Archive for January, 2009

Sec 498A of the Indian Penal Code a weapon in the hands of vamps

January 8, 2009

Introduction

 Objective: The Indian Penal Code, 1860 was amended in the year 1983 to include the provisions of Section 498 A which deals with the punishment of the husband and his relatives if a married women is subjected to cruelty which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. The offence is cognizable, non-bailable and non-compoundable. Hence once a complaint is lodged on the above mentioned grounds the accused has a lot to bear before he can be given a clean chit. With the rise in modernisation, education, financial security and the new found independence the radical feminist has made 498A a weapon in her hands. Many a hapless husbands and in laws have become victims of their vengeful daughter-in-laws. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage. In most cases 498a complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. My aim is to study the cause and effect relationship that this section brought about in the matrimonial sphere of the Indian society.

 

 Scope : The scope of my article is to cover Section 498a of the IPC relating to  criminal law in which the wife and her family can charge any or all of the husband’s family of physical or mental cruelty. This law is unique to India as it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband. Typically, the charged family members in these cases include:

 

• Mostly women of all ages (unmarried, married and pregnant sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)

 

• Other maternal and paternal relatives and even young children in the family.

 

The Report will deal with the ingredients of the section and what must be essentially proved to convict an accused under this section. I will also deal with the provisions relating to the cognisable and non-bailable provisions of this section. The non-bailability provision is grossly misused by unscrupulous wives who file false complaints against unsuspecting husbands and her in laws. The police in such cases register and FIR and forward the chargesheet without proper investigation in most of the cases. A lot of men have had their lives ruined because of this drastic section.

 

 Methodology :

 

 I have used the doctrinal method of legal research for this report. Thus it required an extensive study of the provision along with the relevant act of the Evidence Act and the Criminal Procedure Code. Reference to case laws have been made by going through case laws in relation to this provision.

 

The Supreme Court of India says, “But by misuse of the provision (IPC 498a – Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended

 

to be used a shield and not an assassin’s weapon”. Laws originally meant to protect from the dowry menace are being misused by urban ill-intentioned, unscrupulous women and their families as “an assassin’s weapon” . There is a rapidly escalating social evil in Indian families, namely the misuse of the Dowry and Cruelty laws (Criminal Laws), which were originally meant to act “as a shield” for the protection of harassed women. Nowadays, the educated urban Indian women have turned the

 

tables. They have discovered several loopholes in the existing Indian judicial system and are using the dowry laws to harass all or most of the husband’s family that includes mothers, sisters, sisters-in-law, elderly grandparents, disabled individuals and even very young children.

 

We are not talking about the dowry deaths or physical injury cases but about dowry harassment cases that require no evidence and can be filed just based on a single-sentence complaint by the wife. With an approximately 60,000 such accusations per year, about 200,000 people are directly affected by these false accusations. The number of such cases has increased by about 100% in the last 10 years and by more than 15% in just the last two years. This poorly formulated law is inviting unscrupulous people to file false cases, and causing the imprisonment of innocent people without investigation. These innocent people undergo stigmatization and hardship even before a trial in the court of law which leads to immense emotional, physical and financial trauma. Unable to bear the harassment, the loss of reputation and the social consequences of being implicated in a false criminal case, some of these falsely accused husbands and their elderly parents are committing suicide. Despite the recommendations of the Supreme Court of India and Justice Malimath Committee that the legislative arm should modify the laws such that the innocent are protected, the suggested amendments to the law have been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. For every complaint filed by a woman, there are generally twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.

 

Let us look into the general text of the section it reads 498A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

 

 Explanation.-For the purposes of this section, “cruelty” means-

 

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

 

 IPC-498a is:

 

• Cognizable – The accused can be arrested and jailed without warrant or investigation

 

• Non-Compoundable – The complaint cannot be withdrawn by the petitioner

 

• Non-Bailable – The accused must appear in the court to request bail

 

The accused are presumed guilty, and for all practical purposes, the burden is on the accused to prove innocence in the courts. The FIR is typically an imaginary story, running into many pages, with absolutely no supporting evidence. It typically takes about 7 to 8 years for the accused to prove their innocence in the courts. Due to the overwhelmingly large number of false cases, the conviction rate in these cases is close to zero. The delay in the provision of justice amounts to the denial of justice. There is no penalty for the misuse of IPC 498a, and after acquittal of the accused, the courts are reluctant to entertain defamation and perjury cases against the falsely testifying witnesses.

