Uniform Civil Code

Reading time : 8 minutes

Table of Contents

Introduction
Development of Uniform Civil Code in Colonial Times
Post-colonial era
Uniform civil code through Constituent assembly debates
Article 44
HINDU CODE Bill
Shah Bano Case
Personal laws and Article 13
UCC and Gender Equality
UCC in Goa
Conclusion

Introduction

India is a diverse country. From north to south and east to west the diversity is very prevalent. With 6 major religions and a number of castes and sub-casts. Ours is the most diverse country on the planet. Each religion stems from different roots and ancient scriptures. These customs and usages have been ever evolving and, in the process, have taken form of laws. These laws are termed as personal laws. The Hindus, the Mohammedans, the Christians, the Parsis all possessing their own personal laws dealing with the issues arising within their communities. Apart from the broader religious distinctions in personal laws the laws also differ from caste to caste and even from one geographical territory to another. There is no one set of rules governing all even though all live in one country. That’s the Unity in Diversity Nehru talked about in his book. ^[[1]]

Talking about preserving the Diversity in India the Supreme court of India in Navtej Singh Johar v. UOI ^[[2]] said ‘vision is to accommodate all differences of culture, ideology and orientation’.

Even when we talk about protecting this diversity, the Uniform civil code has always been a point of contention right from the constitution of this nation, in fact even before that. The Uniform Civil Code seeks to bring all personal laws under one common framework governing all these diverse religious and cultural communities. Hence creating “one rule for all”. It was the vision of the Framers of the constitution to eventually establish a common code for all in the pursuit of achieving oneness and integrity ^[[3]]. But it’s been 75 years since the inception of this Republic and the Uniform Civil Code (hereinafter referred to as UCC) still remains a vision to be sought. With the election manifesto of the current government promising the implementation of UCC across India and many state Chief ministers too talking about working towards the same the discussion on this topic cannot be any more relevant.

But before we come to the current scenario lets look into the history and development of UCC in this country.

Development of Uniform Civil Code in Colonial Times

The debate over the UCC dates back to the 19^th Century when India was a British colony and the administration legal, legislative and executive was managed by the colonizers. The Lex Loci report of 1840 though talked about the unification and codification of Indian laws relating to crimes, evidence and contracts, it deliberately kept out of its realm the personal laws. Some attribute this to the British policy of Divide and rule. Some attribute it to the fear of backlash from the orthodox religious communities taking lessons from the Mutiny of 1857. The Queens Proclamation of 1858 declared nonintervention in matters of religious beliefs in British India.

Still the Crown did not completely abstain itself from legislating on religious matters. As stated earlier there were discrepancies even within the religious laws for example the Shudras allowed widow remarriage contrary to Hindu law. There was conflict in customs governing communities like Jats and Dravidians. The Hindu Widow Remarriage Act 1856, The Married Women’s Property Act 1923 and the Hindu Inheritance (removal of disabilities) Act 1937 may be seen as some of the instances where the British Raj tried to bring reforms in the personal laws.

Even the sharia law was enforced for Muslims across the country as there were differences as to the local laws as many of the converts still continued to abide by their local customs and usages. All of this created a lot of issues in delivering justice. In 1866 the Judicial committee of the Privy Council placed the Shariat over all the local customary laws. In the following years the High courts of Calcutta (1882) and Allahabad (1900) disallowed the use of customs. However, the Judicial Committee of 1913 decided that customary laws play an important role in Muslim law and hence allowed them.

It also needs to be noted that only the Hindu and more so the Muslim communities were feared in the sense of legislating on them. The Indian Christian Marriage Act 1872 brought major reforms and procedural changes in regard to Christian marriages.

Post-colonial era

As seen above even after a number of legislations there still existed large scale discrepancies in personal laws. The B.N Rau committee which was set up to study the need for common Hindu laws concluded that it was time to move towards a Uniform Civil Code in order to get past the discrepancies and unequal treatment of women. This committee only focused on Hindu laws.

Implementation of common code was also the intention of the constitutional framers and thus Article 44 was inserted in the Constitution.

Uniform civil code through Constituent assembly debates ^[[4]]

There was a lot of contention over the UCC in the constituent assembly. There was a division over whether or not to include UCC in the Fundamental Rights Chapter. There was backlash pre-dominantly from the Muslim members.

Kazi Kamaruddin argued that local laws and customs are very significant part of Muslim personal law and there was not a single Muslim who wanted change in the personal laws. So, the state should not interfere.

Hasrat Mohani contended that the Muslims derived their personal laws from the holy Quran and they are interpreted therein. No human agency has ever interfered in these personal laws. Any interference will lead to a significant backlash from the Muslim community.

Naziruddin Ahmed was of the view that there was no doubt that there would be a common civil code in this country. But the state should not be in a hurry. What the Britishers couldn’t do in 175 years what even the Muslim rules did not do over 500 years the state should not at once. That the state should work with caution and all the communities that are to effected by any such legislation should be comprehensively consulted. Another member called the article tyrannous to the minorities.

In support of the article KM Munshi (Bombay General) argued that the submission that it would be tyrannous to the minorities is farfetched and unreasonable. He also stated that many modern Islamic nations do not recognize the local customs of minorities. He also submitted that “When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts, they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minority then?”

