Wednesday, February 27, 2013

Land Acquisition, Development and the Constitution

In an article published in this month's Seminar Magazine, I argue that the debates surrounding the adoption of a fundamental right to property in the Constitution were centred around the somewhat paradoxical desire to achieve a liberal democratic legal order which guaranteed the rights to liberty, equality and property, while simultaneously embarking on a transformation of the economic and social order considered imperative to prevent a revolution. This transformation was pegged on a development strategy involving a move from a feudal agrarian to a capital intensive industrial society. A major component of this transformative agenda was land reform, involving zamindari abolition and redistribution of land among the landless peasants. Equally important, however, was state planned industrial growth and encouragement of growth of private industry. 

The article goes on to assess the history of land acquisition laws in this country against this backdrop. In particular, it analyses the key features of the Land Acquisition Act, 1894, including the major problems with its implementation. It then analyses the proposed Land Acquisition Rehabilitation and Resettlement Bill, with a view to determining the extent to which the bill addresses the problems with the Land Acquisition Act, 1894. Finally, the article describes the special constitutional provisions for the Scheduled Areas as contained in the Fifth and Sixth Schedules and analyses to what extent the LARR bill is compliant with existing constitutional guarantees.

The article can be accessed at this link. I have previously written about the fundamental right to property and issues of land acquisition in the context of development here, here, and here

Tuesday, February 26, 2013

3rd Annual SLR Essay Competition 2013

The Socio-Legal Review, with Khaitan and Co. and Sterling Developers, announces the 3rd Annual Essay Competition 2012-13, as part of its initiate to encourage writing on issues of contemporary relevance among students in South Asia.

The topics for this year's competition are:

a. Legislating on Land Acquisition: A Possible Consensual Model?
b. Extending Social Security to Developing Countries
c. The Viability of Supra-State Entities: The EU and Beyond

The deadline for submission of entries is March 31st, 2013.

Monday, February 25, 2013

Death and Delays

Continuing the conversation on the death penalty, here is an interesting post by Vrinda Bhandari on the Bhullar case and its implications both for the rarest of rare case doctrine, as well as for the issue of delays in deciding clemancy petitions.

Call for Applications for Doctoral and Post Doctoral fellowships for International Research Project on Proportionality Analysis


Country specialists for international research group on proportionality analysis
Five half time positions available in the following countries: South Africa, Canada, Germany, India and Poland.
Academic background: A doctorate degree in law or in one of the fields in the social sciences (e.g. political science, economics, sociology, psychology); For researchers without a doctorate degree in law, a strong background in law is required; Experience (i.e. published works) using social science research methods: qualitative and/or quantitative (e.g. interviews, archival work, organizational research, surveys, experiments, etc.).
Each country specialist will be a member of an international group of researchers headed by the principal investigator (PI). The country specialist will plan and manage the project's research activities in his/her country, in coordination with the rest of the group and the PI (The tasks detailed in this document can be also divided between two researchers in a country, in coordination with the PI).
These activities involve:
(1)        Conducting a review of the legal aspects of proportionality analysis (PA) in her/his country, as part of a comparative legal study that constitutes an important first stage of the project. This research will be in collaborations with the research group and the PI;
(2)        Conducting a study of the policy making process in her/his country with an emphasis on the existing integration of human rights and proportionality considerations in this process. This study will also be part of a comparative policy study which will be undertaken by the research group. This will involve original data gathering such as interviews with relevant office-holders, archival documents, participant-observations, and other methods, as will deem appropriate and practical in coordination with the principal investigator.
The main goal of activities (1) and (2) is to provide both normative conclusions about the application of PA, as well as knowledge and ideas regarding potential methods, guidelines, rules, distinctions and implications (whether general or specific to certain domains), that may be used to increase the quality and consistency of decisions, based on proportionality analysis in policy processes.
(3)        Conducting a set of experiments in her/his respective country. This involves making the scientific and logistic preparations, preparing and selecting the textual materials (cases), conducting pilots (where necessary), assessing reliability and validity of measurement tools, recruiting participants and expert-panel members; securing the physical location for carrying out the experiments; collaborating with the principal investigator in adapting the experimental materials to the relevant context of the specific country; carrying out the experiments in collaboration with the principal policy researcher; and gathering and securing the raw data (Methodological training in experimental methods will be provided to the group researchers by the project).
(4)        Recruiting relevant PhD students and supervising their research, in coordination with the principal investigator. Integrating the PhD research plans into the project. The PhD projects will be able to also include comparative, theoretical, international, interdisciplinary, etc. – as the relevant students and their supervisors will find fit, in coordination with the PI.
(5)        The country specialist will participate in various activities (e.g. meeting, video conferences, etc.), and will take part in preparing academic publications, as specified in the project work-plan.
(6)        In the final stages of the project each country specialist will be in charge of summarizing the empirical results of the research in their respective country, will participate in the analysis of the comparative results, and the findings in other countries, including assessment of contextual differences that may be found. Finally, the country specialist will take part in formulating policy proposals as part of the concluding discussion of the project.
Please contact Talya Steiner at talyas@idi.org.il in case you are interested. 

Wednesday, February 20, 2013

Being Illegal is Bad for Your Health

This paper, Off the map: the health and social implications of being a non-notified slum in India
- the result of a collaboration between the Mumbai NGO PUKAR, the Harvard School of Public Health, and NYU (the lead author is Ramnath Subbaraman) - graphically illustrates what has been obvious for a long time: living in a non-notified slum is bad for your health. The article focuses on the health indicators of one non-notified slum in Mumbai, Kaula Bandar, to argue that its poor health performance compared to notified slums can be directly linked to how these residents are deprived of city resources because of their legal status. Borrowing Arjun Appadurai's phrase the residents of Kaula Bandar are essentially "citizens without a city". Specifically, the article looks at how their legal status affects these residents access to water, sanitation and solid waste removal, electricity, municipal schools, official documents (like ration cards), and compensation after disasters, as well as challenges created by forced eviction.

The article argues these residents non-notified status furthers a form of structural violence by which the Indian state is quite literally sickening and killing residents of these slums. The authors argue that India needs to fulfill at least minimum humanitarian standards (such as those applied to refugee camps) for residents in these slums. Unfortunately, the government is not currently doing even this.