 

We must look into why people misuse the provisions of Sec 498A of the IPC.

 

• Legal Extortion – Get-rich-quick-scheme to extort large amounts of money

 

• Prior Relationship – Wife has a prior relationship, and cannot get out of it. She marries to satisfy her parents, and then misuses the 498a law in order to obtain a divorce.

 

• Adultery – Women who indulge in adultery use 498a as a bargaining tool

 

• Domination – Wife wants the husband to abandon his parents and siblings, and have total control over his finances and social behaviour

 

• Custody – Deny the father and his family access to their child(ren).

 

• Fraudulent Marriages – in which the bride (and her family) hides her education level or mental health; and when is justifiably asked to release the person who has gone into marriage without knowing the full facts; she files a false 498a case.

 

The kind of women who are likely to file false 498A cases have certain typical traits :

 

• Who is suffering from pre-existing mental problems such as Borderline Personality Disorder, Bipolar Disorder, Schizophrenia, etc.,

 

• Whose family is nouveau riche and likes ostentatious display of wealth, possessions as well as social and political connections

 

• Who is used to living beyond her means

 

• Whose father is hen-pecked and whose mother dominates all family situations

 

• Who listens to and acts in accordance with her parents’ wishes at all times, exhibiting a lack of individuality and discretion in dealing with her married life

 

• Who pushes for quick involvement during the establishment of a marriage alliance, pressing the man and his family for an instantaneous commitment

 

• Who is excessively possessive and suspicious

 

• Who is self-centred and feels the need to dominate the relationship and every aspect of decision making

 

• Who tries to alienate her husband from his family and friends

 

• Who is hypersensitive and therefore easily insulted

 

• Who indulges in verbal abuse and constant criticism of her husband and in-laws

 

• Who uses blackmail (emotional or otherwise) and threats to get her unreasonable demands fulfilled by her husband and in-laws

 

• Who walks out on her husband following an argument and stays away from her husband indefinitely without any effort towards reconciliation

 

 Today every husband is labelled a torturer and the mother-in-law a demon. A fair amount of blame for this rests on the media which, with a view to sensationalize the ‘story’ blows the news of ‘harassment’ or ‘torture’ of married women out of proportions, without properly investigating the veracity of the story. The news of alleged ‘torture, harassment, and misappropriation of stridhan’ of wife by ‘A’ was published prominently by a leading city newspaper, accusing several members of his family torturing her. The concerned reporter never bothered to verify the allegations with the husband of ‘A’. As the news carried his full name and those of his relatives, designation and the organization where he was working, it caused irreparable damage to the entire family’s image and hard-earned reputation in almost every circle they moved. Queries started pouring in following this news. Depressed as he was, ‘A’ immediately registered his protest with the editor. The newspaper did publish his rejoinder, but after a long time gap and without any apology for publishing an unverified report. One wonders where this growing tendency of misusing the useful laws by unscrupulous parties is leading the society. Harassing and victimizing women for dowry is condemnable. We all have sisters, and daughters, and undoubtedly they require legal protection from all forms of harassment and cruelty but what if the legal loopholes of this very law are misused by women to harass their husbands and in-laws?

 

The Apex Court has also commented on the possible misuse of this provision in a number of cases. Right to life and liberty of every citizen is guaranteed under Article 21 of the Constitution of India. But this life and liberty can be curtailed if they hinder others’ life and liberty. For that due process of law is necessary. While civil law determines what is right and what is wrong, the criminal law imposes penalty to deter.

 

Section 498A was inserted in the Indian Penal Code in 1984 with a view to protect women against dowry harassment. From the very beginning of this law there has been reaction from the society including legal luminaries that this law could be misused and its effects on the society would be deleterious. In their judicial observations and remarks, the courts have expressed deep anguish over this law. Here are some recent judicial observations.

 

Way back in 1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana, (1990)2 Rec Cri R 243 case as:

 

“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”

 

In Kanaraj vs. State of Punjab, 2000 CriLJ 2993 the apex court observed as:

 

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

 

Karnataka High Court, in the case of State Vs. Srikanth, 2002 CriLJ 3605 observed as:

 

“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

 

Supreme Court, In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case, observed as:

 

“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

 

Delhi high Court, in Savitri Devi vs. Ramesh Chand, 2003 CriLJ 2759 case observed as:

 

“These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”

 

Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others, 2003 CriLJ 3394 case observed as:

 

“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

 

 Jharkhand High Court in Arjun Ram Vs. State of Jharkhand and another, 2004 CriLJ 2989 case observed as:

 

“In the instant case, it appears that that the criminal case has been filed, which is manifestly intended with mala fide and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

 

In this connection reliance may be placed upon AIR 1992 SC 604: (1992CriLJ 527)”

 

Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 266 observed as:

 

“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.  