He also said that if there is no Civil code it would be disadvantageous not only to the minority but also to the majority. Hindus have different schools of thoughts Mitakshara,, Dayabhaga etc all with different sets of rules. How come in a unified nation a same religion be governed by different laws. Addressing the opposition of Hindus to the Civil Code Munshi said “They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India”.

DR. B. R. Ambedkar while addressing the issue whether it was desirable or possible to have a common code stated that there was already a uniform criminal code in Indian Penal Code, there is Transfer of Property Act and Indian Contract act for certain civil matters and various other examples proving that there is a Uniform Code in the country except for the matters of marriage and succession. That only a little corner was left untouched and Article 35 [ UCC was Article 35 in the original draft] was intended to bring about that change. He too like Munshi reiterated that many Muslim communities were already governed by Hindu derived laws due to their conversion and it was only recently after Shariat was made mandatory that they came to be governed by it. He stated that “Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus, law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35, I am quite certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

But Ambedkar also clarified that the article was not a compulsion on the state to enact a Uniform Code as soon as the constituent comes into being, rather it was more of an advisory. So, the citizens should not be apprehensive that the parliament will immediately proceed to implement a code found objectionable by them.

B.N. Rau the advisor to the Constituent Assembly stated that the Directive Principles were intended as moral precepts for the authorities of the state and that they have at least an educative value.

The issue whether to include UCC in Fundamental rights was settled by a 5:4 majority. The fundamental rights sub- committee led by Sardar Vallabhai Patel held it to be of less importance than freedom of religion and outside the scope of Fundamental Rights.

Article 44

Article 44 included in Part 4 of the Constitution states that – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India

The very fact that it was included under Directive Principles of state policy and not under Fundamental Rights highlights its advisory nature and lack of enforceability. Article 37 makes it very clear that none of the directive principles will be enforceable by any court, but the principles are fundamental in governance of the country and it shall be the duty of the state to apply these in making laws.

Marital Rape: A justification to rape?

Reading time : 8 minutes

“Even in a marriage, howsoever elevated we may take the expectation of a sexual relationship, you cannot claim the right to have sexual intercourse with a partner.”

– Justice C Hari Shankar

Is it essential to bring the marital connection under the precise definition of “rape”?

This line of reasoning claims that because rape is a serious crime with long prison sentences, raising the allegation during a marriage conflict would have a significant negative impact.

Every citizen of India enjoys the basic right to equality and the right to life, as stated in the Indian Constitution. This means that every person of our country has the right to a life of equality and dignity, free from discrimination, abuse, or any other type of violation of these rights. However, the essential notion behind these fundamental rights is exploited shamelessly and on a huge scale, especially when it comes to gender-based crimes or minority crimes, due to the predominantly patriarchal confines of Indian marriage laws.

The Delhi High Court is currently hearing final arguments in a series of public interest litigations challenging Section 375 of the IPC “marital rape exception” clause. While the legal nuances of the subject are vast, the social and emotional impact of the subject may be seen in judicial proceedings as well as media conversations, particularly on social media. The fact that the case is in court has prompted a social media debate in India about “men’s rights” and the impact of false accusations on “men and marriage.” The dispute centres on Exception 2 to Section 375 of the Indian Penal Code, which provides that any sexual act conducted by a man on his wife is not raped if the wife is not a minor. This exemption is found in Section 375, which defines different actions as rape if they are carried out against a woman’s permission, by force, deception, or coercion, or on a woman who is incapable of giving consent. Marital rape is a controversial topic that is difficult to quantify anywhere, but especially in India, where the majority of sexual assault is considered to occur within families and remains unreported. According to the latest National Family Health Survey conducted by the Indian government, around 30% of Indian women aged 18 to 49 had suffered domestic abuse. According to a poll of 724,115 women, the average Indian woman is 17 times more likely to experience sexual assault from her spouse than from anybody else. The struggle to make marital rape illegal has been going on for decades, but it gained traction in 2012 after a savage gang rape on a New Delhi bus stunned the globe. Because her name could not be publicly publicized as a victim of sexual abuse under Indian law, the victim, who died of her injuries, became known as “Nirbhaya” – the fearless one. Her case prompted changes to India’s rape laws, including a broader definition of rape and longer prison penalties for those found guilty.

The Indian Penal Code (IPC) continues to specify that a husband is free from prosecution for rape on his wife, subject to the wife’s age. In India, where the husband has ultimate dominance and legal recognition over the rights of the wife, this is a clear example of the present standard being outdated and strongly skewed against women. Sexual intercourse between a man and his wife, if the wife is not under the age of fifteen, is not rape, according to the second exemption of section 375 of the IPC. In addition, the age provision was inserted into the IPC only after several cases of child brides dying as a result of premature intercourse with their husbands. Legal issues should be discussed in addition to the apparent ones of “social discord” and “damage to marriage and family institutions.” The most crucial point before the court is how “consent” can be defined, especially in marriages when there is “implied consent” and “expectation of conjugal sexual interaction.” The justices also pointed out that there is a discrepancy between the “right to have sex” and the “reasonable expectation of sex,” but that the concept of consent within a marital relationship must be taken into account. If someone is married, is there “inherent consent”? The court also voiced concern that the “right to say no” could be considered a part of the fundamental right to privacy and dignity.