Obviously, the issues involved in how to best deal with illegal slums are complicated. What is clear though is that these slums current status of not being notified is systematically killing and disempowering Indian citizens. I do think studies like this one will be important in challenging and reforming the status quo. More generally, there is a current deficit in Indian legal scholarship on how laws and rules affect those living in slums. I think such a scholarship would have to be inter-disciplinary and draw heavily not only on the public health literature (like this article), but also public policy, economics, and sociology/anthropology. It seems likely that even small rule changes could dramatically improve lives of those living in some of the worst conditions in the country.

Friday, February 15, 2013

The Fourth Estate As the State? -- A Troubling Precedent by the Delhi High Court


Guest Post by Prashant Reddy, whose views are his own.
It is no secret that several of us who watch the nightly tamasha at nine o’ clock on our news channels are itching to have the Indian media, especially the electronic media, thrown under an army of regulators and regulations. Well, the Delhi High Court appears to have answered your dreams, in a judgment which has opened the door for sweeping, almost dangerous, judicial regulation of the media.
In the case of ABC v. Police Commissioner & Ors. (W.P. (C) No. 12730 of 2005) decided on February 5, 2013 the Delhi High Court deemed the media to be a ‘public authority’ for the purposes of the Constitution of India and fined Aaj Tak Rs. 5 lakhs for violating the fundamental right to privacy of a juvenile victim who was allegedly sexually abused by her father. The Court also adds that the “act was a display of a prurient or morbid curiosity as proscribed in the Norms of Journalistic Conductlaid down by the PCI.” The Delhi Police was also fined Rs. 1 lakh for leaking the initial complaint to the media.
The facts of the case are simple. The un-named juvenile in this case had lodged a police complaint against her father for the crimes mentioned above and which complaint was soon leaked to the media. The Hindustan Times and Aaj Tak in particular covered the case in some detail. While the news article in the Hindustan Times was deemed news-worthy by the Delhi High Court, the news coverage by Aaj Tak was found to have violated the juvenile’s right to privacy since the report by Aaj Tak gave enough details to identify the victim, even without revealing her name. As a result of the coverage, the victim and her mother had to relocate and go into hiding.
Normally, a victim of such intrusion, or in this case her mother, could have sued for damages in a civil law suit before a civil court. Instead the victim’s mother filed a writ petition before the Delhi High Court alleging a violation of her daughter’s fundamental right to privacy guaranteed under Article 21 of the Constitution. The issue with alleging a violation of a fundamental right is that it can be asserted only against the ‘State’ and not against a private person or in this case a private media company.
The events following the filing of the writ petition do not inspire faith in the Indian judiciary. A writ petition, which does not require any recording of evidence, as is the case in a civil suit, should not take eight years to dispose, as happened in this case. As per the electronic record of the Delhi High Court available on its website, after being registered, the petition was adjourned numerous times over the next eight years. The final arguments were heard and the case was reserved for judgment only on April 19, 2012 by Justice Vipin Sanghi.
Then amazingly, on January 8, 2013, in the immediate aftermath of the now infamous Delhi ‘bus-rape’ case, Justice Vipin Sanghi asked both the parties to reargue the case. In pertinent part, his order states “In this case, the judgment had been reserved quite sometime back on 19.04.2012. Unfortunately, it has not been possible to pronounce the
judgment on account of the heavy load of work. I, therefore, propose to
list the case, for hearing submissions of the parties, so as to refresh
myself before I proceed to deliver the judgment.” The judgment was finally delivered on February 5, 2013 i.e. eight years after the victim moved the court.
  
The final judgment itself is surprising because contrary to established jurisprudence in the field of constitutional law, the Court has held that private media outlets can be sued under Article 226 because they allegedly perform a public function. In pertinent part Justice Sanghi states “In the light of the aforesaid discussion, I am of the view, that the press and the media perform a public function and discharge a public duty of: disseminating news, views & information; initiating and responding to debates; dealing with matters of current interest in the society in all fields such as politics, morality, law, crime, arts, sports, entertainment, science, philosophy, religion, etc.” He then goes on to state “Any function/activity, alleged to be in violation of such duty, would fall within the ambit of scrutiny of this court exercising jurisdiction under Article 226, especially when the same is alleged to have infringed the fundamental rights of the victim”. In doing so the High Court has virtually equated the fourth estate to the ‘State’.   
This is a surprising finding because the ‘State’ as understood in Article 12 of the Constitution, usually means either the State or Central Governments or any other public institution owned, operated or funded by a government. All of these institutions are bound by the Constitution of India and the fundamental rights contained therein. If a public institution violates a fundamental right of a person, they can be sued before a High Court under Article 226. For example if a public official passes an order against a citizen without first hearing the citizen, the citizen can sue for violation of his fundamental right to be heard. Extend this logic to the media and you open the door to a very slippery slope. Can a media outlet now be dragged to court for reporting on a person without first asking him for his side of the story? What about media outlets indulging in ‘paid news’? Can they now be dragged to the High Court and subject to fines for violating some creative interpretation of a fundamental right contained in the Constitution?
The second more interesting limb of the judgment pertains to the enforceability of the journalistic norms of conduct laid down by the PCI. The judgment is not crystal clear on whether a media outlet can now be sued for the violation of these PCI norms. The High Court, making reference to Aak Tak states “by its conduct, has acted in utter disregard and disrespect of the right of the victim of sexual abuse to privacy, recognised not only as inherent to the fundamental right to life under Article 21 of the Constitution, but also enumerated in the norms of journalistic conduct”. So, are the norms of journalistic conduct now enforceable in a court of law?
The third interesting limb of the judgment pertains to the fine and the manner in which it was calculated. The Court admits that it involved a bit of ‘guesswork’ and more importantly that it hoped that the fine would act as a deterrent against such future misconduct by the media. Mixing ‘guesswork’ with the idea of deterrence can lead to dangerous results like the Rs. 100 crore fine against Times Now for defaming a retired Supreme Court judge.  
Is this really the most efficient way to regulate the media? Can we really wait eight years for a High Court to pass judgment on a complaint against the media? Is the framework of ‘fundamental rights’ the most efficient framework to resolve complaints against the media? But then again what choice do we as a people have, when a self-obsessed media insists on the most flimsy version of self-regulation? 
The writer is at Stanford Law School and can be contacted at tpreddy@stanford.edu (All views are personal.)

