Euthanasia-A modern term to provide moksh

“Mercy killing is nothing but homicide, whatever the circumstances in which it is affected. Unless it is specifically accepted it cannot be offences. Indian Penal Code further punishes not only abetment of homicide, but also abetment of suicide”-Supreme Court in M.S.Dabal vs. State of Maharashtra

“I will give no deadly medicine if asked, nor suggest any such counsel.” The Hippocratic Oath.

This oath is taken by doctors to serve their profession in a dignified manner and it tells us that they are made to save the life of others, not to take the life of others.

What is Euthanasia?

Euthanasia means mercy killing, it is a modern terminology to the word ‘moksha.’ It is derived from Greek words ‘eu’ meaning good or well and ‘thanatos’ meaning death.

When a person is suffering from an ailment from a very long time which has no cure and that person is given the permission to end his life in order to relieve pain and suffering is called ‘Euthanasia.’

Euthanasia is categorized in different ways, which include voluntary, non-voluntary, or involuntary. Voluntary, non-voluntary and involuntary euthanasia can all be further divided into passive or active variants.

Passive euthanasia entails the withholding of common treatments, such as antibiotics, necessary for the continuance of life while active euthanasia entails the use of lethal substances or forces, such as administering a lethal injection, to kill and is the most controversial means.

Indian Constitution & Euthanasia

From the moment of his birth, a person is clothed with basic human rights. Article-21 of the Indian Constitution provides for Right to life which is one of the basic as well as fundamental right without which all rights cannot be enjoyed. Right to life means a human being has an essential right to live, particularly that such human being has the right not to be killed by another human being. In M.S Dubal vs. State of Maharastra , the Bombay High Court held that right to life under article 21 of the Indian Constitution includes ‘right to die’. On the other hand in Chenna Jagadeeswar vs. State of AP , the AP High Court said that right to die is not a fundamental right under Article 21 of the Constitution. However in P. Rathinam’s case Supreme Court of India observed that the ‘right to live’ includes ‘right not to live’ i.e right to die or to terminate one’s life. But again in Gain Kaur vs State of Punjab , a five member bench overruled the P.Rathainam’s case and held that right to life under Article 21 does not include Right to die or right to be killed.

‘Right to life’ including the right to live with human dignity would mean the existence of such right up to the end of natural life. This may include the right of a dying man to die with dignity. But the ‘right to die with dignity’ is not to be confused with the ‘right to die’ an unnatural death curtailing the natural span of life. Thus the concept of right to life is central to the debate on the issue of Euthanasia. One of the controversial issues in the recent past has been the question of legalizing the right to die or Euthanasia. Euthanasia is controversial since it involves the deliberate termination of human life. Patient suffering from terminal diseases are often faced with great deal of pain as the diseases gradually worsens until it kills them and this may be so frightening for them that they would rather end their life than suffering it. So the question is whether people should be given assistance in killing themselves, or whether they should be left to suffer the pain cause by terminal illness.

 

Difference Between Euthanasia And Suicide

There is a conceptual distinction between suicide and euthanasia. In a suicide a man voluntarily kills himself by stabbing, poisoning or by any other way. No doubt in suicide one intentionally attempts to take his life. It is an act or instance of intentionally killing oneself mostly due to depression or various reasons such as frustration in love, failure in examinations or in getting a good job etc. on the other hand, in euthanasia there is an action of some other person to bring to an end the life of a third person. In euthanasia, a third person is either actively or passively involved i.e he aids or abets the killing of another person. It is important to mention in this context that there is also a difference between ‘assisted suicide’ and ‘euthanasia’. Assisted suicide is an act which intentionally helps another to commit suicide, for example by providing him with the means to do so. When it is a doctor who helps a patient to kill himself (by providing a prescription for lethal medication) it is a ‘physician assisted suicide’. Thus, in assisted suicide the patient is in complete control of the process that leads to death because he/she is the person who performs the act of suicide. The other person simply helps (for example, providing the means for carrying out the action). On the other hand euthanasia may be active such as when a doctor gives a lethal injection to a patient or passive such as when a doctor removes life support system of the patient.

The difference between euthanasia and suicide is clearly differentiated in the case Naresh Marotrao Sakhre v. Union of India ,J. Lodha clearly said in this case. “Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is affected.”

Position of Indian Law on Euthanasia

In case of physicians, there is an intention to cause death of patient, hence he can be charged under clause (1) of section 300 of I.P.C but where there is valid consent of the deceased, exception 5 of section 300 is attracted and thus the act of the physician is considered as culpable homicide not amounting to murder under Part I of section 304. In case of non-voluntary and involuntary euthanasia, the act of physician can be fall under section 88 and 92 of IPC as there is an intention to causing death of a patient for his benefit. And other relatives who are aware of such intention either of the patient or of the physician can be charged under section 202 of IPC.

Global Status of Euthanasia

There had been many debates going on the issue of legalizing euthanasia in all the parts of the world, it is legal in some countries and in some it amounts to murder.

The Northern Territory of Australia became the first country to legalize euthanasia by passing the Rights of the Terminally ILL Act, 1996.

Netherlands is the first country in the world to legalise both euthanasia and assisted suicide in 2002. According to the penal code of the Netherlands killing a person on his request is punishable with twelve years of imprisonment or fine and also a assisting a person to commit suicide is also punishable by imprisonment up to three years or fine. In spite of this provision, the courts of Netherlands have come to interpret the law as providing a defence to charges of voluntary euthanasia and assisted suicide. The defence allowed is that of necessity.

In Canada, patients have the right to refuse life sustaining treatments but they do not have the right to demand for euthanasia or assisted suicide.

In U.S.A., there is a distinction between passive euthanasia and active euthanasia. While active euthanasia is prohibited but physicians are not held liable if they withhold or withdraw the life sustaining treatment of the patient either on his request or at the request of patient’s authorized representative. Euthanasia has been made totally illegal by the United States Supreme Court.

Euthanasia is illegal in United Kingdom but on November 5, 2006 Britain Royal College of obstructions and gynaecologists submitted a proposal to the Nuffield Counsel of Bioethics calling for consideration of permitting the euthanasia of disabled new-born.

According to Article 115 of Swiss Penal Code, suicide is not a crime and assisting suicide is a crime if only if the motive is selfish.

Aruna Shanbaug Case

Aruna Shanbaug, who was working as a nurse at KEM Hospital, was assaulted on the night of November 27, 1973 by a ward boy. He sodomised Aruna after strangling her with a dog chain. The attack left Aruna blind, paralysed and speechless and she went into a coma from which she has never come out. She is cared for by KEM hospital nurses and doctors. The woman does not want to live any more. The doctors have told her that there is no chance of any improvement in her state. Her next friend (a legal term used for a person speaking on behalf of someone who is incapacitated) describes Shanbaug: “her bones are brittle. Her skin is like ‘Paper Mache’ stretched over a skeleton. Her wrists are twisted inwards; her fingers are bent and fisted towards her palms, resulting in growing nails tearing into the flesh very often. Her teeth are decayed and giving her immense pain. Food is completely mashed and given to her in semisolid form. She chokes on liquids and is in a persistent vegetative state.” So, she, through her ‘next friend’ Pinki Virani, decided to move the SC with a plea to direct the KEM Hospital not to force feed her. And on 16th December 2009, the Supreme Court of India admitted the woman’s plea to end her life. The Supreme Court bench compromising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S Chauhan agreed to examine the merits of the petition and sought responses from the Union Government, Commissioner of Mumbai Police and Dean of KEM Hospital.