The issues are also Articles 14 and 19 of the Constitution are violated by the fact that an unmarried woman can prosecute a man for sexual intercourse while a married woman cannot. The issue of “expectation of a conjugal relationship,” on the other hand, as well as the societal construct of “marriage,” which is founded on implicit physical, sexual, and emotional companionship, must be addressed. There’s also the question of a woman’s autonomy and whether modern democracy can continue to rely on 17th-century legal norms that saw women as “property of the husband,” with no decision-making ability or autonomy.

The Court will also have to decide how to characterize a husband’s rape against his wife. Rape by a “relative” or a “person in a position of power and trust” is now regarded as a far more serious crime, with heavier punishments. Rape of a woman by the same individual on many occasions is also deemed an aggravated offense, carrying a higher penalty than a single event.

Also read: ALTERNATIVE DISPUTE RESOLUTION AND ITS SIGNIFICANCE

If the “marriage exception” is eliminated, the court will have to evaluate whether rape by a husband would also be subject to the stiffer punishments under the law, because proving the offense in a relationship where regular sexual intercourse occurs is more difficult unless there is proof of serious injury. The legal implications of removing the “marriage exception” from other IPC offenses must also be considered by the court. If the victim is one’s wife, might they be charged with “attempted rape” under Section 511 of the IPC? How would evidence of an “attempt” be considered in a relationship where there is a sexual interaction? One point the court has addressed is whether eliminating the “marriage exception” will “create a new offense — i.e., will the court have to define the law surrounding what types of sexual acts or behaviour would be considered “marital rape”? A key premise of Indian law is the separation of powers between the legislative and the judiciary. This means that courts cannot “create legislation” where legislative provisions already exist. The Court will also have to assess the limits of judicial intervention in this case, especially since the federal government has not committed to altering the marriage exemption.

The case of Phulmoni Dasi (also known as Queen-Empress vs. Hari Mohan Maiti) in 1881 was one of the most horrible examples of marital rape. This case deserves special attention because it drew a lot of attention from legislators and the general public. According to the facts, Phulmoni Devi, an eleven-year-old child bride, died of heavy bleeding when her husband, Hari Mohan, in his mid-thirties, attempted to consummate their marriage despite her being eleven years old. Even though the post-mortem report identified a ruptured cervix as the cause of death, the husband was acquitted of rape since the laws on rape excluded marital rape fully from the scope of the criminal code.

Current rape rules allowed a man to have sexual relations with his wife without her consent as long as she was over the age of ten at the time. Concerns about the age of consent for child brides were raised following the case of Phulmoni Dasi. With an amendment to the Age of Consent Act of 1861, the colonial government raised the age of consent from ten to twelve years in both married and extra-marital circumstances, to protect female minors from future immature cohabitation and prostitution. When the Amendment Act of 1925 was passed, a distinction was made between the age of consent for extramarital and marital rape, i.e. fourteen and thirteen years, respectively, even though the significance of this modification was weakened because the sentence for the husband was just two years. Furthermore, the said exception for married women aged fifteen to eighteen persisted until 2018, when the Supreme Court of India issued a landmark ruling declaring that a man commits rape if he engages in any form of sexual intercourse with his wife if she is between the ages of fifteen and eighteen. This was the first time that the legal definition of rape was extended to include a sexual attack on a girl under the age of eighteen by a male, even if he is her husband. This, however, does not provide any protection to any woman over the age of 18 who may be subjected to marital rape by her husband, and such cases are common throughout the country and often go unnoticed or dismissed because no law provides for any type of penalty or punishment for marital rape of a woman over the age of 18. Furthermore, the Verma Committee, which was established on December 23, 2012, in the aftermath of the infamous Nirbhaya case, recognized this feature of marital rape. The previous Chief Justice of the Supreme Court, Justice J.S. Verma, led a three-member committee. The main goal of this group was to propose changes to India’s criminal legislation that would allow for faster trials and harsher punishments for criminals accused of sexual attacks against women. The Verma Committee’s recommendations also included the complete and total criminalization of marital rape, arguing that the right to life encompasses the right to a dignified life for all individuals and that marital rape completely violates this basic right and grossly indignifies the woman. While recommending that marital rape be criminalized, the Committee noted that women in India face frequent incidents of discrimination and violence in the home and at work, and that several special and protective statutes have been enacted to protect women from such unwelcome incidents. Moreover, while criminal penalties have been established for the protection of women, no laws explicitly prohibit a man from raping his legally married wife except in the following circumstances: Any form of sexual activity or sexual act committed by a man with his wife while the wife is under the age of 15, as defined by section 375 of the Indian Penal Code, 1860. Any kind of sexual intercourse between a husband and his wife when they are separated, as defined by section 376B of the Indian Penal Code, 1860. As a result, the state’s reluctance to acknowledge the rights of a wife who is a woman and, more crucially, a living person who deserves to live a dignified and secure existence is reflected in the clear lack of any statute criminalizing marital rape in its entirety. The Indian Constitution protects a number of fundamental rights, including the right to life and the right to privacy, but it fails to recognize that the right to life also includes the right to live a dignified life and that marital rape violates the basic principle that underpins this fundamental right. Currently, the only civil remedies for married women in India against non-consensual sex are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the Indian Penal Code, which deal with cruelty against a wife by a husband or husband’s relatives. Several countries throughout the world are enacting strict anti-marital rape legislation and recognizing it as a criminal offense. Countries such as Denmark, Sweden, Poland, Norway, and the Czech Republic have already criminalized marital rape, while others are still attempting to do so due to the complexities of such a move, as well as the potential negative consequences for marital relationships and the repercussions of wrongful accusations. Most proponents of present marital rape legislation argue that criminalizing the crime will give women an unfair advantage, resulting in a high number of false allegations being filed against males. However, it cannot be argued that India’s current rape statute, which exempts the husband, is completely in violation of Articles 14 and 21 of the Indian Constitution. Marital rape is not only unequal, but it also violates a woman’s right to a dignified existence. When a woman marries, she never relinquishes her fundamental rights. As a result, any law that violates the Constitution’s emphasized clauses must be repealed entirely. In a marriage, “implied consent” cannot be regarded as “irrevocable consent,” and a woman must have the ability to say “No.” There is no justification for elevating the “marital connection” and denying a married woman the right to prosecute her husband, even if she has the right to prosecute everyone else.