Wednesday, February 13, 2013

The Real Price of Legislative Obstruction

In this paper published in the February 2013 issue of the Seminar magazine, I argue that legislative obstruction in India is rule-violating, costless and insurmountable, resulting in a situation akin to the 'legislative state of nature'. In this state, the normal constitutionally-mandated legislative decision rule of majority support is substituted by one requiring near-unanimity. This unanimity-based decision rule grants an effective veto to every political group with critical mass, and creates a strong inertia in favour of the status quo — a particularly distasteful political position in the deeply unequal Indian context. 

Frequent parliamentary obstruction has, unsurprisingly, led to legislative paralysis, and the concomitant muscularisation of the executive and the judiciary. Separation of powers is in tatters and parliamentary democracy seriously threatened. The article ends by suggesting that the practice of obstruction of legislative bodies can be checked only be increasing the political and financial costs of obstruction. These costs must be collective (i.e. not targeted at the obstructing members alone) and automatic (i.e. not dependent on their accrual on the politically weak office of the Speaker) in order to be effective.

Tuesday, February 12, 2013

The Placebo of Compensation

India Together has published a small piece by me titled, Law Justice and the Placebo of Compensation. I argue that the practice of announcing compensation following tragedies is counterproductive and needs to stop.

Wednesday, February 06, 2013

6th Nani Palkhivala Foundation Taxation Law Essay Competition


[The following is an announcement from the National Law School of India Review]

National Law School of India Review in association with the Nani Palkhivala Memorial Trust is pleased to announce the release of topics for the 6th Nani Palkhivala Foundation Taxation Law Essay Competition. The competition is open to current students of law in any college or university in India.

Topics:

1. GAAR: Is it necessary to check tax evasion?
2. Nature and taxability of software payments under the I.T. Act.
3. The constitutional validity of repeated retrospective
amendments.
4. The limits of the "territorial nexus" requirement in light of Vodafone and the Finance Act, 2012.

Word limit: 3000 (inclusive of footnotes)

Deadline: 14th February, 2013.

Prize Money: First Prize - Rs 6,000
                      Second Prize - Rs 4,000
                     Third Prize - Rs 2,000

Joint authorship is not allowed. Please send the essay and author information in separate files. The essay must not contain any identification of the author. Plagiarism will result in disqualification. For any further details or queries, please contact National Law School of India Review (NLSIR) at: mail.nlsir@gmail.com.

Monday, February 04, 2013

The ‘Viswaroopam’ Affair


Guest Post by Suchindran B.N., who is an Advocate practicing in the Madras High Court.

The true test of liberty is the right to test it, the right to question it, the right to speak to my neighbors, to grab them by the shoulders and look into their eyes and ask, “Are we free?” I have thought that if we are free, the answer cannot hurt us. And if we are not free, must we not hear the answer?

The manner in which the freedom of speech and expression has been effectively suppressed by a seemingly malicious government; and the disturbing refusal of the Madras High Court to thwart their attempts are, unfortunately, the reality of the moment. The film ‘Viswaroopam’, irrespective of its cinematic merits, is the exercise of one of the most valuable fundamental rights of a citizen. And it will be my attempt to highlight that, for all effective purposes, Mr. Kamal Hassan’s rights as producer and director of the film has been infringed - whatever be the final outcome of the writ petition in the Madras High Court and the Supreme Court. It is, however, still hoped that the Supreme Court may remedy this, as, when and if the matter is taken up there.

The sequence of events is this: The film ‘Viswaroopam’ is slated for release on Friday, the 25th of January, 2013. Some concerns had been raised by some ‘muslim’ groups that the film may hurt their religious sentiments. A special screening of the film was arranged for them by the director and producer on the 21st of January. After the screening, the 6 persons who viewed the film said they will get back to the directors about any objections, if they had any. The film was cleared by the Censor Board on the 22nd of January 2013. On their subsequent representation and certain intelligence reports, the executive magistrates across Tamil Nadu issue orders under Section 144 of the Criminal Procedure Code to theatre owners preventing the screening of the film on the 25th of January 2013. The producer rushed to Court on the next morning to move a lunch motion challenging the order and the matter was posted at 1.15 pm.

The hearing on the 24th of January went on for quite a while and much was made of the fact that the Judge missed his lunch and sat in Court to hear the matter and couldn’t attend function in the districts. When the matter was taken up in the afternoon, the Court was informed that in all 31 districts in Tamil Nadu, the executive magistrates were constrained to pass orders preventing the screening of the film under Section 144. Before the petitioner counsel could open his arguments, there were interruptions by counsel purportedly representing DTH operators, various minority groups, a ticket purchaser, and one advocate representing ‘the fans of Ulayanagan Kamal Hassan’. The Advocate General of Tamil Nadu told the Court that ‘bloodshed’ would be the result if the film was released. He later withdrew this remark on the urging of the judge. The court was informed by petitioner counsel that the law was settled on this point and that once the Censor Board has granted a certificate, it is not open to the State Government to ban the film. However, the Court refused the injunction on the grounds that the government had certain complaints and intelligence reports that were shown to the judge but not to the petitioners.

A special viewing of the film on 26th January 2013 was ordered and the matter was posted to the 28th of January 2013. On that day, Counsel for the petitioner asked for permission to move a lunch motion to challenge the various individual orders passed under Section 144 of the Criminal Procedure Code. The judge asked them to bring the matter up on the next day i.e. 29.1.2013 while making remarks in court that the petitioner should explore the amicable settlement of the issue. The matter was heard at length, including the interveners who were made parties on application. The order was finally passed after 10 PM effectively staying the orders passed under Section 144 and allowing release of the film.

The Advocate General and his deputy rushed to the residence of the Chief Justice and got his permission to move the appeal the next morning before the first bench. The appeal was listed and brought up at 2.15 PM. The Advocate General made his submissions after which the Acting Chief Justice raised a query of why the petitioners had not challenged the orders of the 31 executive magistrates under Section 144(5). The bench then proceeded to set aside the interim order of the single judge allowing the appeal of the State and effectively allowing the ‘banning orders’ to continue.

