No Arrest in dowry harassment matters!

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Translated from Hindustan Dainik (Click here for the Scanned PDF)

  • No arrest in matters where the maximum punishment is less than 7 years
  • Law commission gave report to home minister
  • No need to review the provisions of stay

The path is clear for the implementation of Cr.P.C. amendments that have mandated no arrest of the accused in cases leading to less than 7 years of imprisonment. Law commission, along with tightening the grip on police officials, has recommended the continual of recent amendements. The commission said it is un-necessary to ponder on the other section – 309. Staying the proceedings or not is a matter of court’s jurisprudence.

Under the new provisions 41-A, the police will not arrest the accused for crimes that are punishable with less than 7 years. In stead, the police can issue a notice ‘informing’ them that they should appear at the police station for investigations.

The commission said that the word ‘may’ should be changed to ‘will’ in the provisions. This implies that sending the notice to the accused should be made mandatory. Commission said this is to ensure that police officials do not benefit the accused under any political pressure or by unfair dealings. The commission also said that if the addressee of the notice hides own identity, then this can be a basis for arrest.

In the report, chief of the commission Justice A R Laxman clarified that the decision not to arrest the accused is equivalent to judicial directives. If a police official mis-uses powers, then he would be liable for contempt of court in addition to the departmental disciplinary action.

AMENDED SECTION 41-A: police will not arrest person accused with offenses punishable with less than 7 years. In stead, a notice will be issued to them. Only on a failure to follow notice can an arrest happen with the orders of a magistrate. Crimes like eve teasing, attempt to loot, and dowry torture will come out of the ambit of arrest. Till now, an arrest used to happen immediately after the registration of F.I.R. because offenses with more than 3 years punishment were cognizable.

Intention: stopping arrest in un-necessary and false cases. Also to reduce the crowd in jails

Opposition: Criminals will lose the fear of law

AMENDED SECTION 309: not to stay the case in the absence of lawyer

Intention: To reduce the burden of cases and controlling the tendency to delay proceedings for a long time

Opposition: lawyers said, this is against the natural principles of law. Accused will suffer because of this.

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Indian police encourages abuses: Human Rights Watch

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LONDON: India is modernizing fast but its police still indulges in widespread human rights violations, a prominent human rights group claimed on Tuesday as it pressed the government to overhaul a “failing system”.

The US-based group Human Rights Watch said “India is modernising rapidly, but the police continue to use their old methods: abuse and threats.”

“India’s policing system facilitates and even encourages abuses,” the 118-page report said.

It said there has been little change in attitudes, training or equipment since the police was formed in colonial times with the aim to control the population.

The report said the government must take major steps to overhaul a failing system.

Brad Adams, Asia director at Human Rights Watch said, “it’s time for the government to stop talking about reform and fix the system.”

The authorities require a major overhaul – otherwise the beatings, torture and illegal killings will continue to stain India’s democracy, he said.

According to the report, there was no immediate response from the Indian authorities.

Sexual Harassment Bill to contain misuse clause !!!

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Finally, SIF’s voice is not only being heard but also been given due consideration.After relentless pressure on Law Ministry, the misuse clause in the proposed “Protection of Women from Sexual Harassment Bill” is going to be included. This is just a small victory for SIF, as we have a long way to go.

It was not at all an easy win. WCD, NCW and Lawyer’s Collective tried their best to thwart the effort. They even recommended to delete the Clause 12, that deals with punishment for the women who misuse Sexual Harassment at Work Place law. It really amuses me with the kind of logic these feminists use. The proposed bill offers redressal measures for women employee at workplaces who have been victim of sexual harassment. The procedures defines that the organisaton will have an internal committee that will look after such cases and guilty will be punished as per their defined service rules. When talking of misuse, these feminists say Indian Penal Code contains provisions to deal with misuse of law. The need is to strengthen it. It is really laughable, when the law in itself is not covered by IPC, how come IPC section come into play when there is misuse. Law Ministry has rightly dismissed the logic.

This brings to an important aspect. 498A, 304 B and DV Act are separate provisions, dealing specifically with grievances of a wife. Aren’t these greivences covered under IPC. We have extortion law for demand for dowry, murder law for dowry death and hurt law for domestic violence. Where has their logic of strengthening IPC gone ? Why do they want a separate law when issues of wife are concerned ?

When it comes to misuse of law, they talk about provision already in IPC and when it comes to cruelty on wife, they want a separate law even when IPC provides for it. This could only be to meet specific agenda of extorting under the legal framework.