Author: Roop Ahluwalia, NMIMS Hyderabad

Editor: Kanishka Vaish, Senior Editor, LexLife India

UKRAINE CRISIS AND ITS IMPACT ON INDIA

Reading time : 8 minutes

Ukraine Crisis: An overview

The world-shocking Russian military invasion on Ukraine (February 24) reached a critical juncture on Saturday (February 26), with Russian tanks closing in on the besieged capital Kyiv, even as the death toll rises and thousands of local civilians evacuate.

Since Ukraine’s pro-Russian president, Viktor Yanukovych, was overthrown in 2014 after months of protests to overthrow his government, President Putin has regularly accused the country of being taken over by extremists. However, Ukraine has not shifted to the right; rather, it has shifted to the west, which Putin hopes to reverse. When Moscow pressured Ukraine’s president not to sign a 2013 association treaty with the EU, protests erupted. In 2014, Russia retaliated by taking Crimea’s southern area and sparking a rebellion in the east, backing separatists fighting Ukrainian forces in an eight-year war that has claimed 14,000 lives. Ukraine has stated its desire to join the European Union and the NATO military alliance, but the Kremlin would not allow it. Russia began amassing large numbers of troops near Ukraine’s borders in late 2021. President Putin has denied plans for an invasion, but he has since abrogated the 2015 Minsk peace agreement for the east and recognised rebel-controlled territories as independent. He accused NATO of endangering “our historic future as a nation” as he sent in the troops. The proclaimed goal of Russia is for Ukraine to be liberated from persecution and “cleansed of Nazis.” Mr Putin has spoken of bringing to justice “those who committed multiple horrific crimes against people” under this false narrative of a fascist-run Ukraine since 2014. He has denied attempting to conquer Ukraine and has refuted a UK charge that he was planning to install a pro-Kremlin puppet before the war, but he has also stated that there will be no invasion. According to one unconfirmed intelligence report, he wants to divide the country in half. The writer celebrated a new world order in which Russia was recovering its pre-1991 Soviet unity, gathering the so-called world of Russians, Belarusians, and Little Russians (Ukrainians), in an editorial published on February 26 and then deleted by state news outlet Ria-Novosti. President Putin penned a long post last year portraying Russians and Ukrainians as “one people,” and he has referred to the Soviet Union’s demise in December 1991 as the “disintegration of historical Russia.” In Belarus, a puppet has worked out thanks to long-time authoritarian leader Alexander Lukashenko, but Ukraine is a different story. Although Russia’s Baltic neighbours face no immediate threat, NATO has reinforced their defences just in case.

Ukrainians are living in fear as shells and bombs rain down on their towns, forcing more than two million people to flee to neighbouring nations. Poland, Hungary, Romania, Moldova, and Slovakia are grappling with a massive influx of refugees, with the EU warning that at least another five million could be displaced. It is, however, a pivotal moment that has the potential to shatter Europe’s post-World War II security structure. Days after threatening the West with “consequences the likes of which you have never seen” if it stands in his way, Russia’s Putin has put his nuclear forces on high alert.

The world has been astonished by Russian President Vladimir Putin’s ruthless use of military force to alter the political geography of central Europe, and the consequences of this action are complex and multi-layered. The immediate impact is on Ukraine’s urban population of 41 million people, and television images of Russian munitions destroying military assets resemble the lethal convulsions seen in Iraq, Syria, and Afghanistan over the last two decades. The civilian casualties are heart-breaking and reminiscent of Europe’s deadly history, which until February 24 believed that such military action was a common element of a horrific past now consigned to history. Despite some ferocious opposition, the anguish and tragedy currently unfolding is a forerunner to the fall of Kyiv, Ukraine’s capital. It also appears inevitable that President Putin would impose a political framework aimed at keeping a demilitarised Ukraine neutral, NATO membership out of the question, and Kyiv dependent to Moscow. A Ukraine model based on the Finland agreement may arise, but the majority of Ukrainians will be dissatisfied and tortured. A violent and bloody civil war is a distinct possibility if they opt to fight Russian aggression. But, for the time being, Ukraine is on its own, and no other country is likely to send troops to help Kyiv. This is the doubtful reality of early twentieth century geopolitics, and a post-Ukraine global framework is forming, with multiple contradictions between aspiration and reality, mediated by the compulsions of political pragmatism – all of this in flux, against the backdrop of a Covid-scarred global economy with its tangled web of dependencies.