S.C. pronounced its judgement on 07th March, 2011 on the plea filed by Aruna Shaunbag’s friend Pinky Virani for passive euthanasia to Aruna as she had been mentally dead from past 38 yrs.

S.C. rejected the plea and praised K.E.M. hospital for taking care of Aruna for the past 38 yrs. S.C. said that Aruna should live and wait for her natural death to take her life.

S.C. bench presided by Justice Markandey Katju and Justice Gyan Sudha Mishra made passive euthanasia legal in India but said that active euthanasia is still illegal. It is a landmark judgement passed by the S.C. which would leave a great impact on the society.

The bench said that the State H.C. has jurisdiction to try such case and euthanasia can only be performed after the order given by the concerned H.C.

Bench also stated that before coming to the conclusion the H.C. will take advice from a panel of 3 doctors who will tell about the condition of the patient and whether it is so much worse that the best resort is to kill that person.

It also stated that a petition for passive euthanasia can only be filed by a close relative of the patient and not by any other person, it also stated that this judgement would be treated as law till Parliament passes any law on the issue.

The S.C. also showed concern that this law can be misused so laid the guidelines stated above.

 

Conclusion

Euthanasia is totally different from suicide and homicide. Under the Indian penal code, attempt to commit suicide is punishable under section 309 of IPC and also abetment to suicide is punishable under section 306 of IPC. A person commits suicide for various reasons like marital discord, dejection of love, failure in the examination, unemployment etc. but in euthanasia these reasons are not present. Euthanasia means putting a person to painless death in case of incurable diseases or when life became purposeless or hopeless as a result of mental or physical handicap. It is also differs from homicide. In murder, the murderer has the intention to cause harm or cause death in his mind. But in euthanasia although there is an intention to cause death, such intention is in good faith. A doctor apply euthanasia when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years like Aruna Shanbaug.

 

Therefore it is suggested that penal provision regarding attempts to commit suicide and abetment to suicide should be preserved in the interests of the society as a general rule but euthanasia (voluntary) should be permitted in certain circumstances as an exception to the general rule. Thus Indian Parliament should enact a law regarding euthanasia which enables a doctor to end the painful life of a patient suffering from an incurable disease with the consent of the patient. Parliament should lay down some circumstances under which euthanasia will be lawful as bellow;

 

A) consent of the patient must be obtained,

B) Failure of all medical treatments or when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years,

C) The economic or financial condition of the patient or his family is very low,

D) Intention of the doctor must not be to cause harm,

E) Proper safeguard must be taken to avoid abuse of it by doctors,

F) Any other circumstances relevant to the particular case

Thus, Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, as it is a matter of life and death, is yet to be seen.

PRIOR RESTRAINT ON MEDIA

What is ‘Prior Restraint?’

The taking of legal action before an anticipated wrongdoing. Remedies to prevent a threatened illegality from taking place include the use of injunction or prohibition and declaration. In English law, an injunction may take the form of either a negative or positive requirement, depending on how best to deal with the illegality. In order to obtain an injunction, the plaintiff must show he has an arguable point of law and that on the balance of convenience an injunction ought to be given.[1]

Prior Restraint is not defined in Indian law and if someone puts a prior restraint it has been held unconstitutional be our own S.C. in cases like Ramesh Thapar v. State of Madras[2], Brij Bhushan v. State of Delhi[3], etc.

“Freedom of expression – in particular, freedom of the press – guarantees popular participation in the decision and actions of government, and popular participation is the essence of our democracy…” [4]

The Right to freedom of speech and expression is given under Art. 19(1) (a) of our Indian Constitution. It is probably the most universally accepted human right.[5] Freedom of Press is considered as the fourth pillar, it must be protected in every democratic society.  This freedom can only be available in a society where there is a right to free speech and expression. Similarly, the freedom of information can be enjoyed only if there are sources from which information can flow. These sources, again, would be available where there is a right to speech and expression. The freedom of expression and the freedom to receive and impart information are corollary of one another. In fact, there is an overlap between the freedom of expression and the freedom to receive or impart information. The freedom to impart information can be considered as an expression of an opinion, of the informant or of a third person. The seeking of information, on the other hand, precedes the formation of an opinion by the person who seeks the information, and consequently also its expression. But with regard to the press, freedom of expression and information run parallel to each other. While the press might be the medium of expression, someone else might possess the information. Until and unless these two freedoms are exercised together both would be useless. In the case of information the only one who has the right of free distribution of that information is the party who is the author, originator or otherwise the intellectual owner of the information in question. In case of the press, however, the press can express opinions of others also, of course, held in good faith and believed to be true. It is incumbent on the press, with regard to the print media as well as audio-visual media, to impart information and ideas which the public has the right to receive. Otherwise, the press would not be able to play its role of ‘public watch dog’. Freedom of press is conferred on by virtue of article 19 (1) (a). This constitutional provision is getting obsolete in the newly evolved scenario and therefore it needs to be revised. Thus for exercising the freedom of expression one must have the freedom of information. In this regard, the approval of the Freedom of Information Bill, 2000 (Information Bill) by Indian Parliament would be a welcome move.

Prior Restraint in U.S.:

In U.S. prior restraint is a legal term related to ‘censorship’ referring to government actions that prevent communications from reaching the public.

William Blackstone defines “Freedom of Press” as the right to be free from prior restraints. Prior restraint is often considered a particularly oppressive form of censorship in American Jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the market place. Thus it is often considered to be the most extreme form of censorship.

U.S. Supreme Court has given many landmark judgments regarding the prior restraint. The first notable case in which the United States Supreme Court ruled on a prior restraint issue was, Near v. Minnesota[6]. In that case the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues. The ruling came about after Jay Near’s newspaper, The Saturday Press, a small local paper that ran countless exposés of Minneapolis’s elected officials’ alleged illicit activities, including gambling, racketeering, and graft, was silenced by the Minnesota Gag Law of 1925, also known as The Public Nuisance Law. Near’s critics called his paper a scandal sheet, and alleged that he tried to extort money threatening to publish attacks on officials and others. In the Near case the Court held that the state had no power to enjoin the publication of the paper in this way – that any such action would be unconstitutional under the First Amendment. It wrote:

“If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.”

In Nebraska Press Assn. v. Stuart[7] S.C. noted:

“The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.

“A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”

Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. Carroll v. Princess Anne[8]; Bantam Books, Inc. v. Sullivan[9]. Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.

This shows the strong later acceptance of what had been a disputed decision when it was first handed down

In the Pentagon Papers case (New York Times Co. v. United States[10]), the Nixon administration sought to enjoin the New York Times and the Washington Post newspapers from publishing excerpts from a top-secret United States Department of Defense history of the United States involvement in the Vietnam War from 1945 to 1971. The government tried to use the “national security” exception that had been suggested in the Near decision. The Supreme Court struck down the injunctions. However, the decision was fragmented, with nine separate opinions being filed in the case. It was not clear at the time what the effect would be on future prior restraint cases.

