it is the intent by two or more which is necessary to constitute conspiracy. The law relating to conspiracy aims at punishing guilty intentions because no overt act is required for the same. However, it can be inferred that mem rea is not a necessary ingredient of the charge of conspiracy to commit an offence.

2. The Supreme Court in State v. Nalini (Rajiv Gandhi Assasination case)26, dealt at length the law of conspiracy, reviewed case law and culled out several principles governing conspiracy. On the night of 21-5-1991 Rajiv Gandhi, the former Prime Minister of India was assassinated by a human bomb. This incident was a result of conspiracy. Wadhwa, J laid down following broad principles governing the law of conspiracy: i. Under S. 120 -A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by „illegal‟ means. ii. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy

25 State of Maharashtra v. Somnath Thapa 1996 Cri LJ 2448 : A.I.R. 1996 S.C. 1744 (India) 26 State (C.B.I/S.I.T) v. Nalini (1999)5 S.C.C. 253 (India)

Page | 67

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

iii. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. iv. Conspirators may, for example be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. v. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement vi. It is not necessary that all conspirators should agree to the common purpose at the same time. vii. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. viii. It is the unlawful agreement and not its-accomplishment, which is the gist or essence of the crime of conspiracy ix. It has been said that a criminal conspiracy is a partnership in crime, and there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. x. A man may join a conspiracy by word or by deed.

The essence of criminal conspiracy embodied in S. 120A is the unlawful combination and ordinarily the offence is complete when the combination is framed.

5. DIFFERENCE BETWEEN ABETMENT AND CRIMINAL CONSPIRACY

o Abetment is a process by which one or more engage or employ other(s) for commission of an offence. The former i.e., the person, who abets is called the „abettor‟, while the latter i.e., the person who commits the offence with his own hands is called the „principal offender‟.

Page | 68

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

o But, conspiracy is a process by which an agreement is entered into between two or more persons for commission of an illegal act or doing/committing a lawful/ legal act by illegal means. The parties to the agreement are called „Conspirators‟

o In the offence of abetment, a mere combination of persons or agreement between them is not enough but an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for,

o But in conspiracy, the mere agreement is enough, if the agreement is to commit an offence.

o Abetment can be committed by one or more, whereas conspiracy can be committed by two or more.

o In abetment, sanction of competent authorities is not necessary to proceed against the abettors, who merely abetted to commit a crime.

o While in conspiracy, sanction of competent authorities is necessary to proceed against the conspirators who merely agreed to commit a crime.

o Abetment is genus while the conspiracy is species. o Abetment per se is not a substantive offence whereas criminal conspiracy is a substantive

o offence by itself and is punishable. o Abetment may be committed in various methods/ways viz., instigation, conspiracy, intentional aid etc., but conspiracy is one of the methods of abetment.

o Crime of Abetment is explained in Sections 107 to 120 of the code while Crime of Conspiracy is explained in Sections 120- A & 120-B of the Code.

o Section 109 of the code is concerned only with the punishment of abetments for which no express provision is made under the Penal Code. A charge under Section 109 should, therefore, be alone with some other substantive offence committed in consequence of abetment.

However, the offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120 В of the code for which a charge under Section 109 of the Code is unnecessary and, indeed, inappropriate.

Page | 69

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1

6. CONCLUSION

Under the Penal Code a person becomes liable as an abettor if he instigates another to commit a crime, or engages in a conspiracy with another to commit a crime and some act is done in furtherance of such conspiracy or if he intentionally aids another in order to facilitate the commission of a crime. The term 'abet' in general usage means to assist, advance, aid, conduce, help and promote. The word 'abet' has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage; induce, or assist, to encourage or to set another one to commit.

Thus, conspiracy is an inchoate crime and is punishable primarily because an agreement to commit a crime is a decisive act, fraught with potential dangers; but to bring an agreement to commit a civil wrong within the range of criminal conspiracy is to stretch the rationale of law to the farthest limit. In its broad reach it can be made to do great evil.

The United States of America, France, United Kingdom and Canada are the some of the countries whose Penal Laws are more strengthened by keeping the social change in view for effective control of Law and Order. Every citizen should, with a reasonable degree of certainty must know the potential penal consequence of any act he/she commits. Law and order can be maintained through sociological jurisprudence that is social engineering, as opined by Rosco Pound. The objective and philosophy of the penal law is the same as that of sociological jurisprudence. This is unfortunate, for the absence of a distinct sentencing phase and the attention to sentencing process which enables and impedes the growth of a mature jurisprudence. By maintaining law and order social welfare can be attained in any society very easily.

7. SUGGESTIONS

Crime rate in India has been considerably increasing from year to year and the convictions rate hard become very low and that too the courts have been awarding very merge punishments by using them vide discretionary powers.

There are more chances to get lenient punishment by the proved offenders due to lose frame work of the legislature in fixing the punishment for several offences in the Code.

There is more probability to apply the personally favored brain and individual opinion of the judicial officers while conforming the sentence to the offenders, due to wide discretion

Page | 70

ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 available in the present sentencing jurisprudence. So that, there are more chances to escape for the accused from the clutches of the law.

Already Indian Criminal Justice System is working on the motto of “hundred criminals can be escaped, but one innocent should not be punished”.

In these circumstances, if the minimum punishment is conformed in the penal statutes in general and in Indian Penal Code in particular as it is covering substantial portion of the offences in India by the legislature through amendments, the trial court judge will be curtailed by the Statute and he is forced to give punishment within the limit stipulated by the legislature. Crime is age-old phenomenon, a deep-rooted evil, born and developed along with the development of man and gradually became universal malady afflicting each and every society.

Page | 71