The Russian military’s invasion and eventual fall of Kyiv will be a watershed moment in global geopolitics, and the world is now fumbling for the contours of the post-Ukraine world order. A Sino-Russian axis opposing the US and its allies is on the cards, however given their reliance on Russian gas, various European countries have differing views on how to deal with Moscow over its invasion of Ukraine. India is in a similar situation, having developed a special relationship with Moscow over many years. The US had co-opted China as a junior partner to restrain the former USSR during the second phase of the Cold War, while Moscow had invested in Delhi through a ‘friendship’ pact. The latter connection grew into a major military inventory relationship, with India’s most important outcome being the establishment of Bangladesh. The United States’ pivot to Russia over Ukraine will have a number of consequences for India. Its vote against India in the UN Security Council may create immediate regret in Washington, but the implications of the incursion on the Indo-Pacific as a strategic zone for the US would be far more significant. Given President Joe Biden’s political importance for Ukraine, the priority of China as an ongoing problem for the US and its allies may be lowered. As a result, the US focus and related effort will be on energising an ambivalent NATO to cope with Russia and the accelerated Sino-Russian dyad, as it is highly improbable that he will go before the American voter as the President who lost both Afghanistan and Ukraine.

In the post-Ukraine setting, India will have to assess its own security and geopolitical problems, as well as manage its relations with an assertive China, which may seek to mediate the India-Russia relationship and Moscow’s standing as a military inventory supplier.

Impact of Ukraine Crisis on India

Markets have been jolted by the Russia-Ukraine conflict, which has heightened uncertainty at a time when the global economy appeared to be on the mend. With the unwind of QE, the markets expected the Federal Reserve to raise rates many times. With this war, this optimism has been shattered. India’s direct impact will be restricted to the extent of trade between the two countries. Russia’s part of India’s total commerce is only about 1%, so it wouldn’t make much of a difference. In fact, a big portion of the imports are tied to defence, and the government can work out methods to keep the accords going. The indirect impact—through the markets—is, nevertheless, a major source of concern.

Inflation is the initial point of interaction. Since the rhetorical attack began in early February, commodity prices have begun to rise. The impact of the battle on crude oil is probably the most evident, but it has also pushed up prices of metals, gas, and edible oils at a time when it was believed that prices would stabilise this year following a bull run in 2021. Since late December, manufacturers in India have been progressively raising prices and passing on higher input costs. With this new wave of price hikes, the pressure will escalate all over the place. Since November, the Indian government has refrained from raising fuel prices, citing the upcoming state elections as a reason.

The rupee is the second source of concern. Currency markets around the world have been extremely volatile since the start of the war. Currency depreciation has resulted from a mixture of war and sanctions, and the rupee has not been spared. This comes at a time when the current account balance has shifted to the negative, and a higher CAD is projected as oil prices rise.

Third, because of the increased demand for dollars, bond yields have become more volatile. Yields have been decreasing on predictions that the Fed will not raise rates in these circumstances. However, signs that this will persist as inflationary fears grow even more pronounced are driving rates up. As a result, daily bond yield volatility has kept investors guessing. However, in India, the path is clear: upwards. Following the credit policy, it was expected that the RBI would refrain from raising interest rates this year. The 10-year bond reverted to 6.7 percent because of this.

Also read: RIGHT TO BE FORGOTTEN: A REMEDY TO CYBERBULLYING

Markets have been worried as state elections near their conclusion and the global price of crude moves closer to $120. Add in the possibility that the government would just postpone the LIC IPO, and it’s clear that financing the deficit will be difficult. The 10-year bond now carries a yield of 6.85 percent. These yo-yo oscillations are likely to continue until more clarity on the severity of the Ukraine crisis emerges.

Fourth, those doing business with Russia are concerned about the payment issue. Exporters are in a bind as a result of Russia’s exclusion from SWIFT. To make matters worse, shipping companies are hesitant to transport products to Russia. As counterparties to these transactions, all entities in other countries are affected in an attempt to harm Russia. India can agree to a rupee-rouble arrangement at the government level but receiving roubles for exports may not be as appealing to private companies.

Impact on various other sectors of Indian Economy:

Steel and aluminium prices, which have recently risen from already high levels (Russia provides nearly 6% of world primary aluminium output), will continue to rise. While this would benefit domestic primary steelmakers and aluminium smelters by increasing realisations, it would have a negative impact on the construction, real estate, and automobile industries.
The higher prices can be passed on to urea producers who utilise it as a feedstock. However, if the war continues, domestic urea availability could become a problem for the agricultural industry, as about 8% of the requirement is imported from Russia and Ukraine.
For diamond polishers, persistent trade interruption can raise the cost of rough diamonds, putting a strain on their profit margins. Alrosa, Russia’s largest diamond miner, produces approximately 30% of the world’s rough diamonds, which saw a 21 percent increase in price in 2021.
Sanctions tied to trade and banking might affect industries that get critical raw materials like crude sunflower oil and rough diamonds, according to CRISIL. Sunflower oil accounts for over 10% of India’s edible oil consumption, with 90% of it coming from Russia and Ukraine. An extended battle might disrupt supplies to domestic oil mills, which normally keep some inventories on hand and have few options for changing their sourcing on short notice.
The persistent semiconductor shortfall is unlikely to provide relief to the automotive industry. This is due to the fact that Russia and Ukraine supply over 75% of the neon gas used in semiconductor manufacturing operations such as etching circuit patterns into silicon wafers to create chips.
A prolonged conflict, as well as sanctions against Russia, would stifle semiconductor output even more. According to the rating agency, import dependence on palladium and platinum, which are used in catalytic converters, and nickel, which is used as a cathode in lithium-ion batteries, is not so significant and so may not have a major impact on the vehicle sector.
Consumers could also expect a significant increase in the price of animal protein, such as poultry, dairy products, and seafood. Amul, the world’s largest dairy company, hiked retail milk prices by 4% in all Indian markets on March 1st. “Due to growing energy, packaging, logistics, and cattle feeding expenses, this price increase is necessary. As a result, the overall cost of operation and milk production has increased “Amul stated in a press release. Mother Dairy has also announced a price increase of Rs 2 effective March 6th.
The ongoing conflicts between Russia and Ukraine are expected to have an influence on domestic wheat and sunflower oil prices. Both countries produce considerable amounts of wheat. India is self-sufficient in wheat but import some high-quality grain. Furthermore, the drop in Russian and Ukrainian wheat prices on the international market will provide an amazing opportunity for Indian exporters, raising domestic prices significantly. Sunflower oil prices have surged by around 5% to 10% in the global market. For consumers who have been paying historically high prices for nearly two years, the Russia-Ukraine conflict has dashed any thoughts of relief from high cooking oil prices. This surge in price of basic amenities like cooking oil would be a heavy dent on pockets of lower and middle class people of the country.
According to a Reuters storey, the Indian Drug Manufacturers’ Association (IDMA) has stated that the disagreement will raise the price of raw materials generated from benzene or other petroleum products, forcing pharma exporters to seek buyers abroad. However, executives at Indian pharmaceutical giants Torrent Pharmaceuticals and Zydus Lifesciences said the Ukraine war had little or no influence on sales. Pharmaceuticals accounted for 30% of India’s overall exports to Ukraine between April and December last year, totalling $173.3 million, according to the research. Russia, on the other hand, spent $386 million on pharmaceuticals during the same time.
Due to feed scarcity, chicken prices have surged exponentially and likely to further surge by 40-50% during late March. Tea exports, which are referred to as chai in both Russian and Ukrainian, may also meet difficulties. Russia is one of India’s largest tea importers, accounting for 18% of the country’s tea exports. Since Iran shipments are facing issue due to payment problems, it has resulted in shorter export volumes making Russia a key nation for Indian tea export.
The war like situation between Russia and Ukraine are projected to put pressure on India’s agriculture industry resulting in raised costs and limited availability of potash, a vital component used in fertiliser industry. Belarus and Russia are currently the world’s leading suppliers of potash. India is a large importer of potash, which is utilised in fertiliser industry. Russia, Ukraine, and Belarus account for ten percent to twelve percent of India’s total fertiliser imports. With already-high prices, the government’s subsidy expenditure, which would be necessary to maintain an acceptable retail price for farmers, will skyrocket.

While there is no immediate threat to the Indian economy driven mostly by domestic demand, all of these market reverberations will have a secondary influence on the economy. Demand and consumption will undoubtedly be hampered by higher prices. High inflation will also put pressure on the MPC to reconsider its policy position, as it cannot be dismissed as temporary. Inflation will rise as interest rates rise, and the currency will remain volatile.

The global economy is about to be sent on yet another uncertain route by an armed battle on Europe’s border, after being pummelling by the epidemic, supply chain chokeholds, and price jumps.

Even before the Kremlin ordered Russian troops into Ukraine’s separatist zone, tensions were high. President Biden’s threat of punitive measures in return, as well as the possibility of Russian reprisal, had already drove down stock returns and pushed up petrol costs.

An open attack by Russian forces may result in dizzying price increases in oil and food, fuel inflation fears, and frighten investors, putting global investment and economy at risk.

Whatever the effects, they will be significantly less serious than the coronavirus’s early economic shutdowns in 2020. With a population of 146 million people and a massive nuclear arsenal, Russia is a transcontinental behemoth as well as a major source of the oil, gas, and raw materials that keep the world’s factories operating. Russia is a modest player in the global economy, compared to China, which is a manufacturing powerhouse with sophisticated supply lines.

Everyone is now waiting to see where Russian President Vladimir Putin will put an end to the offensive. Is it going to end with these two enclaves, Donetsk and Luhansk, that the Russia-aligned separatists’ control? The land claimed by these two breakaway republics as their region is larger than the west perceives it to be. Is Putin going to consider the region as a whole, or will operations expand much beyond that? Extending this operation into western Ukraine, where the people would fiercely resist Russia, makes no sense. We must wait and see what happens in eastern Ukraine, which could provide Russia with a straight land route to Crimea. The consequences of increased sanctions will be determined by what Putin does. Then we’ll have to wait and watch how the West reacts, as well as the implications for global trade, investment, energy supply, and, most importantly, India.