Legalised Extortion, a la feminist style.

Legal Terrorism and Illegitimate Legislation

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In recent years, the number of abusers of women protection legislation for personal gain or to settle scores has gone up substantially. Concomitantly, the numbers of false cases, the incidents of malfeasance, illegal detentions, police and judicial corruption as well as the backlog of unresolved cases have also skyrocketed. The trend shows no signs of waning. What makes this process so easy and convenient for the criminally minded individuals, families and state officials? The answer lies in the active state support and participation in this nefarious scheme of “legal terrorism”. While this state participation is occurring at the expense of the well-being of ordinary, law abiding citizens who have not violated any laws, the parasitic elements of the society like unethical lawyers, fund chasing and morally bankrupt feminists, lowly judiciary and corrupt police officials are immensely benefiting from this pernicious practice.

– What is the root cause for the proliferation of state sponsored legal terrorism in our country?

– Would the state sponsored legal terrorism cast its shadow in ever more areas of our public and private lives?

– Should the citizens be resigned to this state of affairs?

– What is the prognosis for the future?

In this article, I will attempt to address some of the concerns raised above.

Root Cause of Legal Terrorism is Illegitimate Legislation

The root cause of the state sponsored legal terrorism is the existence and passage of illegitimate legislation in our legal regime. Most reasonable and objective persons can quickly tell right from wrong and fair from unfair.  Thus most reasonable and objective people can also tell apart a legitimate law from an illegitimate one.

There can be several bases on which one can conclude a certain legislation to be illegitimate. However, most illegitimate legislation is identified by the following five characteristics –

Discriminatory

According the Universal Declaration of Human Rights, “all are equal before the law, and are entitled without any discrimination to equal protection of the law”. Any laws that are explicitly or implicitly discriminatory are illegitimate. Any demagogue would be tempted to play vote bank politics and pass discriminatory legislation that can rob the non-vocal minority off its legitimate protections that are hallmarks of any civilized society. In most civilized countries, constitution places limits on the illegitimate laws passed by the demagogues. For example, in the United States, any discriminatory legislation could be shot down by the Supreme Court of the US as unconstitutional if challenged. Such protections do not appear to exist in India. At least, the Supreme Court has not displayed the courage to declare discriminatory legislation as unconstitutional. Most of the ostensibly women protection laws in our country (like PWDVA, adultery laws, alimony laws) are discriminatory and thus illegitimate.

Presumption of guilt

As the jurisprudence evolved over the centuries, it has become an universally accepted maxim that an accused person is innocent until proven guilty. It is always the responsibility of the accuser to prove the guilt. In modern India, this maxim has been subverted thoroughly. In the name of special protections, the accusers have been given free pass to accuse any person at their fancy. The state, in turn, has assumed the proxy role to prosecute the accused at the taxpayer’s expense while placing the burden of proving innocence on individual citizen. This is a monumental distortion of principles of justice. Any legislation that presumes the accused as guilty until proven innocent is illegitimate. The best examples are ipc304B and ipc498A.

Summary action

Legislation that allows summary action by the judges or other officials is also illegitimate. Summary action may include confiscation, imprisonment or other penalties. Watch out summary provisions in any legislation to declare it as an illegitimate legislation. PWDVA is the best example.

Multiple laws to confer the same benefit

Many a time, in spite of the existence of legal provisions addressing certain benefits under law, new laws are passed conferring the same benefit. This results in unscrupulous elements filing multiple cases under these differing legal provisions for the same benefit, thereby flooding the court system with frivolous and vexatious litigation. The best example of this practice is the alimony and maintenance laws like 125 Cr PC, Section 24 of HMA and PWDVA.

Based on anachronistic assumptions

Society is constantly changing and evolving. Legislation passed hundreds of years ago under colonial rule may not have any relevance in the modern times. Such legislation must be scrapped and replaced with modern legislation that reflects the realities of the current state of our country and its citizens. If you come across shrill voices opposing changes to anachronistic legislation, please understand that is an illegitimate legislation still existing in our law books. It is time to agitate for changing such illegitimate anachronistic legislation. The best examples are the alimony and adultery laws in India wherein women are perpetually assumed to be victims even when they are the perpetrators.

The Real Victims

Who are the real victims of this legal terrorism?