Prior Restraint in U.K.:

In U.K. historically, restriction of the press has occurred in two ways. The first may be either censorship or mandatory licensing by the government in advance of publication; the second is punishment for printed material, especially that considered by the government to be seditious libel, i.e., material that may “excite disaffection” against constituted authority. Censorship of the press began not long after the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to submit copy to church authorities before publication, in order to prevent heresy. Penalties for bypassing the censors included fines and excommunication. Stronger restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to be applied more to political criticism than religious heresy. John Milton in his Areopagitica (1644) attacked the licensing law and called on Parliament to suppress offensive publications after their appearance if necessary. Milton’s objections to prior restraint eventually became a cornerstone of press freedom, but it was not until 1695 that the licensing and censorship laws were abolished. Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government.

There are several Acts of the United Kingdom Parliament for the protection of official information, mainly related to national security. The latest revision is the Official Secrets Act 1989(1989 chapter 6), which removed the public interest defence by repealing section 2 of the Official Secrets Act 1911. In 2004, a memo containing details of a possible US bombing of broadcaster Al Jazeera was leaked to the press. Attorney General Peter Goldsmith has warned newspapers that they could be prosecuted under the Official Secrets Act if they publish the contents of the memo, saying “You are reminded that to publish the contents of a document which is known to have been unlawfully disclosed by a crown servant is in itself a breach of section 5 of the Official Secrets Act 1989”.

The Terrorism Act 2006 makes it an offence to “glorify” terrorism. There are concerns that this could limit free speech.

DA-Notices are official but voluntary requests to news editors not to publish items on specified subjects, for reasons of national security.

In 2007/2008 It was announced that the trial of Wang Yam, accused of murdering Allan Chappelow would be held ‘in camera’. This was the first murder trial behind closed doors. The UK press was prohibited from speculating as to the reasons for this order.[11]

In 2008/2009 the press was barred from printing the names of concerned parties in the murder of Baby Peter, a 17 month old boy. Websites which published the names of the defendants and the boy came under police investigation for conducting an “internet hate campaign.” [12]

Thus, in U.K. prior restraint can be imposed on the publications, broadcasting of anything by the media.

Prior Restraint In India:

Freedom of the Press was one of the constitutional guarantees persistently demanded by India’s freedom fighters during British colonial rule. The British masters disdainfully turned down the demand on the ground that abstract declarations of rights are useless, unless there exist the will and the means to make them effective. Not surprisingly after Independence and during the framing of India’s Constitution in the Constituent Assembly, the Founding Fathers attached great importance to Freedom of the Press. They believed that central to the concept of a free press is the freedom of political opinion and at the core of that freedom lies the right to criticise and censure the government. Surprisingly freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights in the Indian Constitution. The omission was noticed and criticised in the Constituent Assembly. Dr. B. R. Ambedkar, the principal architect of the Constitution, assured the members that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.

This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Press is implicit in the guarantee of freedom of speech and expression in Article 19(1) (a) of the Constitution[13]. Thus freedom of the press by judicial interpretation has been accorded constitutional status[14]. This is an instance of Constitutional implication. However there is a strong body of opinion, which favours specific mention of freedom of the press as a fundamental right. No fundamental right guaranteed by the Constitution of India is absolute. Freedom of the press also can be restricted provided three distinct and independent prerequisites are satisfied.

(1)   The restriction imposed must have the authority of law to support it. Freedom of the Press, like any other fundamental right, cannot be curtailed by executive orders or administrative instructions, which lack the sanction of law.

(2)   The law must fall squarely within one or more heads of permissible restrictions specified in Article 19(2), namely, (a) security of the State, (b) sovereignty and integrity of India, (c) friendly relations with foreign States, (d) public order, (e) decency or morality, (f) contempt of court, (g) defamation or (h) incitement to an offence[15]. In its landmark judgment in the case of Sakal Papers[16], the Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession.

(3)  The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable[17]

One of the vexed issues before the Court has been that of censorship by way of prior restraint. There is no provision in the Indian Constitution permitting or proscribing censorship. The sting of censorship lies in prior restraint which affects the heart and soul of freedom of the press. Expression is snuffed out before its birth. The communication in question may never see the light of day. Suppression by a stroke of the pen is more likely to be applied by the censoring authorities than suppression through a criminal process and thus there is far less scope for public appraisal and discussion of the matter. That is the real vice of prior restraint and its irresistible attraction to the censor. Is prior restraint intrinsically evil? Is it per se unconstitutional? There is unending debate on this question. In the Japanese Constitution (Article 21) and the German Constitution (Article 5) pre-censorship is prohibited. Again the American Convention on Human Rights (San Jose) 1969 (ACHR) expressly states in Article 13(2) that freedom of expression “shall not be subject to prior censorship”. There was strong American influence in the drafting of the Japanese and German Constitutions after World War II. Yet even in the land of the First Amendment, for which there is more reverence than to the Ten Commandments, and despite the robust American tradition and the thrust of US judicial opinion against censorship, there is no absolute rule against prior restraint. Indeed, its necessity has been recognised, albeit in exceptional cases, by the United States Supreme Court in the seminal case of Near v.Minnesota, the sheet anchor of the opponents of prior restraint. The Court observed that the protection even as to previous restraint is not absolutely unlimited and listed as exceptions obstructions to recruitment during war, publication of military movements, obscenity, incitements to acts of violence and the overthrow by force of orderly government, and words that “may have all the effect of force”[18].

The Supreme Court of India in May 1950 had to resolve the question in Brij Bhushan v. The State of Delhi.[19] Section 7(1)(c) of the East Punjab Safety Act 1949 provided for submission of material for scrutiny if the government was satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to public safety or the maintenance of public order. The Court declared the statutory provision in question unconstitutional on the ground that the restrictions imposed were outside the purview of Article 19(2) as it then stood, which did not include public order as a permissible head of restriction. The Court did not rule that prior censorship is per se unconstitutional. Indeed, in 1957 the Court upheld censorship imposed under the Punjab Special Powers (Press) Act 1956 for a temporary period, which provided for a right of representation to the government[20]. It is noteworthy that another statutory provision imposing censorship without any time limit and without providing any right of representation was struck down by the Court in a judgment delivered on the same day.[21]

India’s worst brush with censorship occurred during the spurious emergency declared by the government of Prime Minister Indira Gandhi on 25 June 1975. Censorship of the Press was imposed for the first time in independent India by the promulgation of a Central Censorship Order, dated 26 June 1975. No censorship was imposed during two previous declarations of emergency, in 1962 and in 1971, when the nation was fighting a war. Under the Indian Constitution during an emergency, fundamental rights, including freedom of speech and expression and the freedom of the press, stand suspended. Censorship, which in normal times would be struck down, becomes immune from constitutional challenge. Taking advantage of the emergency, numerous repressive measures were adopted in the form of executive non-statutory guidelines, and instructions were issued by the censor to the press. One of the instructions of the censor was that “nothing is to be published that is likely to convey the impression of a protest or disapproval of a government measure[22].