On a political level, if relations between Russia and the United States, as well as Russia and the West, deteriorate, India’s relations with Russia become more problematic. Then there’s the strain from India’s relations with Russia, as well as the pressure from India’s relations with the United States. We’ve had this before, starting in 2014, and we’ve been able to maintain our two relationships separate. As a result, it will be a continuous political struggle.

According to conventional thought, China will lead the global GDP ladder in the coming decade, with the United States a close second and India a distant third. This gives India a ‘swing’ position in the developing geopolitical arithmetic, and both Washington and Beijing will be adjusting their long-term strategies in response. However, India’s reputation as a liberal democracy devoted to the normative concept would be crucial, even if Delhi was forced to remain silent over Russia’s invasion of Ukraine.

Author: Ravina Raj, NMIMS Hyderabad

Editor: Kanishka Vaish, Senior Editor, LexLife India

SEXUAL HARASSMENT AT THE WORKPLACE WITH SPECIAL REFERENCE TO VISHAKHA GUIDELINES

Reading time : 5 minutes

ABSTRACT

With time, opportunities for women in both educational and employment sector have increased. Now, thousands of women strive to work and earn for themselves without being dependent on their family or husbands. However, do these women also get a safe and secure environment to work? It is still a question at many places. One of the main reason due to which females choose not to work is sexual harassment that takes place on daily basis with them at the corporations by other employees or the employer himself. It is very important that as a nation, we work towards providing a secured workplace to the females so that they do not have to compromise over their skills and their future because of such reasons. Protection of women would also help in boosting the gender equality in the country and would also help in development of the nation.

Sexual harassment at workplace is addition to the violence meted out on women in day-to-day life. It is discriminatory and violative actions that abrogates the rights of women, given to them by the Constitution. Women are given right to equality that is enshrined under Article 14 and 15 of the Constitution. Also, they have been provided with right to live with dignity under article 21 of the Indian Constitution. India signed CEDAW (Convention on the Elimination of Discrimination Against Women) on July 9, 1993 to help in prevention of violence against the women. After the brutal gangrape of Bhanwari Devi, a social worker from Rajasthan in 1997, a petition was filed in the apex court of India for the first time, to enforce the fundamental rights of the working women. After the landmark case, Vishaka and Ors. Vs. State of Rajasthan, Vishaka Guidelines was enacted. Apart from this there were other acts such as- Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as POSH Act) which were enacted by the Indian law. This paper critically analysis the sexual harassment that takes place with women at the workplace and the vishaka guidelines that were setup to prevent the same.

KEYWORDS

Sexual harassment, vishaka guidelines, women rights, workplace

INTRODUCTION

Almost around fifty percent of the population of the India comprises of the women which are now visible in various sectors. The professions which were earlier considered to be only for men also witnesses the rising number of women in the same profession. This positive change in the country also faced certain horrifying and unwanted cases too relation to assault and sexual harassment usually carried by men against women. Women were considered to be an object over which mental and physical torture was done not only at home but at their workplace too. It is a problem happening worldwide, be it a developed or a developing state. The issue causes a negative impact on both men and women however, it is more prevalent in females.

Many law reforms, prohibition and prevention acts have come across the globe and various enactments have been done even by the United Nations, still the problem exists to prevail. Women, since ages, are considered to be most vulnerable group and that is why they go through various types of crimes including human trafficking, female foeticide, sexual harassment, stalking and also one of the most heinous crimes known as rape.

Sexual harassment is an unwelcome behaviour. It is not an involuntary act and sometimes occur when a consent is given to certain offensive and objectionable behaviours. It depends upon the victim subjected to the behaviour of the other person and how she perceives the same. For example- sex-oriented comment or some kind of derogatory joke. [2]

WHAT CONSTITUTES SEXUAL HARASSMENT?

There are two broad categories under which sexual harassment at workplace falls in. These categories are as follow-

Hostile work environment- it defines a workplace where the actions and behaviour of other employee disrupts the work of the victim or due to which the victim is not comfortable enough to carry out the work. The subjected person does not feel like coming to work and sometimes they eventually leave the place due to the actions of the other person.

Quid pro quo- the literal meaning of the term quid pro quo is “a favour or advantage in return something”. If a supervisor or an employer asks for a sexual favour in return of a job offer or refuses to increase the salary or denies to give it on refusal of the sexual favour, these circumstances are said to be quid pro quo.

Inappropriate physical or verbal conduct- unwanted physical touches such as, unwanted massages, squeezes etc, that makes the other person uncomfortable or verbally passing any intrusive comment about one or making sensual noises upon one’s clothes falls under inappropriate conduct which could also account to be sexual harassment.

Inappropriate digital conduct- sending explicit videos or link to such content over the social media or any other digital platform, explicit photographs of oneself to an unwilling recipient also constitutes to be a sexual harassment which takes place through the networks of the internet and is one of the major issues prevailing in today’s time. [3]

HISTORICAL BACKGROUND OF VISHAKA GUIDELINES

THE BHANWARI DEVI CASE

FACTS OF THE CASE

Bhanwari Devi, a Dalit government employee, used to spread awareness regarding hygiene and education and she also used to run campaigns relating to dowry and child marriage. During the course of her employment, she was trying to stop a child marriage taking place and was trying to save the young girl who was being forced to get married by her parents. The marriage involved certain politicians and influential people due to which Bhanwari Devi failed to stop the occurrence of the marriage. She tried to resist and also carried out a rally regarding the child marriage that was taking place.