Any unsuspecting individual who is compelled to defend oneself against charges under any illegitimate law automatically becomes a victim of that law. Law is a coercive state instrument. Inherent fairness is a fundamental pre-requisite for the citizens to have faith in the law. When the law fails the test of fairness, individuals charged under that law become victims of state sponsored legal terrorism. In those circumstances, the guilt or innocence of the individual becomes irrelevant. Do not inquire into the guilt or innocence of the individual when that individual is on the receiving end of illegitimate laws. Extend compassion and support to them unconditionally.

Strategies to counter Legal Terrorism and Illegitimate Legislation

Reposing faith in democratic institutions to counteract the evil consequences of illegitimate legislation may not always produce results. In fact, democracy uncurbed by the constitutional limits, as is the case in present India, will always result in the passage of illegitimate legislation to safeguard the interests of vocal sections of the population. Further, corruption also plays a major role in the passage and preservation of such legislation. Once the vested interests become entrenched, the ordinary citizens become powerless in the face of massive state power and state sponsored legal terrorism.

Are we, the ordinary citizens, helpless against this state sponsored travesty? Or are there any ways in which we can counter this?

Here I am outlining some strategies that can be employed collectively by the civil society to counter this menace.

Counsel the victims

This is by far the most important strategy. When an individual is pitted against the massive state machinery, the morale of the individual takes a massive beating. In many cases, the victims of legal terrorism, overwhelmed by the odds of fighting the corrupt state machinery out to persecute them, end their lives. When such demoralized individuals come in contact with other victims, their feelings of powerlessness and hopelessness tend to be alleviated substantially. The mere act of listening to their sad plight gives them courage and strength to fight back against the injustice. Besides, the victims can learn from each other and support each other in various other ways. In fact, the common suffering will prove to be a strong bond that will result in lasting friendships. I implore all the victims reading this article to become counselors. (See above on “The Real Victims”)

Show contempt

As Mahatma Gandhi said, cooperating with evil is worse than the evil itself. The illegitimate legislation must be held in utmost contempt it rightly deserves. Just because it was passed by the parliament, it does not become legitimate if it has failed the test of fairness as discussed above. Pay particular attention to the shrill voices of vested interests that defend the illegitimate legislation.  Check on their backgrounds and understand how these vested interests stand to benefit from the existence of the illegitimate laws. Argue with them and expose them at every opportunity.

Spread awareness

Another related strategy is spreading awareness in the society about the existence of these illegitimate laws. Most of the victims of legal terrorism are caught unawares when a barrage of criminal and civil cases hits them like bolt of lightning from the blue skies. Until it happens to them, most citizens are blissfully ignorant of such laws. In fact, one of the main secrets of the propagators of illegitimate legislation is obfuscation. These propagators deliberately hide the most pernicious provisions they included in these laws in most open debates. As soon as the heat is turned up in any debate, they slip back in to platitudes and lies. The best example of this deception is “Karan Thapar vs Renuka Chaudhary” debate in which Renuka Chaudhary fell back to her rhetorical lies like “every minute a woman is burned for dowry” or something on those lines, when sustained questioning by Karan made her squirm.  One of the best weapons to fight the illegitimate laws and legal terrorism is spreading awareness. Internet will play a significant role in spreading awareness about illegitimate legislation.

Social boycott and ostracism

Finally, the most potent weapon to counter legal terrorism is the social boycott and ostracism of its perpetrators. Most relationships and transactions in our traditional society are carried out based on trust and reputation of the families. No sane person would like to enter into any marital relationship with a family who ruthlessly used the illegitimate legislation to unleash legal terrorism on another family.  Exposing the truth about the perpetrators of legal terrorism will be enough to caution other families that plan to enter into any kind of relationship with them.

Prognosis for the future

The strategies outlined above will prove to be the philosophical underpinnings for the resistance movements that will proliferate across the country to counter the menace of legal terrorism. Save Indian Family Foundation is the best example of such social resistance movement that is employing the above strategies successfully to counter the evil consequences of illegitimate women protection legislation in India.

Source

Men are committing suicides due to Domestic Violence

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Bangalore, 11 April: Canadian citizen of Indian origin Mr. Syed Makdoom committed suicide recently, unable to bear the pain of separation from his child by his estranged wife with whom he was involved in a custody dispute. He had been fighting a court battle since 2005 with estranged wife in Bangalore after misunderstandings cropped up between the two. As per Mr. Kumar Jahgirdar, President of Non Governmental Organization, “CRISP”, Makdoom committed suicide as he was unable to bear the mental torture meted out to him. On this, Panduram Katti, President, Save Indian Family Foundation, raised a point that there has been a phenomenal increase in suicides by men and this tells us that they are being tortured to a very high level.