On a point of order, it must be respectfully said that, when the matter first came up before the single judge of the Madras High Court, neither the fringe groups, the DTH operators, or the counsel purportedly representing a ticket purchaser or the fans of ‘Ulayanagan Kamal Hassan’ should have been given a hearing. This also gave an opportunity to the fringe groups to bring in various extraneous considerations to weigh upon the issue!

Further, the observations made by the judge in open court the 28th of January 2013, regarding exploration of an ‘amicable settlement’, and that the ‘unity of the nation’ was more important than the rights of individuals were not appropriate. Firstly, in a writ petition filed for enforcement of the fundamental rights, who should the petitioner explore options of amicable settlement with - The government or the ‘fringe’ groups? Secondly, were there any signs on the ground to show that the ‘unity of the nation’ was at any risk? Either ways such comments in the courtroom of a constitutional court only diminish the fundamental nature of the rights, as it indeed did on that day!

In light of the judgements of the Supreme Court in S. Rangarajan, Shankarappa, and Prakash Jha, and the decision of the Madras High Court in Sony Pictures, the following propositions emerge that, firstly, the right of censorship is not not given to State governments; and secondly, that the State government cannot plead an inability to maintain law and order as a reason to prevent screening of a film. Indeed, it has been held exactly to the contrary, that it is the duty of the State government to maintain law and order and ensure the safe screening of a film that has been cleared by the expert body i.e. CBFC. In Prakash Jha’s case, the U.P. government had sought to prohibit screening of the film ‘Aarakshan’ under the U.P. Cinemas (Regulation) Act, 1955, the Supreme Court had, after considering the previous precedent on the issue expressly held that they cannot prohibit the screening of the film in the manner as sought to be done adding that:
“Therefore, since the expert body has already found that the aforesaid film could be screened all over the country, we find the opinion of the High Level committee for deletion of some of the scenes/words from the film amounted to exercising power of pre- censorship, which power is not available either to any high-level expert committee of the State or to the State Government. It appears that the State Government through the High Level Committee sought to sit over and override the decision of the Board by proposing deletion of some portion of the film, which power is not vested at all with the State.”
The passage of Section 144 orders in all 31 districts was clearly an attempt to hoodwink the settled law by doing indirectly what the State government could not do directly.

Furthermore, the arrangement of screening of the film with representatives from all sides itself, in my opinion, was improper at the interlocutory stage. All the learned single judge was bound to decide on that day was whether the petitioners had proved a prima facie case, a balance of convenience in their favour, and the irreparable injury that would be caused to them if the injunction was not granted. These factors could not have depended on the merits or demerits contained in any of the visuals in the film. Especially, when the statutory body empowered to decide such issues has already seen and cleared the film. Indeed, it has been noted that the Section 5B of the Cinematograph Act, 1955 only reproduces the permissible restrictions on the freedom of speech as it existed prior to the first constitutional amendment. Once a statutory, and admittedly, an expert body, has gone into those very grounds can the State government take a contrary view? This is especially remarkable since the sanctioning of cinematographic films for exhibition comes under Entry 60 of the Union list.

The single judge made two strange observations in his first order. First, the judge held that whether the sentiments of the people are affected or not could only be decided only after viewing the film. Second, he took the view “the interest of the public at large that during republic day has to be viewed more than” any possible monetary loss to the petitioners.

These comments deserve an unequivocal rebuttal. Firstly, the High Court seems to have been conscious of the grave monetary loss that would be caused to the petitioners as can be evidenced from his direction to the first two respondents to ensure that no piracy should be allowed. Secondly, I do strongly suggest that the freedom to suspend Article 19(1)(a) on the anniversary of our republic is not given to the State government, and it does not behoove a constitutional court to accept such a reason and record it in its order. If the Court was concerned with upholding the fundamental rights of the petitioner, in my opinion the final interlocutory order passed on 29th of January, 2013 should have been passed on the 24th of January itself since there was no material change in either the arguments or circumstances of the case except that Republic Day celebrations had been concluded.

Moreover, it is also pertinent to note that, the same learned single judge, while heading a division bench, was called upon to adjudicate on a Public Interest Litigation filed by the International Sri Vaishnava Dharma Samrakshanaa Society objecting to the Censor’s Board’s clearance to Kamal Hasan’s earlier film ‘Dasavataram.’ In that case, the bench had dismissed the petition after citing the cases of the Supreme Court mentioned above.

All the cases cited above (except the judgement of the division bench of the Madras High Court) were painstakingly cited by the counsel for the petitioner at all 3 hearing i.e. before the single judge on 24th and 29th of January and before the first bench on 30th January and still both benches disregarded the submissions. (Nic Robinson has tried to highlight this in a recent article in his article “Top Heavy Justice” published in the Indian Express) The actions of the State Government flew directly in the face of the following observations of the Supreme Court:
“We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.”
In the face of this pronouncement, the fact that the single judge proceeded to pass an order citing law and order problems is highly regretable.

The refusal of the High Court to uphold the freedom of speech and expression is going to have a ‘chilling’ effect on the fundamental freedoms. Other film-makers and artistes will think twice before freely exercising their freedom of speech and expression, especially considering the considerable planning and financial interests involved in such ventures nowadays. If the State Government had considerable evidence of a genuine and grave threat to ‘law and order’, and had disclosed this to the Court, then a possible solution would have been not to issue any stay orders but to ask the State to deposit at least the costs of making the film into Court with liberty for the successful party in the writ petition to withdraw the same!


This post has greatly benefited from discussions on the issue with Shivprasad Swaminathan (Assistant Professor, Jindal Global University) and Ananth Padmanabhan (Advocate, Madras High Court). The article has also benefited from suggestions for Arun K. Thiruvengadam (Assistant Professor, National University of Singapore)

New Scholarship

Oxford University Press has just published a new book on Comparative Constitutionalism in South Asia edited by Sunil Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam. The book has essays covering a diverse set of constitutional themes across the region, and looks very exciting. Topics include constitutional borrowings, law and religious freedom and religious pluralism, judicial power, and so on.