Consequently anything that smacked of criticism of governmental measures or action was almost invariably banned, even if the criticism was sober and moderate. The censor’s scissors were applied arbitrarily and in a few cases its decisions bordered on the farcical. Quotations from Mahatma Gandhi, Tagore and Nehru were banned. A statement by the Chairman of the Monopolies and Restrictive Trade Practices Commission criticising the working of public sector undertakings was blacked out. Other ludicrous instances are the bans imposed on news about a member of a former royal family, Begum Vilayat Mahal, squatting at New Delhi railway station; a report about junior lawyers marching to the Delhi High Court; a London report of the arrest of a famous Indian actress for shoplifting; and the news about a meeting of the Wild Life Board, which considered the grant of a hunting licence to a certain Maharajah’s brother.[23]

These bans had nothing to do with the security of the State or preservation of public peace and order but reflected the capricious working of the censoring authorities. Some of the censors directives were sinister, like the ones prohibiting any reference to the transfer of State High Court judges, banning publication of judgments of High Courts which ruled against the censor, “killing” news of the opposition of certain State governments to proposed constitutional amendments, banning reports of alleged payoffs made during the purchase of Boeing aircraft and suppressing criticism of family planning programs. The object was not merely withholding of information but manipulation of news and views to legitimise the emergency and make it acceptable. One tragic consequence was that inhuman practices like forcible sterilisation of young men after removing them from buses and other excesses of over-enthusiastic family planning officials came to light much later after the events, by which time family planning had become an anathema to the rural masses. An urgent and important programme suffered a serious setback owing to suppression of freedom of the press by the censor.

The Indian judiciary, especially the State High Courts, displayed commendable courage in striking down the censor’s orders and upheld the right of dissent even during the emergency. The High Court of Bombay in its landmark judgment in Binod Rao v. Masani delivered on 10 February 1976 declared:

It is not the function of the censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to tow along in a single file or to speak in chorus with one voice. It is not for him to exercise his statutory powers to force public opinion in a single mould or to turn the Press into an instrument for brainwashing the public. Under the Censorship Order the censor is appointed the nursemaid of democracy and not its gravedigger. · Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication[24].

The Court, however, cautioned that the voice of dissent cannot take the form of incitement of revolutionary or subversive activities, for then instead of serving democracy it would subvert it. The High Court of Gujarat in its judgment in C. Vaidya v. D Penha castigated the censorship directives for imposing upon the people “a mask of suffocation and strangulation”. In construing the expression “prejudicial report”, the Court observed: “To peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out of power at the next general elections is not a prejudicial report at all. Such a public education is the primary need of every democracy.[25] These judgments were delivered at a time when “inconvenient” judges during the emergency were transferred from one State to another in India. Notwithstanding this, the High Courts rose to the occasion. Indeed it was their finest hour. In R. Rajagopal v. State of TN[26] the Supreme Court held that neither the government nor the officials who apprehend that they may be defamed, had the right to impose a prior restraint upon the publication of the autobiography of Auto Shankar, a convict serving sentence of death in jail, which was likely to reveal a nexus between criminals and high ups in the police. The Court held that “The remedy of public officials/public figures, if any, will arise only after the publication.

The Court has however accepted prior restraint in the case of exhibition of motion pictures because. it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture … It, however, emphasised the necessity for a corrective machinery in the shape of an independent tribunal and also a reasonable time limit for the decision of the censoring authorities. In laying down certain guidelines for the censor, the Court was at pains to point out that the “standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom.”[27]

Courts in India have ruled that in adjudging the question of proscription of articles in the press or banning the exhibition of a movie or programs in the TV channels, the standards to be employed must be of reasonable, strong-minded human beings and not those of weak and vacillating minds nor of those who scent danger or perceive hurt and insult in every critical point of view. It is not permissible to stifle all free expression of opinion by imagining lurking dangers in every corner and discovering sharp curves and hairpin bends when all that exists is a straight road. The correct test is: what impression the article or movie as a whole would produce upon a man of ordinary commonsense.[28]

Indian Legislature has passed other legislations regarding the functioning of media:

  • The Press and Registration of Books Act, 1867– This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses.
  • The Press (Objectionable Matters) Act, 1951-This enactment provides against the printing and publication of incitement to crime and other objectionable matters.
  • The Newspaper (Prices and Pages) Act, 1956-This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter.
  • Defence of India Act, 1962- This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom of the Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper.

· Delivery of Books and Newspapers (Public Libraries) Act, 1954 – According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.

  • · The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service conditions for newspaper employees and journalists.
  • · Civil Defence Act, 1968 – It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence.
  • · Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament.

Broadcast – the broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB,[29] the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country.

  • · The Broadcasting Code – adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned.
  • · Cable Television Networks (Regulation) Act, 1995 – basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier.
  • · Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-to-Home TV service in Ku band in India.[30]

Conclusion:

In keeping with its affirmation that freedom of expression is “one of the essential foundations of a [democratic] society”, the Court has clearly shown a preference for freedom of press. But this preference has many a times been a bane to our society; take for instance the 26/11 Mumbai Terror attack, Indian media failed to rise to the occasion, it was a tragedy that unfolded in Mumbai for 48 hrs but channels didn’t appear somber and regulated.
Instead, they were over-excited and showing everything as if it was a ‘live war reporting’ though wars isn’t reported in this manner either. There were alerts, flashes, scrawls and breaking new for 50 hrs.
The aim was to grab eyeballs. Ads were not shown as the viewer could switch to other channel in the meantime. The news channels wanted highest TRP in this troubled times, so that they can later demand higher rates for advertisements and stay up on chart.

Worst was the conduct of the so-called celebrity reporters who wanted their cameramen to zoom on everything as they lay on the ground. A star reporter-cum-anchor spoke lying on the ground to create the impact that he was reporting from warzone.

Others were not sure how to be on the ground and either grotesquely prostrated themselves on laid down on their back or side. The same anchor was drunk when he first appeared in the first hour of the tragedy. In the end I would like to conclude that media has social responsibility on its shoulder and if such instances happen they should not go overboard just for the sake of gaining TRP’s.  They should be curbed from broadcasting each and everything they want to cover, either it should be done morally or a law should be made which should be followed strictly on media which should censor its activities. Take for instance in U.S. they don’t have laws for prior restraint on media but still during 9/11 attack they were not allowed to cover all the activities which happened, this shows that how socially responsible media should be. Thus prior restraint is a need of hour to some extent.

[1] John McEldowney, www.answers.com

[2] (1950) S.C.R. 594

[3] (1950) S.C.R, 605

[4] Corazon Aquino

[5] Janis, M., Kay, R., and Bradley, A. (1995), European Human Rights Law, (Oxford: Clarendon Press) P.157.

[6] 283 U.S. 697 (1931)

[7] 427 U.S. 539 (1979)

[8] 393 U.S. 175, 181 (1968)

[9] 372 U.S. 58, 70 (1963)

[10] 403 U.S. 713 (1971)

[11] Regina v. Wang Yam, [2008] EWCA Crim. 269, United Kingdom Court of Appeal, Criminal Division, 28 January 2008

[12] London: BBC. 2008-11-20. Retrieved 2009-05-24.

[13] Article 19 (1) All citizens shall have the right – (a) to freedom of speech and expression.