As per statistics by National Crime Records Bureau analysis in the year 2007, 158,000 married men committed suicide in the last 11 years. Some Non Governmental Organizations believe that the main reason of increase of suicides of married men is the mental torture and harassment meted out to them. Jahgirdar receives a lot of cases where men are tortured. He said most of these cases are either cases where Domestic Violence Act has been misused against them or those cases where they are a victim of acute mental stress and depression in absence of any available channel of relief from Domestic Violence that they suffer from. Often the torture culminates in men’s suicides.

Panduram Katti also told that social problems like divorce and domestic disputes are increasing. Foundation did a nationwide survey on about 334 couples and found out that when it comes to confidence and strength, husbands are much weaker than their wives. This is manifested by their mental stress. As per Katti, this ultimately leads to suicide for many men.

Foundation member Virag, told that all over the country 158,000 married men have committed suicides in the last 11 years due to domestic violence. Especially after 1998 the suicide rate has shot up and risen by 40% he added. As per him, every week 50 cases are received by the Foundation. Karntaka Rakshana Vedike member Prem Kumari has said that every week she receives around 300 cases of domestic violence out of which 50-60 cases are of men facing domestic violence.

As per Jahgirdar, around 2 years back, Domestic Violence Act was passed by the Parliament, And after the enactment whether there has been a reduction in the number of incidents of domestic violence on women is a matter of research, however, men’s suicides have increased a lot and because of that men’s harassment coming to forth is a matter of concern.

India’s judiciary is not a holy cow

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Hong Kong, China — The Supreme Court of India is known for using its constitutional mandate and authority to initiate actions in the public interest. The court in the past has even taken note of newspaper reports to initiate actions against suspected breach of law and misuse of office by public servants.

This earnestness and enthusiasm have not been reflected in the Indian courts’ approach in scrutinizing the activities of the courts and their judges, however. On the contrary, the Indian courts have been very parochial in facing criticism.

Earlier this year, the Supreme Court of India was found locked in a battle with the legislature regarding the issue of transparency of the judiciary. The court that once said the newly implemented right to information law was a necessity in India to bring light into the dark corners of administration, is becoming increasingly wary about the same principles applied to the courts.

This attitude is an extension of the Supreme Court’s earlier “allergy” toward bringing transparency into the Indian judiciary. In 2007 the court forced Vijay Shekhar – a journalist with a television news channel who exposed the caucus of a corrupt magistrate, his court staff and some lawyers in Gujarat state in a “warrants for cash” scam – to apologize to the court or face a term in jail for contempt of court. The court staff and lawyers were caught on camera negotiating and accepting bribes for the magistrate for issuing arrest warrants.

The Supreme Court took up the matter and directed the Gujarat High Court to initiate an internal enquiry against the concerned judicial officer and his staff. The Gujarat High Court absolved the judge, however, without examining the complainants. Thereafter, the Supreme Court of India condemned the journalist who had carried out this operation and threatened to send him to jail for contempt unless he apologized.

The conviction and sentencing of journalists in 2007 for publishing information about the conduct of Justice Sabharwal, a Supreme Court judge, had brought to the fore the issue of judicial accountability. But the issue soon died a natural death, since no one wanted to get into trouble with the court.

The Indian judiciary is one of the most powerful in the world. Its conduct has a direct impact upon the life of ordinary people. A state institution of such high powers must be transparent and accountable for its actions.

The courts in India have however consistently avoided calls for accountability despite many serious allegations of misconduct and misdemeanor. At one time Justice S. P. Bharucha, the former chief justice of India, admitted that about 20 percent of the higher judiciary was corrupt. According to Justice Michael Saldahna of the Karnataka High Court, it is 33 percent. Despite such admissions, no enquiry has ever been initiated against any judge in the past 15 years.

Under the Constitution of India, the only way to remove a judge from the High Court or the Supreme Court is by way of impeachment. This constitutional provision has failed miserably. Its ineffectiveness was clearly demonstrated in the case of Justice V. Ramaswami. At the same time, despite verbal homilies, the courts and judges have been the most reluctant to evolve even a self-monitoring mechanism for accountability. Such a situation reflects enormous arrogance and abuse of power.

This is reflected in the procedures for appointing judges to the higher judiciary as well. Even though appointments are made by the president of India, the selection is made by the collegium of judges. The selection process is nontransparent and all attempts to make the process transparent have been resisted by the judiciary.