The new issue of the journal Seminar is a symposium on some of the current constitutional controversies and debates in India. Topics include our obsession with Tribunals, the SC's judgment in the Right to Education Act, the SC's judgment in the 2-G case, and so forth.

Sunday, February 03, 2013

Guest Post: Anticipatory Bail under the SC/ST (PoA) Act

Shivendra Singh graduated from the NALSAR University of Law, Hyderabad, in 2010 and is currently an Associate with Legal Options, New Delhi. The views are personal.


Just like Mr. Ashis Nandy, I recently came to know that anticipatory bail is ruled out for the offences under the SC/ST (Prevention of Atrocities) Act, 1989. Is this blanket exclusion of anticipatory bail by Section 18 of the SC/ST (Prevention of Atrocities) Act constitutional?
     Section 18 of the SC/ST (Prevention of Atrocities) Act states,
Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
The Law Commission of India in its 41st Report recommended the introduction of a provision for grant of anticipatory bail, and it was incorporated as Section 438 in the Code of Criminal Procedure, 1973.  The power to grant anticipatory bail is only conferred on a Court of Session or the High Court in favour of people apprehending arrest in any non-bailable offence. A unanimous five-judge Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 linked Section 438 of CrPC with personal liberty of an individual, as is evident from this extract of the judgment:
We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty , the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.
A Bench of two judges of the Supreme Court has enriched this confluence of Section 438 of CrPC and personal liberty in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 to state that the restriction on the provision of anticipatory bail under Section 438 limits the personal liberty of the accused granted under Article 21 of the Constitution of India.
I believe that a blanket exclusion of anticipatory bail under the SC/ST (Prevention of Atrocities) Act is in violation of Article 21 of the Constitution. The issue has been agitated before the Supreme Court on two separate occasions without any success due to a myopic and incorrect understanding of the decision in Gurbaksh Singh Sibbia (supra). In State of MP v. Ram Kishan Balothia, (1995) 3 SCC 221, a two-judge Bench of the Court had to consider whether the denial of the right to apply for anticipatory bail in respect of offences committed under the SC/ST (Prevention of Atrocities) Act was violative of Articles 14 and 21 of the Constitution. The Court rejected the challenge based on Article 14 stating that anticipatory bail is not made available to persons who commit the offences under the SC/ST (Prevention of Atrocities) Act because when members of the Schedules Castes and Schedules Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. It is submitted that such a fear is irrational as Section 438 (2) of CrPC confers the power on the High Court or Court of Session to impose appropriate restraints and conditions in the order of anticipatory bail to allay such concerns. The Court held that anticipatory bail was a statutory right conferred long after the coming into force of the Constitution and cannot be considered as an essential ingredient of Article 21. Thus, according to the Court, the non-application of Section 438 of CrPC to a certain special category of offences was not violative of Article 21. It is submitted that this reasoning is clearly at variance with the decision in Gurbaksh Singh Sibbia (supra). The second limb of the Court’s reasoning in Ram Kishan Balothia (supra) was that in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 a similar provision in Terrorist and Disruptive Activities (Prevention) Act, 1987 was upheld. Without going into the vexed question of the constitutionality of draconian anti-terror laws, it is submitted that it is a wrong analogy to compare SC/ST (Prevention of Atrocities) Act with TADA as the offences enumerated in the two legislations are different in character. Furthermore, the coercive machinery of criminal law is set in motion in the former by private complainants and in the latter by the State. It is unfortunate that the exclusion of anticipatory bail in the State of Uttar Pradesh was inter alia used in Kartar Singh (supra) to belittle the high principle that every person is entitled to benefit from the presumption of innocence in criminal law. It is even more unfortunate that even if Mr. Ashis Nandy had obtained anticipatory bail in all the States where FIRs were lodged against him, the Uttar Pradesh Police could have nabbed him at any point of time!
A Bench of two judges of the Supreme Court in Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 has held that if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail as per Section 18 of the SC/ST (Prevention of Atrocities) Act. Should the law be so unfair? gloriosum est iniurias oblivisci.

Friday, February 01, 2013

Verma Committee Report: A Two-Part Note


The Criminal Law Amendments suggested by the Justice Verma Committee are synopsised in a two-part guest post by Mrinal Satish and Shwetasree Majumder, who worked with the Committee. Mrinal is Associate Professor at National Law University, Delhi and Shwetasree is an IP attorney and founder of the law firm, Fidus Law Chambers.
Introduction
The Justice Verma Committee was set up by the Government of India after the gruesome gang rape incident that occurred in Delhi on December 16, 2012. The Committee was asked to review existing laws and suggest amendments to criminal law to effectively deal with instances of sexual violence. The Committee, however, did not view its mandate as only drafting new laws. It placed its mandate within the framework of the Constitution. The Committee grounded its report in the State’s obligation to secure the fundamental rights of its citizens, which includes the right of every person to assert one’s individual autonomy. In the context of women, if they are denied autonomy, even by actors other than State, the duty of the State does not diminish only on that ground. The failure to secure rights of women results in the State denying the right to equality and dignity that women are guaranteed under the Constitution. [See pages 65-67 of the Report]. The Committee’s report, including the new offences that have been created, and modifications suggested of the existing ones need to be viewed within this Constitutional framework.
The Justice Verma committee has made wide ranging recommendations for changes to various laws that impact upon women’s right to equality and right to dignity. In this two-part synopsis, we focus on amendments made to the criminal law framework relating to sexual violence. In Part I of the synopsis, we discuss the set of new offences recommended by the Committee, including stalking and voyeurism. We also discuss the modifications suggested to Section 354 of the Indian Penal Code, which defines the offence of “outraging the modesty of a woman.” The offence has been re-christened as “sexual assault” and the terminology has been changed from archaic concepts of “modesty” to recognition of sexual autonomy, dignity and freedom. We also discuss amendments suggested to the Code of Criminal Procedure, 1973 (Cr.P.C.) and the Indian Evidence Act, 1872 (IEA). In Part II of the synopsis, we discuss amendments suggested to rape laws, the recommendation to introduce a new offence of trafficking, as also issues relating to medical examination of rape survivors. These synopses provide a summary and brief explanation of the changes recommended, and the reasons for these changes. They do not contain an analysis or a critique of the provisions.
Amendments to the IPC and the introduction of new offences
A.    Acid attacks:

The Committee highlights the heinous and yet commonplace nature of acid attacks in several Asian and African countries including India (page 146). Although the Committee notes that traditionally the offence is dealt with under Section 326 of the IPC, it observes that ”what happens when there is permanent physical and psychological damage to a victim, is a critical question and law makers have to be aware that offences are not simply based on the principle of what might be called offence against the body, i.e., damage of the body, but they must take into account the consequences on the right to live with dignity which survives the crime” (page 147).  