[14] Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India, AIR 1958 SC 578; Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305; Bennett Coleman Co. v. Union of India, AIR 1973 SC 106

[15] Article 19(2) – Nothing in sub-clause (1) shall affect the operation of any existing law, or prevent the State from   making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

[16] Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305

[17] Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 at 119; State of Madras v. G. Rao, AIR 1952 SC 196 at 199, 200; Tikaramji v. State of Uttar Pradesh, AIR 1956 SC 676 at 711; Express Newspapers, AIR 1958 SC 578 at 621; State of Bihar v. R.N. Mishra, AIR 1971 SC 1667

[18] (1931) 283 US 697

[19] Supra at 3

[20] Virendra Kumar v. State of Punjab, AIR 1957 SC 896

[21] Ibid, at 903

[22] Sorabjee, Soli J (1977), The Emergency Censorship and the Press in India 1975-77, Central News Agency (Pvt.)   Ltd. p.13

[23] Ibid, at 31, 27, 29

[24] (1976) 78 Bom. L.R. 125 at 169

[25] C. Vaidya v. D’Penha in Sp. CA 141/1976, 22 March 1976 (unreported)

[26] 1994 (6) SCC 632 at 649

[27] K.A. Abbas v. Union of India, AIR 1971 SC 481 at 489, 498

[28] Bhagwati Charan v. Provincial Government, AIR 1947 Nag 1; Ramesh v. Union of India, 1988 (1) SCC 668 at 675; Binod Rao v. Masani, (1976) 78 Bom. L.R. 125 at 169

[29] (1995) 2 SCC 161.

[30] The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the Government vide notification No. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications.

Rape Laws in India

Rape is a stigma which exists in the society from a long time. The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape. Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.

U/s 228A of Indian Penal Code, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.

U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.

U/s 53(1) of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victim are given.

U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.

The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases comes very late. Sometimes it comes so late that either of the parties had died. So, there should be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice delayed is justice denied.”

As every coin has two sides, in this case also there are two sides. Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. “Law is there for vigilant.”

Introduction:

Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life”.

Rape is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, normally, the right to life contained in Article 21 .

Incidence and prevalence:

South Africa has the highest per capita rate of reported rapes in the world: 119 per 100000 people, according to the UN. That compares with 30 per 100000 in the US. Analysts and women’s advocacy groups argue South Africa’s total, including unreported rapes could be five to nine times higher .

Police statistics show more than 50000 rapes are reported every year . In 1987 and 1991 number of cases reported were7767 and 9793 respectively. About 26% (11112) increase in number in the year 1992 – (NCRB). There is one rape in every 54 minutes .

As observed by Justice Arjit Pasayat:

” While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”

Justice Krishna Iyer has observed in a very famous case of Rafiq v. State :

“A murderer kills the body but a rapist kills the soul.”

What is Rape?

Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called “assault by penetration”, which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person’s consent.

Sexual offence act, 2003 states as follows:-

Rape

(1) A person (A) commits an offence if-

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents .

With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon’ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it’s punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense.

Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860 )

A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

1. Against her will.

2. Without her consent.

3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

6. With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

AMENDMENTS TO RAPE LAWS IN 1983 were made to address mainly 3 issues :

A. Minimum Punishment in rape cases (IPC Section 376 sub section 1)

B. Special cases of rape (IPC Section 376 subsection 2 a-g )& A)

C. Marital Rape (IPC Section 376 A)

D. Abuse of official power (IPC Section 376,B,C,D)

A. MINIUM PUNISHMENT (Section 376 subsection 1 of Indian Penal Code)

1. Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both : Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

Issues

Prior to this amendment, minimum punishment wasn’t specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment can be reduced.

B. SPECIAL CASES OF RAPE like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code)

1. Rape of a woman who is under twelve years of age [Sec.376 (2) (f)]

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Issues

Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.

2. Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused

3. Gang Rape ( Sec.376 Subsection 2- g)

“Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. ”

Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof :

If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

4. Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):

Rape committed on a woman in their or their subordinate’s custody by

a) police officer

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him;

b) public servant

c) management or the staff of a jail, remand home or other place of custody or a women’s or children’s institution

d) management or on the staff of a hospital

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :Provided that the court.

To understand the impact of sexual harassment on women one must listen to the account of its victims as no one conveys the meaning and truth of sexual harassment better than the women who have endured it. In response to the question “What kind of emotional response do eve-teasing /sexual harassment evoke in you”, not a single woman ticked the category of “indifferent”. The survey of the Gender Study Group shows that most women felt disgusted, insulted and scared by any sort of harassment.

Women often internalise male perceptions of sexual harassment and blame themselves for having brought on the harassment. They not only doubt the validity of their own experiences but begin to believe that they themselves must be ‘abnormal’, ‘cheap’, ‘indecent’ or deserving the violence that comes their way.

Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that all cases of sexual harassment are such- where the accused is guilty of conceiving the intention of a sexual intercourse. But it also depends on each individual case and circumstances, because it may well be the case that the woman may also be at fault.

Every 60 minutes, two women are raped in this country. What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB). A total of 20,737 cases of rape were reported last year registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the “rape capital” of the country by topping the list of such incidents.

Going by the NCRB statistics, two women are raped in the country every hour. Madhya Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records of high incidence in other states include Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were sexually assaulted.

In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbours were involved. Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved. “Everywhere in this country, over 90 per cent of the victims are raped by person known to them,” a senior police official said.

According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof.

In instances where women have reported such illegal and unwelcome behavior, there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so.

As Kiran Bedi., Retd. Joint Commissioner, Special Branch has observed:

“The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it.”

In the Mathura rape case , wherein Mathura- a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.

Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.

The case came for hearing on 1st June, 1974 in the session’s court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.

On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

When the appeal was made to the Supreme Court, the Senior Counsel “Ram Jethmalani” while defending the accused Policemen divided the concept of consent into two i.e. Express and Implied consent. He said that there was not express consent but it was implied because Mathura raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc, he again said if there had not been any consent, there would have been at least a cry for help. These circumstances are enough to show that there was implied consent. The Supreme Court acquitted both the accused and held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act , which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

In Mohd.Habib Vs State , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.

In State of Punjab vs. Gurmit Singh , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”

In Delhi Domestic Working Women v. Union of India , the Apex Court laid down the following broad guidelines:

• The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly.

• Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary.

• The police should be under duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

• A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

• In all rape trials anonymity of victim must be maintained, as far as necessary.

• A “Criminal Injuries Compensation Board” should be established.

• Interim compensation should be given to rape victim even if the case is still going on in the court.

• Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence.

• Compensation should be provided to rape victim to rehabilitate herself.

In B. Gautam v. Shubra Chakraborthy , it was held that Rs. 1000 per month should be given to rape victim as an interim compensation.

In Chairman, Railway Board vs. Chandrima Das , a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon) – a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.

An appeal was preferred and it was contended by the state that:

a) The railway was not liable to pay the compensation to the victim for she was a foreigner.

b) That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226.

Considering the above said contentions, the Supreme Court observed:

“Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution.”

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.

Causes of Increased Rape Cases in India:

Rape, molestation and abductions, the crimes are numerous but low conviction rates for the same is one of the major reasons for the growing number of offences against women, point out experts.

“Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we have today. There is hardly any deterrence. Law should provide fast track courts to deal with such cases,” says Girija Vyas, Chairperson, National Commission for Women (NCW).

While there were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction rate for such crimes, is below 30 per cent. For rape it is just a dismal 27 per cent.