Demanding judicial accountability has almost always caused the initiation of contempt proceedings, thereby stifling free discussion on the issues that plague the judiciary. Unwarranted use of contempt of court proceedings in fact diminishes the public perception about the judiciary’s openness and transparency.

There are judicial systems in Asia considered to have failed beyond the point of recovery. Of these, the most glaring example is the Sri Lankan judiciary, which is now facing criticism on all counts including politicization of the judiciary to meet the ends of a corrupt chief justice. The chief justice of Sri Lanka, an infamous figure in the country, is feared for abusing contempt of court proceedings against anyone who opposes his questionable actions.

The Supreme Court of Sri Lanka has now stooped to a level where public perception about the impartiality of the court and its competency to decide matters on their merits is at an all-time low. As a result the general public views the courts in Sri Lanka as a failed state apparatus which in fact adds to the decades-long ethnic conflict in that country.

The term democracy implies the notion that the people are supreme. All state institutions, whether it be the judiciary, legislature or the executive, are merely servants of the people. The basic principle behind the contempt of court proceedings is that the court must use this authority only in circumstances where otherwise the functioning of the court would be impossible or obstructed.

In India under the Contempt of Courts Act, 1971, the term “contempt” is not defined. Therefore if any person makes adverse comments against the court or a judge, the power to punish for “scandalizing the court” is frequently invoked. This approach is considered obscure in most established jurisdictions.

The contempt of court action must not be an attempt to protect the dignity of the court, but to promote the administration of justice. The dignity of the court is promoted by the court being humble enough to face criticism, whereas promotion of justice is to be carried out by removing all hindrances to the delivery of justice. By the unrestrained use of contempt of court actions the courts in India are in fact derogating from their duty to safeguard the Constitution of the country, which also guarantees freedom of speech and expression in Article 19 (1).

The honor of the judges and the judiciary – the state institution through which the judges are supposed to serve the people – is promoted and protected by the openness of the judges and the judiciary to criticism. Intolerance to scrutiny and lack of openness equates the judges and the judiciary with a dictatorship.

At this pace the Indian judiciary, once known for its eloquence and its contribution to the advancement of free thought and expression, will soon be reduced to an egotistical institution. Such a judiciary is definitely not what modern India aspires to. India today requires a transparent, accountable and sensitive judiciary.

The imperatives for the judiciary in India are obvious. It has a duty to protect, promote and fulfill the Constitutional guarantees. The judiciary must be open and transparent with a clear conscience that it is not beyond criticism. For this, it must be accountable to the people, which it is bound to serve. The judiciary in India is the last hope of a fragmented society. When it fails to respect its responsibilities, it will bring insurmountable peril to the country and its people.

(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master’s degree in human rights law.)

Jaipur men victim of false dowry cases

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JAIPUR: Two cases of dowry harassment and domestic violence are registered everyday with three Woman Police Stations in the city. Thirty alleged dowry deaths were reported in the district in 2008. Amid hue and cry by the NGOs and other social organizations over the alleged misuse of sections related to dowry harassment and domestic violence, there is another aspect which goes unnoticed most of the times. There are many people who have to suffer at a very young age due to such cases. Their career is ruined and they are left with no other option but to suffer from delayed judgments and biased police investigation.

“There are many cases pending in courts in which young professionals, including doctors, engineers, software engineers, etc. are involved,” said Ashwani Bohra, an advocate who prefers to fight cases from the groom’s side alleging misuse of IPC sections related to domestic violence and dowry harassment.

Giving an example, he said that dowry harassment and domestic violence cases were filed against one of his clients – Amit Jain who had completed his MBBS and was to appear for MS entrance exam. But due to the case, which is pending in the court, he could not sit in the examination and his promising career as a doctor has been ruined,” said Ashwani.

A physically-challenged person, Rameshwar Meena, a resident of Chaksu in Jaipur, was finally disposed of all the charges against him by his wife recently. When the trial was going on, he cleared an exam for second grade schoolteacher, but due to the trial, his career seemed to be in limbo.

“It was a horrifying experience. I was accused of beating up my wife and fake medical certificates proving me a brutal person were prepared and produced in the court. I was alleged of demanding a motorcycle from my wife which I never did as there is no use of motorcycle for me as I am handicapped,” said Rameshwar.

“In most of the cases, the FIRs are lodged by giving distorted facts and police either act lethargically or adopt a biased attitude which cost dear to the groom and his family,” Ashwani added.

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