The Committee notes that the Criminal Law (Amendment) Bill, 2012 includes the offence of voluntarily causing grievous hurt, through use of acid. Under the proposed Section 326A of the Amendment Bill, if a person causes permanent or partial damage to the body of another person by throwing acid on, or administering acid to that person, with the intention of causing injury, or with the knowledge that injury shall be caused, that person shall be guilt of the offence defined in Section 326A. The Amendment Bill has proposed a minimum punishment of ten years, and a maximum of life. It has also proposed that a fine of a maximum of rupees ten lakhs may be imposed, which shall be given to the victim.

The Committee makes some key modification to this provision. It recommends that the offence not be confined to only throwing acid on a person. It suggests that if a person causes permanent or partial damage to the body of another person, by using means other than throwing acid, such person and acts, should also be brought within the purview of the section. The Committee also recommends that the victim should receive Central and State government assistance through a compensation fund (See Para 8 page 148). It further recommends that instead of a fine, the convicted person be liable to pay compensation to the victim, which should be sufficient to at least cover the medical expenses of the victim.

The first explanation to the section takes the offence beyond the specific sphere of acid attacks to other violent hate crimes against the body of a woman, which maim or permanently damage or disfigure her, such as forced circumcision of a woman or female genital mutilation. The second explanation pre-empts an argument against liability if the victim ‘reverses’ the visible effects of the attack, through medical treatment. This formulation captures the Committee’s recognition that the offence is not only about physical damage, but also about right of a person to live with dignity.

The Criminal Law (Amendment) Bill, 2012 proposes the addition of Section 326B which punishes the voluntary throwing or attempt to throw acid on a person. The offence is punishable with imprisonment for a minimum period of five years, which may extend to seven. Along the lines of its recommendations for modifying Section 326A, the Committee recommends the broadening of Section 326B to include any other means to achieve the purpose of permanently or partially damaging a person’s body.

B.     Sexual Assault

Under the current Section 354 of the Indian Penal Code, a person who “assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty” is punished with imprisonment of upto two years, or fine, or both. The focus of the provision, rather unfortunately is on “outraging of the modesty” of a woman and invariably the defence against the application of such a provision has centred around what constitutes a woman’s modesty, whether the woman in question was of such a character to claim that her modesty was outraged, whether young girls below the age of puberty have ‘modesty’ etc.  Further, under the current formulation the offender can argue that he did intention to “outrage the modesty” of the woman, or that he did not know that his actions would result in the “modesty of the woman” being outraged. Hence, the need for change was palpable, so as to change the focus of the crime from notions of “modesty” to violation of sexual autonomy. The recasting of the provision therefore needed to be wider in scope, cover a range of offences (and consequently provide higher degrees of punishment) and be a gender neutral provision that criminalised unwelcome sexual acts of varying degrees of severity. 

The Committee has recast the provision in its entirety to criminalise all acts of non-penetrative sexual violence under the umbrella term of ‘sexual assault.’ This ranges from the intentional contact of a sexual nature with another person without their consent, to using words, acts or gestures towards or in the presence of another person to create an unwelcome threat of a sexual nature or which result in an unwelcome advance. In its recommended avatar the provision shifts focus from the “modesty” of the woman being the lens to view the offence to an assessment of when sexual assault can be said to have occurred. The Committee also recommends the repeal of Section 509 of the IPC, since the acts criminalized under that section are covered in the recast Section 354.
Drawing from the Canadian approach, the Committee explains in the context of the recast Section 354 that while the offence of sexual assault should include all forms of non-consensual non-penetrative touching of a sexual nature, the ‘sexual nature’ of an act would be established if: “viewed in the light of all the circumstances…the sexual or carnal context of the assault [is] visible to a reasonable observer.” The Committee observes that the courts will examine factors such as the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, threats, intent of the accused and any other relevant circumstances but warns that it should not be a prerequisite that the assault be for sexual gratification. The motive of the accused is ‘simply one of many factors to be considered.”(page 112).

The Committee also recommends change in the sentencing framework. For an act that involves physical contact, a maximum penalty of imprisonment for five years has been recommended. For acts that do not involve physical contact, a maximum sentence of one year has been suggested.

C.     Public Disrobing of a woman:

The Committee takes note of various instances across the country of humiliating a woman by publicly disrobing her. Recognizing this as a crime usually done with the intention of publicly humiliating a woman, the Committee proposes a separate provision to deal with this act. It recommends enactment of Section 354A to deal with this offence. A minimum sentence of three years, and a maximum sentence of seven years is recommended for this new offence.

D.    Voyeurism

The Committee recommends the introduction of a new offence of voyeurism. Although the Information Technology Act covers invasion of privacy using electronic devices, the IPC does not contain a provision that defines and punishes voyeuristic acts. This new section achieves that purpose. The provision covers two types of instances (1) where the perpetrator  watches the woman secretly, and (2) where the woman  might have consented to the perpetrator watching her (for instance, when the woman might be in a relationship with the  perpetrator) but not of any third party watching her at the perpetrator’s behest. Watching a woman in these circumstances amounts to voyeurism if she was engaged in a 'private act', which, in the first explanation to the provision is defined as “an act carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim's genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.” The second explanation covers instances where a woman may have consented to her private images being captured by the perpetrator (such as, once again in instances of a relationship between them) but not to such pictures being disseminated by him to third parties. The recommended punishment for the offence of voyeurism is of imprisonment of one to three years and with fine, and in the event of a second or subsequent conviction with imprisonment for a minimum of three years which may extend to seven years and also with fine.