 

But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”

 

Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:

 

“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.

 

16.4.5 This section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together.

 

(118) The Code may be suitably amended to make the offence under Section 498 A of the I.P.Code, bailable and compoundable.”

 

These are only a few observations of their lordships from scores which conclusively prove that:

 

1. A woman (not necessarily every woman) can be much more cruel than a man (not necessarily every man).

 

2. While intending to protect the life of a person, s.498A of IPC jeopardizes around a dozen innocent persons whether they are children or old. Hence, the provision is discriminatory and in violation to the Article 14 of the Constitution of India.

 

3. Instead of restoring equilibrium, the provision aggravates disequilibria. Hence, it is not only imbalanced but also there is a failure of guarantee of right to life under Article 21 of the Constitution of India.

 

4. For the reasons stated under conclusions 3 and 4 above the provision is not only imbalanced but also ultravires. Because of these maladies the provision needs to be amended at the earliest to protect the life and liberty of millions of innocent people including children and old. Prior to that the learned and honourable courts may consider imposition of heavy penalty as done in case of vexatious PILs. Such PILs are only vexatious but in the matter of the cases may be false, mala fide, malicious and revengeful.

 

 What could be the possible alterations in the present system and the law?

 

 1. Role of Women NGOs: These organizations should investigate complaint properly without any bias towards the woman keeping in mind that the law is being misused largely to harass more women in husband’s family. They should not encourage any woman to file a criminal case against her in-laws for trivial matters. Foreign Women Organizations should also take responsibility of not allowing false complaint to be registered against NRI’s just to harass and extort huge amount of money from them. These organizations should also conduct survey/research on the misuse of the act and should educate people about its consequences. If these organizations are found to be assisting in filing false complaints, then they should be made liable for prosecution in the country where they are functioning.

 

 2. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-laws have come to light from different parts of the country. As of now there is no organization, which can really help these harassed men and his family members, to listen their side of the story and put their point of view in front of the government. Need of the hour is to create family counselling centres across the country to help those aggrieved families.

 

 3. Time bound Investigation and Trial : A speedy trial of 498(a) cases will not only ensure justice for the innocents that have been implicated in false charges, it will also lead to prompt redressal of the grievances of real dowry victims .The reduction in false cases will also reduce the burden on judiciary and expedite the processing of real cases.

 

4. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law. There should be provision for men also to file a case for mental cruelty by his wife.

 

 5. Investigation by Civil authorities: The investigation into these offences be carried out by civil authorities and only after his/her finding as to the commission of the offence, cognizance should be taken. The government should create awareness among officers about its misuse.

 

 6. Bailable: The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them.

 

 7. Compoundable: Once FIR has been registered it becomes impossible to withdraw the case even if wife realizes that she has done a blunder and wants to come back to her matrimonial home. To save institution of marriage this should be made compoundable. Moreover, in the scenario where the couple decides to end the marriage by mutual divorce, continuation of criminal proceedings hamper their life.

 

 8. Arrest Warrants: Arrest warrant should be issued only against the main accused and only after cognizance has been taken. Husband family members should not be arrested.

 

 9. Penalty for making false accusation: Whenever any court comes to the conclusion that the allegations made regarding commission of offence under section 498a IPC are unfound, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families.

 

 10. Court Proceedings: Physical appearance of the accused on hearing should be waved or kept low to avoid hassles in appearing to the court, especially for NRIs. The court should not ask to surrender passport of the husband and his family which could cost job of the husband and his family members.

 

 11. Registration of Marriage and Gifts Exchanged: The registration of marriages should be made compulsory along with the requirement that the couple make a joint declaration regarding the gifts exchanged during marriage.

 

 12. Punish Dowry Givers: If the complainant admits giving dowry in the complaint, the courts should take cognizance of the same and initiate proceedings against them under the relevant sections of the Dowry Prohibition Act

 

 13. Penalize corrupt Investigation Officers: If it is apparent to the court that a fair investigation has not been conducted by the investigation officer, and that the husbandand his family have been charge-sheeted without proper verification of the complaint, the investigation officer should be penalized for gross negligence of duty.