Brinda Karat, All India Democratic Women’s Association (AIDWA), member says, “I have raised the issue in the Parliament several times that there is a need to step up conviction rate in rape cases drastically. Poor legal system, wrong understanding of policemen in these cases and lengthy procedures especially in child rape where after horrifying rounds of investigation the victim starts feeling that she is an accused and should not have registered the case, are few reasons for low conviction rate.”

“In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and have demanded enforcement of stringent laws by government,” she adds.

Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a moving car in the national capital, Vyas says, “This is a special case and it should be dealt with a fast track court. On many occasions, complains do not get registered on time and then it is very difficult to prove that rape actually happened. It should be registered within 24 hours of the incident.”

The accused believe they can get away with it. Officials are corrupt and easily bribed (some are even committing rapes themselves). Women are shamed and humiliated when they come forward because of the backward notion that it’s the woman’s fault (even when the ‘women’ are young children). If they make a case, it becomes public knowledge and their families and society shun them in many cases as they are then seen as ‘damaged goods’. If unmarried they will have great difficulty getting married. Courts don’t always do justice for the victim and find rapists not guilty for ridiculous reasons.

Predators know this and take advantage of it. Even if they get caught, if they have enough money or influence, nothing will happen to them. A woman would have to turn the case into a media circus to have a chance at justice and 90% of rape victims in India would not do so out of fear and shame .

There is a need for review in certain provisions under various laws related to rape so that victims get justice.

The National Commission for Women has identified nine areas for review . These are:

1. Review of the definition of rape

2. Reduction of procedural delays

3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869

4. Whether exception to section 375 should be deleted

5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted.

6. Whether statutory provisions are needed for compensation to the rape victim

7. Whether provisions for counseling legal aid should be made mandatory under laws.

8. Death penalty to persons convicted for rape

9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.

Conclusion:

The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.

Law remains but the number of victims (including minor) continues to increase destroying the very soul of the helpless women. The concept of marital rape does not exist in India. Contrary to the popular belief rape is almost never perpetrated for sexual gratification. It is an ‘acts of violence that happens to be expressed through sexual means’.

The Amendment 1983 has brought about some important changes in the existing laws of rape as a response to the growing public opinion demanding more stringent anti rape laws. It amends Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.

Severe and certain punishment in a time bound manner, of the rapists has some deterrent value. Arrest alone may not constitute a strong societal response. Lengthy prison sentences have some behavior-altering deterrent values. Many well-known jurists and public men have advocated capital punishment for the criminals who commit rape as it is an offence worse than murder so far as its impact is concerned. Still there is need for amending the anomaly related to the age of consent, and of wife in accordance with the Marriage Act in India.

Anti-defection law

SCHEDULE X OF OUR INDIAN CONSTITUTION- A MYTH OR A REALITY?

Our Indian Bureaucratic and Legislative system is running through our politicians,politicians comes from the word “Politics.” The word politics comes from the Greek word “Politika” which means “of, for, or relating to citizens,” but our Indian Politics according to a layman is a bog where a person once enters never comes out. Politicians make promises but never fulfill those promises; they work on filling their pockets and making life of people miserable. Earlier after the Independence, it was very easy for a legislative elected member to hop around from one party to another to fulfill their ambitions, but this led to many Governments toppling around, keeping in mind all this our legislatures made an amendment in the year 1985 which was our 52nd Amendment Act and passed a law called “Anti-defection law” which added a new schedule to our Constitution, i.e., X Schedule.

Anti-defection lawIntroduction:

Anti-defection law, its main intent is to combat ‘the evil of political defections.’ This law was passed soon after Lt. Shri. Rajiv Gandhi became the Prime Minister of the country with a massive mandate. This law would not have been passed if there had been no Rajiv Gandhi and his government with an unparalleled massive majority. This law was passed so that it curbs the political deflections but the ever increasing hunger of our legislatures and with our excellent legal fraternity it was not a difficult task to find some loopholes in this law and they used it to their interest.

What is Anti-defection law?

Schedule X of our Constitution provides for Anti-defection law, it is as follows:-

1. Interpretation.—In this Schedule, unless the context otherwise requires,—

( a ) ” H o u s e ” m e a n s   e i t h e r   H o u s e   o f   P a r l i a m e n t   o r   t h e   L e g i s l a t i v e   A s s e m b l y   o r ,

a s   t h e   c a s e   m a y   b e , e i t h e r   H o u s e   o f   t h e   L e g i s l a t u r e   o f   a   State ;

( b ) ” l e g i s l a t u r e p a r t y ” , i n  r e l a t i o n  t o  a  m e m b e r  o f  a  H o u s e   b e l o n g i n g   t o   a n y

p o l i t i c a l   p a r t y    i n   a c c o r d a n c e   wi t h  t h e   p r o v i s i o n   s o   f paragraph   2   o r   p a r a g r a p h 4 , m e a n s   t h e    g r o u p   c o n s i s t i n g   o f    a l l   t h e    me m b e r s    o f    t h a t    H o u s e    f o r    t h e    t i m e   b e i n g    b e l o n g i n g    t o   t h a t     p o l i t i c a l    p a r t y    i n    a c c o r d a n c e    w i t h    t h e    s a i d    p r o v i s i o n s ;

( c ) ” o r i g i n a l   p o l i t i c a l     p a r t y ” , i n    r e l a t i o n    t o    a    m e m b e r   o f      a     H o u s e , m e a n s    t h e

p o l i t i c a l p a r t y t o w h i c h h e b e l o n g s f o r t h e p u r p o s e s o f s u b – p a r a g r a p h ( 1 ) o f

p a r a g r a p h 2 ;

( d ) ” p a r a g r a p h ” m e a n s a p a r a g r a p h o f t h i s S c h e d u l e .

2. Disqualification on ground of defection.—(1) Subject to the provisions of [Paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—

( a ) if he has voluntarily given up his membership of such political party ; or

( b ) if he votes or abstains from voting in such House contrary to any direction

issued by the political party to which he belongs or by any person or authority

authorised by it in this behalf , without obtaining , in either case , the prior permission of such political party , person or authority and such voting or abstention has not

been condoned by such political party , person or authority within fifteen days from the date of such voting or abstention .

Explanation.—For the purposes of this sub-paragraph,—

( a ) an elected member of a House shall be deemed to belong to the political

party, if any , by which he was set up as a candidate for election as such member ;

( b ) a nominated member of a House shall , —

(i) where he is a member of any political party on the date of his nomination as such

member, be deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which he

becomes, or, as the case may be, first becomes, a member before the expiry of six months from

the date on which he takes his seat after complying with the requirements of article 99 or, as the

case may be, article 188.

(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election

(3) A nominated member of a House shall be disqualified for being a member of the House if he

joins any political party after the expiry of six months from the date on which he takes his seat after Complying with the requirements of article 99 or, as the case may be, article 188.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,—

(i) where he was a member of political party immediately before such commencement , be deemed , for the purposes of sub-paragraph (1) of this paragraph , to have been elected as a member of such House as a candidate set up by such political party ;

(ii) in any other case , be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or , as the case may be , be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph .

* * * * *

4. Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—

(a) have become members of such other political party or , as the case may be, of a new political party formed by such merger ; or

( b ) have not accepted the merger and opted to function as a separate group, and from the time of such merger , such other political party or new political party or group , as the case may be , shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph ( 1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph .

(2) For the purposes of sub-paragraph (1) of this paragraph , the merger of the original political party of a member of a House shall be deemed to have taken place if , and only if , not less than two – thirds of the members of the legislature party concerned have agreed to such merger .

5. Exemption , —Notwithstanding anything contained in this Schedule , a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State , shall not be disqualified under this Schedule, —

( a ) if he , by reason of his election to such office , voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not , so long as he continues to hold such office thereafter , rejoin that political party or become a member of another political party ; or

( b ) if he , having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election , rejoins such political party after he ceases to hold such office .

6 . Decision on questions as to disqualification on ground of defection . —( 1 ) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule , the question shall be referred for the decision of the Chairman or , as the case may be , the Speaker of such House and his decision shall be final :

Provided that where the question which has arisen is as to whether the Chairman or the Speaker

of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to

disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.

7. Bar of jurisdiction of courts.—notwithstanding anything in this Constitution, no court shall

have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.

8. Rules.—(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or

the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in

particular, and without prejudice to the generality of the foregoing, such rules may provide for—

( a ) t h e m a i n t e n a n c e o f r e g i s t e r s o r o t h e r r e c o r d s a s t o t h e p o l i t i c a l p a r t i e s , i f

a n y , t o w h i c h d i f f e r e n t m e m b e r s o f t h e H o u s e b e l o n g ;

( b ) t h e r e p o r t w h i c h t h e l e a d e r o f a l e g i s l a t u r e p a r t y i n r e l a t i o n t o a m e m b e r o f

a H o u s e s h a l l f u r n i s h w i t h r e g a r d t o a ny c o n d o n a t i o n o f t h e n a t u r e r e f e r r e d t o i n

c l a u s e ( b ) o f s u b – p a r a g r a p h ( 1 ) o f p a r a g r a p h 2 i n r e s p e c t o f s u c h m e m b e r , t h e t i m e

w i t h i n w h i c h a n d t h e a u t h o r i t y t o w h o m s u c h r e p o r t s h a l l b e f u r n i s h e d ;

( c ) t h e r e p o r t s w h i c h a p o l i t i c a l p a r t y s h a l l f u r n i s h w i t h r e g a r d t o a d m i s s i o n t o

s u c h p o l i t i c a l p a r t y o f a n y m e m b e r s o f t h e H o u s e a n d t h e o f f i c e r o f t h e H o u s e t o

w h o m s u c h r e p o r t s s h a l l b e f u r n i s h e d ; a n d

( d ) t h e p r o c e d u r e f o r d e c i d i n g a n y q u e s t io n r e f e r r e d t o i n s u b – p a r a g r a p h ( 1 ) o f

p a r a g r a p h 6 i n c l u d i n g t h e p r o c e d u r e f o r a n y i n q u i r y w h i c h m a y b e m a d e f o r t h e

p u r p o s e o f d e c i d i n g s u c h q u e s t i o n .

(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this

paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.

(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of

Article 105 or, as the case may be, article 194 , and to any other power which he may have

under this Constitution direct that any willful contravention by any person of the rules made

under this paragraph may be dealt with in the same manner as a breach of privilege of the

House.

Advantages and Disadvantages of this law:

This law have its own advantage and disadvantages and it is upon our politicians and our citizens to see how they interpret this law and help in the proper functioning of the democracy.

Advantages:

• Provides stability to the government by preventing shifts of party allegiance.

• Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies. Also promotes party discipline.

Disadvantages:

• By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.

• Interferes with the member’s freedom of speech and expression by curbing dissent against party policies.

Disqualifications in Parliament and State Legislatures :

According to a statistics from 2004, from 1985 to 2004 there had been 88 complaints of anti-defection made in Parliament and 268 complaints in State Legislatures, out of which 26 were approved in the Parliament and 113 in State Legislatures. Punjab State Legislature tops the chart with 23 disqualifications till 2004 followed by Nagaland with 15 and Goa with 12.

The Law Relating to Defection in Other Countries :

Anti- defection law is not only practiced in India but it is provided by various other countries like Bangladesh, Kenya, South Africa, etc. Article 70 of the Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The dispute is referred by the Speaker to the Election Commission.

Section 40 of the Kenyan Constitution states that a member who resigns from his party has to vacate his seat. The decision is by the Speaker, and the member may appeal to the High Court.

Article 46 of the Singapore Constitution says a member must vacate his seat if he resigns, or is expelled from his party. Article 48 states that Parliament decides on any question relating to the disqualification of a member.

Section 47 of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him.

Defect of Defections:

Defections numbering more than one-third of the party’s strength were considered to be legal. It also provided for the disqualification of individual members defecting from the party through which the member was elected. Even here, the law is open to considerable interpretation, and in some state legislatures the bias of the Speaker leads to confusion, often resulting in litigation.

The first challenge to the anti-defection law was made in the Punjab and Haryana high court in Parkash Singh Badal and others v. Union of India and others . One of the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 of the Constitution, wherein the court held: “So far as the right of a member under Article 105 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the 52nd Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 of the Constitution.(Para 28).”

The Constitution (32nd Amendment) Bill 1973 and the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in relation to questions on disqualification on ground of defection.

The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that questions of disqualification on ground of defection shall be decided by chairmen and speakers of the legislative bodies. The intention was to have speedier adjudicative processes under the Tenth Schedule. This provision was a subject matter of serious debate in both Houses of Parliament when the bill was being passed.

The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it mandatory for all those switching political sides — whether singly or in groups — to resign their legislative membership. They now have to seek re-election if they defect and cannot continue in office by engineering a “split” of one-third of members, or in the guise of a “continuing split of a party”. The amendment also bars legislators from holding, post-defection, any office of profit. This amendment has thus made defections virtually impossible and is an important step forward in cleansing politics. Irony of the situation today is that the events have nullified the real intent of the dream of Rajiv Gandhi.

There have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected. Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy and 52nd constitutional amendment. The ingenious human brain invented innovative ideas to obtain resignations and, in effect, made the anti-defection law a cover to hide their heinous crime.

This law excluded the jurisdiction of judiciary from reviewing the decisions of Speakers. This part was held to be unconstitutional by Supreme Court, while it upheld the rest of the law. The Supreme Court was unanimous in holding that paragraph 7 of tenth schedule completely excluded jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 in respect of any matter connected with the disqualification of the member of a House. The Constitution does not allow the legislature to limit the powers of judiciary. ‘The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review’, Supreme Court said. Accordingly the Supreme Court reviewed and struck down the order passed by Speaker of Goa Assembly for disqualifying two members in violation of constitutional mandate contained in paragraph 3 of Tenth Schedule to the Constitution.

If we go deep into the impact of this law, it curbs the legislators’ freedom of opposing the wrong policies, bad leaders and anti-people bills proposed by the ‘High Command’ in arbitrary and undemocratic manner. This law has given additional dictatorial power to the political party to keep the flock together for an entire term.

Jeeth Choudhary in his article ‘Whether Dissent Equals Defection in the Indian Parliament?’ Concluded: “Section 2(b) of the Tenth Schedule puts the Member of Parliament into the straight jacket of obedience to the despotic dictates of the party whips which undermines the democratic spirit. It also violates the principle of representative democracy by empowering the party, and undermining the relationship between elected representatives and their constituents. The anti defection law makes a mockery of parliamentary democracy by marginalizing debates, as the legislators are not allowed to dissent, without being disqualified by the House. Disruptions, rather than substantive debate, become the only form of opposition possible. Parliamentary debate has thereby become largely redundant. Without letting Indian politics degenerate like this, the author supports the proposed amendment so that our politicians can be allowed to publicly and legitimately debate political ideology, negotiate electoral prospect and be persuaded by ideas’.