E.     Stalking

The Committee recommends the introduction of a new offence of stalking. “[T]he Committee was surprised to find out that offences such as stalking, voyeurism, ‘eve-teasing’etc. are perceived as ‘minor’ offences, even though they are capable of depriving not only a girl child but frail children of their right to education and their freedom of expression and movement.” Therefore, the Committee takes the view that “it is not sufficient for the State to legislate and establish machinery of prosecution, but conscious and well thought out attempts will have to be made to ensure the culture of mutual respect is fostered in India’s children. Preventive measures for the initial minor aberrations are necessary to check their escalation into major sexual aberrations.” (Page 215)

The offence of stalking (which is gender neutral) is committed in any one of three situations listed below:

Situation 1: Where a person
(i)             follows another and
(ii)           contacts, or attempts to contact them
(iii)          in order to foster personal interaction
(iv)          repeatedly
(v)           despite a clear indication of disinterest, or

Situation 2: Where a person
(i)              monitors the use by another person of the internet, email or any other form of electronic communication, or
Situation 3: Where a person
(i)             watches or spies on another person,
(ii)           in a manner that results in a fear of violence or serious alarm or distress in the mind of the other person, or
(iii)          in a manner that interferes with the mental peace of the other person

The provision includes three exceptions, where the action will not amount to stalking:

(a) where the course of conduct is pursued for the purpose of preventing or detecting crime and the person accused of stalking has been entrusted with the responsibility of prevention and detection of crime by the state; or,
(b) where the course of conduct  is pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment; or,
(c) where, in the particular circumstances the pursuit of the course of conduct was reasonable.

The punishment recommended for the offence of stalking is imprisonment of either description for a term which shall not be less than one year but which may extend to three years along with a fine.

Amendments to the Code of Criminal Procedure
The Criminal Law (Amendment) Bill, 2012 suggests amendments to five sections of the Criminal Procedure Code, 1973 (Cr.P.C). In light of its mandate and the changes suggested to the I.P.C. and other substantive laws, the Committee has suggested changes to various other sections of the Cr.P.C. We have summarized these changes and provided a brief commentary on the impact they will have, if enacted.

A.    Section 39, Cr.P.C.
Section 39 imposes a duty on the public to report offences if they become aware of commission or the intention of a person/s to commit the offences listed in sub-section (1) of that section. If a person intentionally omits to inform the police or the nearest magistrate, such omission is punishable under Sections 176 and 202 of the Indian Penal Code, 1860 (I.P.C.), both of which provide a term of imprisonment which may extend to six months. Currently, Section 39(1) of the Cr.P.C. does not include sexual offences. The Committee recommends that Sections 326A, 354, 354A, 354B, 354C, 376(1), 376(2), 376A, 376B(2), 376C, 376D and 376F be added to the list of offences in Section 39(1), Cr.P.C.
This proposed change in the law recognizes the under-reporting of rape cases, because of survivors being discouraged by individuals who become aware of the incident. If the law is amended as suggested, a person who becomes aware of an incident of sexual abuse will be legally bound to report the crime.

B.     Section 40A, Cr.P.C.
Section 40 of the Cr.P.C. is along the lines of Section 39. It casts a duty on officer employed in connection to the affairs of a village and residents of a village to report the commission of offences listed in Section 40(1). An officer employed in connection to the affairs of the village includes the members of the village panchayat, and others in similar leadership roles. The Committee recommends that a new section, Section 40A be added to the Cr.P.C. This section would obligate “every officer employed in connection with the affairs of a village, and every person who is part of a village panchayat” to report without delay, the commission (or the intention to commit) offences listed in that section. The offences listed are Sections 326A, 326B, 354, 354B, 354C, 376(1), 376(2), 376(3), 376A, 376B(1), 376B(2), 376C and 376D of the IPC.
This suggested amendment recognizes the fact that in rural areas, the sarpanch or a member of the village panchayat is often informed about the commission of a sexual offence. Panchayats often engage in getting the parties to compromise, and discourage the survivor and her family from reporting the incident to the police. If this suggestion of the Committee is accepted, the members of the panchayat and any other person in a leadership role in a village will be legally bound to report the offence to the police. 

C.     Section 54A, Cr.P.C.
The Committee recommends amending Section 54A of the Cr.P.C., which deals with “identification parades.” The purpose of an identification parade is for a person who has information about the crime and/or the offender to identify a person who is suspected of having committed the crime. In an identification parade the person identifying generally points out the person to the police officer conducting the parade. Recognizing that the current process might not be disabled-friendly, the Committee has proposed that in cases where the person identifying is physically or mentally challenged, a different procedure be used. Instead of a police officer, such parade shall be conducted by a judicial magistrate, who shall devise a method of identification, which the physically or mentally challenged person is comfortable with. The Committee has also suggested that the entire process be videographed.

D.    Section 154, Cr.P.C.
The Criminal Law (Amendment) Bill, 2012 proposes amendments to Section 154(1), Cr.P.C. which deals with filing of First Information Reports. The amendment proposed by the Bill is that in cases involving Sections 354, 375, 376, 376A, 376B and 509 of the IPC, FIRs should be recorded, as far as possible, by a woman police officer.
The Committee makes four additional suggestions. First, it adds all sections in the IPC dealing with sexual offences against women (including those proposed by the Committee) to the list of offences already suggested by the Amendment Bill. Second, it suggests that if the rape survivor is a woman, then she should be provided legal assistance, as well the assistance of a healthcare worked and/or a women’s organization. Third, in the event that the survivor (male or female) is temporarily or permanently physically challenged, the police officer is required to record the FIR at a place convenient to the survivor, in the presence of a special educator or an interpreter. The Committee also recommends that the process be videographed. The final recommendation is that after recording the survivor’s statement, the police should get the survivor’s statement recorded by a judicial magistrate.
Filing of the FIR is a major hurdle that a rape survivor faces. The atmosphere of a police station is not friendly to reporting a sexual crime. It has been alleged that police officers are not sensitive while recording FIRs for rape. Recognizing that women might be more comfortable in reporting the offence to a female police officers, previous law reform initiatives, including the Criminal Law (Amendment) Bill, 2012, have suggested that FIRs in sexual offences be recorded by women police officers. If the Committee’s recommendations of providing legal assistance to a rape survivor, as well as the assistance of a healthcare worker and/or a women’s organization is accepted, the process will be less intimidating than it currently is. This would result in rape survivors being provided better access to the legal system.