 

 14. NRI Issues : Unless they are proven to be guilty after the due judicial process, NRIs should be a given a fair chance to justice by assuring them of the following -a) Permission to return to country of employment b) No impoundment/revocation of passport and no Interpol Red Corner Notices. c) No unnecessary arrests d) Expeditious investigation and trial

 

15. Gender Neutral: Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife.

 

 CONCLUSION

 

 IPC section 498a was originally designed to protect married women from being harassed or subjected to cruelty by husbands and/or their relatives. This law was mainly aimed at curbing dowry harassment. Unfortunately, this law has been misused to harass men and their families rather than protect genuine female victims of harassment. The Supreme Court of India itself has labelled the misuse of section 498a as “legal terrorism” and stated that “many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive. In such cases, acquittal of the accused does not wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery.“ In agreement with the above statement, the findings of a study conducted by The Centre for Social Research indicated that 98 percent of the cases filed under IPC section 498a are false. Nevertheless, the law has been always justified based on its intention of protecting women. At this point it would be worthwhile to think about how IPC section 498a has really affected women.

 

 It has been argued by Government officials favouring the law that despite the establishment of legal measures to counter harassment of married women, there is an increase in the number of cases of harassment. The first part of the statement suggests that women who are harassed should be utilizing this law as a means of protection. If harassed women indeed used the law then we should see a decrease in the number of cases of harassment over time. Considering the stringent consequences imposed by the law and the inordinate delays inherent in the legal system, no ordinary citizen, male or female, would be impudent enough to risk being implicated under this law for the sake of satisfying their monetary or even sadistic desires for that matter. The fact is that many women who are actually beaten up and harassed by their husbands and in-laws rarely file 498a or resort to other dowry related laws. A lot of them live in rural areas, unaware of the law or lack the necessary economic and moral support from their natal families. Going by the conviction rate the proportion of women who have genuine cases is 2%. Most women who file 498a are from urban backgrounds and are either capable of fending for themselves or have enough family support to fall back on. The proportion of women who belong to this category is 98%. In the 98% of false cases, in every instance that 1 daughter-in-law files a false complaint at least 2 women (an innocent mother-in-law and sister-in-law) are arrested and undergo stress, humiliation and harassment in the hands of the exploitative police, lawyers, staff and officials in Indian courts before being acquitted several years later. So, in every 100 cases 2 women genuinely benefit, 98 women get away with perjury and extortion, and at least 196 women suffer needlessly.

 

The number of cases that are filed in police stations or courts are the basis for the official statistics of dowry harassment. So, given that the law allows women unlimited scope to fabricate lies (with no penalty of perjury) and given that women are encouraged to keep filing false cases the statistics of “dowry harassment” are bound to rise while the problem of genuine harassment is left unchecked. So, the government has, in the name of protection of women, done grave injustice to two groups of women. The first group constitutes the genuine victims of dowry harassment whose misery remains unresolved but is constantly alluded to in order to justify the law. The second group consists of innocent mothers and sisters of husbands who are criminalized and harassed by the police and the legal system without any regard to their age, health or marital status. Pregnant women, unmarried sisters, ailing mothers and even aged grandmothers have been sent behind the bars under false allegations but their pain and suffering has not even been acknowledged leave alone addressed by the Government. Through IPC section 498a, the Government is actually protecting those women that indulge in perjury, blackmail, extortion and harassment of their husbands and inlaws.

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THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) BILL, 2008

January 8, 2009

http://164.100.24.219/BillsTexts/RSBillTexts/PassedRajyaSabha/CrPC%20as%20passed.pdf

Promotion and Support to legal Terrorism From Lawyers: Below news in TOI proves it all.

Lawyers strike to bail themselves out

8 Jan 2009, 0326 hrs IST, Abhinav Garg, TNN

 

http://timesofindia.indiatimes.com/Cities/Delhi/Lawyers_strike_to_bail_themselves_out/articleshow/3949016.cms

NEW DELHI: For all their public posturing and indignation against the CrPC amendment vesting greater discretionary powers with the police in making an arrest, lawyers privately admit their opposition to it because the changed law will reduce bail cases.