The Tenth Schedule has laid down certain norms for keeping the flock of legislators of each party together, and the ‘whips’ in the hands of legislative party leaders reducing the hon’ble leaders and people’s representatives into shepherds and sheep. As the political parties invented mechanisms to fail this constitutional legislation, the judiciary played a very significant role in upholding the legality and morality of the law besides expanding its horizons to curb most treacherous practice of sudden political disloyalty. This Tenth Schedule whenever used enhancing the burden of courts. The political parties, instead of maintaining standards within the party with effective leadership, are resorting to litigation, begging the courts to decide the political issues, which they failed to settle. The Karnataka High Court is now engaged with the issue of political leadership of ruling party and manipulative politics of opposition party. This is another unfortunate development. It is not fair to blame judiciary for taking time to decide this tricky question within the frame work of constitution. Neither the Governor nor the Speaker is bona fide. Their moves are not fair. They desperately try to use Constitutional power to settle political scores and wreck political vengeance. In the process they just do not care the people’s will in electing a party to power, for whatever reasons that might be.

Dependents and Independents

There are a few nominated seats provided by the Constitution in legislative houses. Unless he is dependent, he cannot be nominated as legislator. Hence he can decide his loyalty. A nominated member of a house will be disqualified if he joins any political party after six months. That means law permits him to be loyal or disloyal to nominating party only for six months. (Section 2(3) of Tenth Schedule of Constitution of India)

It is wrong to say that there are no provisions for disqualifying independent members for defection from their ‘independent’ status. If an independent legislator joins a political party he would lose membership. Law mandates an independent legislator to maintain the independent status. He can choose to support any political party but should not attach himself to any. . This decision should be supported by the material placed on record. . In Jagjit Singh v State of Haryana the legislators were elected as Members of Assembly as independent candidates. Later they joined a political party and news of their joining was reported in print as well as electronic media. That fact was allegedly admitted

by members in an interview given to a TV news channel. Thereafter those members were

disqualified from being members of Assembly by Speaker. It was challenged. The Supreme Court held: “when an independent member is alleged to have joined a political party the test to be applied is whether the member has given up his independent character on which he was elected. This has to be determined on appreciation of material on record and conduct of the member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on facts of each case. The substance and spirit of anti-defection provisions are the guiding factors”. Disqualification of these members by speaker was upheld, despite the allegation of procedural defect in enquiry.

Supreme Court also clarified one more question in Jagjit Singh case: “Where a sole member of a political party in an Assembly joins another political party, he can not get protection of paragraph 3 of Tenth Schedule of the Constitution and will be disqualified from being member under paragraph 2 of the Tenth Schedule of the Constitution.”

Judicial interpretation by Courts :

In Kihota Hollohon vs. Zachilhu and Others a question was raised that whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Apex Court held that “The provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution.” In the present case few more issues were raised that whether Para 6 & 7 of the X schedule are constitutional or not? The Supreme Court held that to the extend that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Para 7 seeks to change the operation and effect of Articles 136, 226 and 227 of the Constitution which give the High Courts and Supreme Court jurisdiction in such cases. Any such provision is required to be ratified by state legislatures as per Article 368(2). The paragraph was therefore held invalid as it had not been ratified.

In another case an issue was raised that whether a member can be said to voluntarily give up his membership of a Party , if he joins another party after being expelled by his old political party, it was held by S.C. that “Once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.”

In another case it was asked whether a Speaker can review his own decision to disqualify a member under the Tenth Schedule, it was held that The Speaker of a House does not have the power to review his own decisions

to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either.

In Ravi S, Nayak v. Union of India two issues were raised that whether the Speaker of a legislature is bound by the directions of a Court and Whether judicial review by courts extends to rules framed under the Tenth Schedule, it was held by the Hon’ble Apex Court that “the orders passed by a speaker are subject to judicial review and rules under the Tenth Schedule are procedural in nature. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny.”

A very important issue regarding that when can a court review the Speaker’s decision making process under the Tenth Schedule was answered by the S.C. in Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. , it was held that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.

Recent Orders on Disqualification by the Speaker for Defection :

• Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P.P. Koya, JD(U), (January 9, 2009). Dr. Koya defied a party whip requiring him to be present in the House and vote against the Motion of Confidence for the government. He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained from voting by remaining absent, and the evidence of the ‘illness’ is not sufficient to conclude that he was so ill that he could not be present in the House.

• Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008). Shri Prasad defied a party whip requiring him to be present in the House. In his defence, he denied that any whip was issued or served. The Speaker held that in view of the fact that there is evidence to show that the whip had been delivered to Shri Prasad’s house, and had been duly received, it cannot be said that Shri Prasad had no knowledge of the whip.

• Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress, (September 10, 2008). The INC alleged that Shri Bishnoi often dissented from, and criticized the Congress government publicly, and had demanded the dismissal of the government in Haryana. The Speaker held that a person getting elected as a candidate of a political party also gets elected because of the programs of the party. If the person leaves the party, he should go back before the electorate.

• Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008). It was alleged that Shri Akhlaque joined the Samajwadi Party in a public meeting. It was alleged that at this meeting, Shri Akhlaque had said that at heart, he had always been a member of the SP. The Speaker reasoned that there is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held Shri Akhlaque disqualified for having voluntarily given up membership of the BSP.

• The most recent case relating to anti-defection is from the Karnataka State Legislature where B.J.P. is the ruling party and 14 members of B.J.P. and 5 independent members sent a letter of discontent against the Chief Minister. A complaint was made against them and speaker disqualified them from their membership. The case is pending in the S.C.

Recommendations of Various Bodies on Reforming the Anti-Defection Law:

 Dinesh Goswami Committee on electoral reforms (1990)

 Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.

 The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.

 Law Commission (170th Report, 1999)

 Provisions which exempt splits and mergers from disqualification to be deleted.

 Pre-poll electoral fronts should be treated as political parties under anti-defection law.

 Political parties should limit issuance of whips to instances only when the government is in danger.

 Election Commission

 Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

 Constitution Review Commission (2002)

 Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.

 The vote cast by a defector to topple a government should be treated as invalid.

Conclusion:

Anti-defection law when it was passed, it aimed at bringing down the political defect but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question have arose that ‘whether achieving the goals of this law a reality or a myth?’ Politicians found loopholes in this law and used it for their own benefit.

It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.

Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their best with the help of citizens and using the method of ‘non-violence’ and ‘satyagrah’ which were adopted by the father of the nation ‘Mahatma Gandhi’ to eradicate Britishers from the country and doing their best to make sure that our sleeping government should wake up and start taking steps towards eradicating political corruption and only this will help in achieving the goal which was set while passing this law. This law can also work if certain recommendations mentioned above are taken into consideration and an amendment be made in this law.

In the end I would like to quote that “ a government, for protecting business only, is about a carcass, and soon falls by its own corruption and decay,” so the government has a duty to stand and deliver now and not let this law turn into a myth.