E.     Section 160, Cr.P.C.
Section 160 of the Cr.P.C. deals with the power of the police officer to summon a person acquainted with the facts of the case. This is generally done for recording of the statement of the witness, and the person may be called to a police station. The existing provision, however, provides that no woman or a male under the age of fifteen shall be questioned, except at their residence. The Criminal Law Amendment Bill proposes to extend the age for men, providing that a man under the age of fifteen or over the age of sixty five shall be questioned at his residence. The Committee recommends that a physically or mentally challenged person also be questioned at his/her residence.

F.     Section 164, Cr.P.C.
Section 164 of the Cr.P.C. deals with the recording of confessions and statements by Magistrates. The Committee recommends that as soon as the commission of a sexual offence is brought to the attention of the police, the police shall arrange to have the survivor’s statement recorded by a Magistrate. It further recommends that in the case of a mentally or physically challenged person, such statement, the recording of which shall be videographed, shall be taken with the assistance of an interpreter or a special educator. It also recommends that in the case of mentally or physically challenged persons, this statement before the Magistrate shall be considered as their examination-in-chief. This implies that the person will not have to re-assert the statement at trial, but only be available for cross-examination.
A major reason for acquittals in rape cases is the survivor turning hostile. In a large number of cases, the survivor retracts from her prior statement to the police, due to societal and other pressures. The consequence of getting a statement recorded by a magistrate is that the survivor cannot claim that he/she did not make such statement, or dispute its contents. This would ensure that the person does not retract from his/her statement because of extraneous reasons. On the other hand, if she does retract, he/she will be liable to prosecution for making false statement under oath.

G.    Section 197, Cr.P.C.
Section 197(1) of the Cr.P.C bars a court from taking cognizance of an offence, if it is committed by a judge, magistrate or a public servant, while acting or purporting to act in the discharge of his official duties, unless sanction is granted by the appropriate government. The Committee recommends that the section be amended to lift the bar on taking cognizance in sexual offences, as well as the offence of trafficking. Under the current framework, if a public servant commits an offence, including a sexual offence, the government has to grant sanction for prosecution. Delay in granting sanction, or cases where sanction is not granted leads to impunity in custodial rape cases. The amendment recognizes that committing an act of sexual violence cannot be a part of person’s official duties. Hence, the Committee recommends that sanction be required in sexual offence cases be removed.

H.    Section 198B, Cr.P.C.
The Committee recommends adding Section 198B to the Cr.P.C, by virtue of which a court is barred from taking cognizance of a report of marital rape, unless such report is made by the wife against her husband. This ensures that a third person does not interfere in a marital relationship, by filing a report of marital rape.

I.      Section 327, Cr.P.C.
Section 327(1) of the Cr.P.C. states that all trials shall be open to the public. However, sub-section (2) states that trials of cases under Sections 376, 376A-D shall be conducted in camera. In suggesting modification of the Criminal Law (Amendment) Bill, the Committee proposes that trials for all the new sexual offences that it has suggested also be in camera. The Committee however recommends that unless there are compelling reasons, only the examination in chief and cross-examination be in camera. The rest of the proceedings should be open to the public in order to ensure that there is a check on misogynistic and prejudicial practices in court proceedings. The Committee further recommends that the survivor be provided with the assistance of a person from a women’s organization through the trial.

J.      Section 357, Cr.P.C.
One of the amendments that the Committee suggests in the IPC is that, if convicted, the offender should be liable to pay monetary compensation to the victim. Consequently, amendments have been suggested to Section 357, Cr.P.C. which empowers courts to award compensation. The proposed amendment operationalizes the amendment to the IPC by suggesting the requisite changes to the Cr.P.C.
K.     Amendments to the First Schedule of the Cr.P.C.
In light of the seriousness of sexual offences, the Committee recommends that all the offences made punishable by the Amendment Bill be cognizable and non-bailable.

Amendments to the Indian Evidence Act (IEA)
The Criminal Law (Amendment) Bill suggests amendments to Sections 53A, 114A and 146 of the Cr.P.C. The Committee suggests further modifications to these proposed amendments, as well as an amendment to Section 119 of the Evidence Act.
A.             Amendments to Sections 53A and 146, IEA
Sections 53A and 146 of the IEA deal with the issue of sexual history of the rape survivor. The Amendment Bill has proposes that in sexual offences, where consent is an issue, the character or past sexual history of the survivor shall not be relevant in deciding on the issue of consent. The Committee recommends that past sexual history should not be relevant in all sexual offences. It further recommends that past sexual history be considered irrelevant not only in determination of the question of consent, but during the determination of any other fact during the trial process.
The proviso to Section 146 bars the rape survivor being asked questions about her sexual history during cross-examination. The Amendment Bill makes the section gender neutral and adds a few more offences to the existing list. The Committee recommends that the bar on asking a rape survivor questions about her sexual history should extend to all sexual offences. In sum, the past sexual history of the survivor will not be a relevant fact in a prosecution for any sexual offence.

B.              Amendment to Section 114A, IEA
Section 114A of the IEA states that in a prosecution for rape under certain clauses of Section 376(2) of the Indian Penal Code, if sexual intercourse is proved by the prosecution, and the issue is one of consent, and the woman testifies that she did not consent, the Court shall presume that the lack of consent. In light of the new offences recommended by the Committee, it suggests that the presumption apply to all the clauses of Section 376(2), as also to the offence of gang rape defined by the newly proposed Section 376C. 

C.              Amendment to Section 119
The final amendment suggested to the IEA is with respect to Section 119. Section 119 referred to people with speech disabilities as “dumb witnesses.” The Committee recommends that an amendment be made to the section and that “dumb” be replaced by “persons who are unable to communicate verbally.” It also recommends that in recording the evidence of such persons, the Court shall take the assistance of a special educator or interpreter, as required, and that the process be videographed.
The authors have prepared this synopsis in their individual capacities. They do not purport to represent the views, or speak for, the Justice Verma Committee. This synopsis has also been published on Bar & Bench.