Though loathe to come on record, lawyers across various district bar associations in Delhi which struck work on Wednesday predicted a drastic fall in bail cases due to the CrPC amendment. Since it gives greater leeway to an investigating officer (IO) to decide if an arrest is warranted or not in offences which carry a maximum sentence of seven years’ imprisonment, observers say number of arrests for such crimes is likely to come down and so will the corresponding bail matters ending up before courts.

The bar associations, however, have wrapped their grievances in dire warnings of lawlessness and increased crimes against women, since a molester can now walk away secure in the knowledge that he might not be arrested. Still, was going on strike the solution, given that every judicial authority from the Supreme Court to Delhi High Court has repeatedly directed lawyers to refrain from this option?

“It isn’t a strike on principle and policy,” says senior lawyer Kamini Jaiswal, referring to Wednesday’s protest. She said it was the loss of clients due to less bail pleas that was causing heartburn to most district lawyers, “Litigant had nothing to do with the amendment but it is he who suffers the most because of such strikes. Even when SC has termed strike as `gross misconduct’ lawyers resort to it, this is extremely unfortunate. If we take a fee we are dutybound to provide legal service to our clients,” she said.

While the bar associations claim the amendment will lead to increase in crimes like kidnapping, stabbing, forgery etc, lawyers like Ashok Arora see nothing wrong in the amendment, concluding it will in fact “help administration of justice”. He added, “Whether bail matters will be reduced or not shouldn’t be concern of any profession. As lawyers our aim should be to help in administration of justice.”

Even the judges, speaking on condition of anonymity, maintained the bar striking work at the drop of a hat on every issue was unacceptable. “In district courts, many lawyers are dependent on fighting cases for anticipatory or interim bail. Therefore this amendment has left them fuming,” added an HC judge familiar with the workings of lower courts.

It was left to Delhi High Court Bar Association president K C Mittal to stand by his lower court counterparts and back their demands. “Amendment does suffer from many defects which will have consequences like escalation of crime. Giving discretion to police to arrest or not means there will be no deterrence,” Mittal told TOI. When asked if going on strike was a good way to protest against this change, Mittal claimed it was being done only to warn the public of what trouble lies ahead due to the changed CrPC. “How do we raise a point? We keep shouting, sending representations, letters, etc but no one listens.”

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) BILL, 2008

January 8, 2009

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) BILL, 2008

http://164.100.24.219/BillsTexts/RSBillTexts/PassedRajyaSabha/CrPC%20as%20passed.pdf

The views of Save Family Foundation on these amendments in CrPC are:

 
1. This is an insult to the Honb’le Apex court of India by Lawyers themselve. The amendments in the CrPC, sections 41 to 60A in the present bill are actually the formal introduction of the “guidelines for making arrest” by the Honb’le apex court in its various judgements like:
 
1. “SHRI D.K. BASU VS STATE OF WEST BENGAL [1997] S.C.C. (crl) 92” and
2. “JOGINDER KUMAR Vs. STATE OF U.P. – 25/04/1994 (CITATION 1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2)662)”.

2. Lawyers are protesting just because it is a blow to their bussiness of extortion in hand and gloves with the state police. As the guidelines by the apex court were never followed by the investigating agencies and the arrest is just made on the whims and fancies of the concerned investigating officers but now these guidelines are being made a part of the Code of Criminal procedure of India , lawyers and police are feeling cold.
 
3. The amendments in section 41 to 60A are actually the basic human rights of any accused under the human rights convention also worldwide.
 

4. If the bar asociations, as they are saying (that these amendments are anti human and anti society as per them), are really worried about the litingants, they should have protested about the section 21(b) of the proposed amendment, which relates to CrPC section 309, which states that:

 

“the fact that the pleader of a party is engaged in another Court, shall not be a ground for eeking adjournment”.

Although this provision is being to introduced to preed fast in a trial but this will rob the illiterate and the poor litigants from justice as they could not hire a reserve advocate if the advocate hired by them is genuinly busy in another court (more difficult now in Delhi after de-centralization of the district and session courts).

 

4. Compundability of adultery: Adultery. IPC section 497, According to this amendment, “The husband of the woman can compound the offence..- Now here again a woman is being treated as the property of her husband. What if the woman herself do not want to let the accused go, if she is a victim of the offence (as per the present lw woman is still being treated as a victim)?

 

5. The provision of a woman judge everwhere in case of investigation and trial of offences under IPC 376 to 376-D, is just an indirect way of creating gender discrimination in the judiciary as the demand of reservation of the women judges in the higher judiciary was straightforward rejected by the Honb’le CJI.

 

6. Why according to section 1(2) of the act, “different dates may be appointed for different provisions of this Act” for this act to come into the force? So, It is already anticipated by the so called law makers that these amendments will be opposed. So, as per the then political equations and negotiations, individual provisions will be picked up.

 

Laws fail the acid test as attacks rise

January 5, 2009

Laws fail the acid test as attacks rise

4 Jan 2009, 0157 hrs IST, Neelam Raaj, TNN

http://timesofindia.indiatimes.com/Sunday_TOI/Laws_fail_the_acid_test_as_attacks_rise/articleshow/3932686.cms

As 2008 drew to a close, so did 22-year-old Swapnika’s life. A spurned lover had thrown acid at her as the final-year engineering student returned home from college in Warangal, Andhra Pradesh. She died on December 31. Blinded and burnt, her 21-day ordeal ended in hospital.

Swapnika is one of many. Each year, a number of women are killed, maimed, blinded or scarred for life in acid attacks across the country. But they don’t even become a national statistic to mourn. The National Crime Records Bureau doesn’t collect data on acid attack victims. But piece the picture together from newspaper reports and the gravity of the problem is clear. Just days after the attack that disfigured Swapnika and eventually took her life, acid was thrown at a girl in Delhi as she stepped out of a metro station. She escaped with minor burns but not everyone is so lucky. In August, a 20-year-old Kolkata tailor threw acid at teenaged sisters because their mother had refused to let him marry the younger one. Both girls were fearfully disfigured.

Activists who work with survivors of acid attacks lament the lack of laws to regulate the sale of concentrated acid. “A 10-year-old can walk into a shop and buy a litre of highly concentrated acid over the counter for less than 20 rupees,” says Sheila Ramanathan who heads the Human Rights Law Network in Bangalore. Ramanthan points out that Bangladesh has an Acid Control Act, which regulates the sale of acid and also the way it is produced, stored and transported. But in India, acid is carelessly allowed to become a deadly weapon.

“Prevention is the only way to stop these attacks. There is no other quick-fix as the scars that are left behind are permanent,” says Sanjana, who works with the Campaign and Struggle Against Acid Attacks on Women (CSAAAW). A Bangalore-based coalition, CSAAW has compiled a list of 65 cases in Karnataka alone between 1999 and 2008. “These are just the victims we have met. There are scores of others and not just in Karnataka,” says Sanjana, who has made a documentary film on the subject called ‘Suttaru Sollapavadaru’ (Burnt, but not defeated).

It’s a myth that women are attacked with acid only after they reject sexual advances. Sanjana says “it’s a form of gender violence and often women who exercise their independence are targeted. When we talked to survivors, we found that women of all castes, classes and religions were being attacked by husbands, lovers, employers, jealous colleagues and even landlords.”

The CSAAAW famously helped Hasina Hussain get justice after her former boss Joseph Rodrigues poured 1.5 litres of sulphuric acid on her when she quit her job in his financially unstable firm in 1999. The acid melted her face, fused her shoulder and neck, burnt a hole in her head, merged her fingers and blinded her for life. In 2006, the Karnataka high court sentenced Rodrigues to life imprisonment.

It was a landmark case, now the source of hope to many who survive acid attacks. But experts say the existing laws are sorely inadequate. In the absence of a specific law, acid attacks come under the purview of Section 326 of the IPC, which deals with voluntarily inflicting grievous physical injuries with a weapon. But it is a bailable law and carries a maximum punishment of seven years in prison. Consequently, the victim is left to face life scarred and disfigured forever but her attacker is granted bail and can hope for a trial delayed for decades.

But that could change. The National Commission for Women (NCW) has prepared a draft of the Prevention of Offences (by Acids) Act, 2008. The Bill, which has been sent for approval to the Union ministry of women and child development, specifically deals with acid attacks. It includes schemes to treat and rehabilitate victims. “The NCW’s proposed amendments to the IPC will make acid attacks a cognizable, non-bailable offence, which will attract a prison term of not less than 10 years,” says Samarender Chatterjee, member-secretary, NCW.

Activists welcome the proposed law but say the focus should be controlling the sale of acid rather than punishing the perpetrators. “It is a band-aid solution. For an acid attack victim, no amount of money for plastic surgery or punishment for the accused can wipe the pain and trauma away,” says Sanjana.