A group of people gangraped Bhanwari Devi while she was with her husband. They attacked her out of revenge of the campaigns and rallies she organized to stop the child marriage. She tried to file criminal suit against the attackers but her complaint firstly was lodged by the police after fifty-two hours and was not taken seriously as it was against influential people.

JUDGEMENT AND AFTERMATH

As the case proceeded to Rajasthan High Court, the court acquitted all the attackers on the various grounds one of which was that a women cannot be raped in front of her husband and that a head of the panchayat cannot be indulged in such actions. Later on, the Rajasthan High Court convicted the attackers for assault and awarded them the punishment way lesser in comparison to the punishment give to a rapist.

This judgement gave a start to various rallies and protest by the general people and women safety organisations. These protestors were beaten by the police and many attempts were made to stop the people from protesting. On the other hand, people were not ready to stop and were determined to pressurize the government and other authorities to give justice to Bhanwari Devi.[4]

Vishaka and Ors. v. State of Rajasthan[5]

FACTS OF THE CASE

A collection of non-profit organisations dedicated to women’s protection filed a plea before India’s Supreme Court, asking for justice for Bhanwari Devi and, as a result, the proper penalty for the men involved in gang rape. They filed a public interest lawsuit called Vishaka, alleging that Bhanwari Devi’s fundamental rights had been infringed. They also wanted a new set of guidelines for women’s safety.

The NGOs also brought up the issue of women’s safety at work in their PIL, citing the fact that Bhanwari Devi’s employer refused to accept responsibility, despite the fact that the reason she was raped was related to the work she was obliged to do as part of her job. As a result, the PIL set out to create a new set of recommendations for women’s workplace safety.

JUDGEMENT

Sexual harassment violates the fundamental rights guaranteed by Article 14, Article 15, Article 19(1)(g), and Article 21 of the Indian Constitution, according to a three-judge bench.

The Vishaka guidelines were established by the court to protect women at work and to provide a safer working environment for women.

THE VISHAKA GUIDELINES[6]

Duty of the Employer or other responsible persons in workplaces and other institutions

It essentially defines the responsibility of the employer or other responsible persons in the workplace or other institutions to prevent or deter the commission of acts of sexual harassment and to provide procedures for the resolution, settlement, or prosecution of such acts by taking all the necessary steps.

Definitions

Sexual harassment is defined as any unwelcome sexually determined behaviour (whether directly or indirectly) that includes:

a) physical contact and advances

b) a demand or request for sexual favours

c) sexually coloured remarks

d) showing pornography

e) any other unwelcome physical verbal or non-verbal conduct of sexual nature

Preventive Steps

Sexual harassment should be avoided by all employers or those in charge of work places, whether in the public or private sector. They should take the following steps, without regard to the generality of this obligation:

A clear prohibition of sexual harassment at work, as stated above, should be announced, publicised, and widely distributed.
Government and public sector organisations should incorporate laws preventing sexual harassment in their conduct and discipline policies, as well as suitable consequences for the perpetrator.
In the case of private employers, steps should be taken to include the aforementioned prohibitions in the industrial employment (standing orders) act of 1946’s standing orders.
Appropriate work circumstances in terms of work, leisure, health, and cleanliness shall be given to ensure that there is no hostile environment toward women at work and that no employee woman has reasonable grounds to believe she is disadvantaged in her job.

Also read: CONTROL MECHANISM IN ADMINISTRATIVE LAW. AN ANALYTICAL AND THEORETICAL OVERVIEW CONCERNING EPIDEMIC DISEASE ACT OF 1897.

Criminal Proceedings

If the behaviour amounts to a specified offence under the IPC or any other law, the employer must take proper legal action by filing a complaint with the appropriate authority. It should, in particular, ensure that victims or witnesses are not traumatised or discriminated against when dealing with sexual harassment accusations.

Disciplinary Actions

Workplaces where such behaviours, as defined above, are considered to be a misconduct and does not receive support from other people at the same place, the employer should take appropriate disciplinary action in line with those rules.[7]

Complaint Mechanism

Whether or not such conduct is illegal or in violation of the employer’s service rules, an appropriate complaint procedure should be established in the employer’s organisation to address the victim’s complaint.[8]

Complaint Committee

Whether these conducts are considered to be illegal under the law or rules of the company, some type of complaint mechanism should be established in every organisation to provide both men and women a safe working environment. These committee should be headed by a woman or some NGO or any other authority which is familiar with this issue.

Worker’s Initiative

Workers should be given the freedom to raise their voice and bring up the matter of sexual harassment in work meetings and in employer-employee meetings. Following this, some serious actions should be taken by the organisation to prevent the same and help the victim too.

Awareness

Working women should be made aware of their rights and also about these guidelines made by the government for their protection.[9]

POST-VISHAKA SCENARIO IN INDIA

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 was the most significant step following the Vishaka decision. This legislation was passed in April 2013 as India’s first law addressing the protection of women at work from sexual harassment. The following are some of the act’s key features:

This Act aims to provide a safe and secure working environment for all women, regardless of their age or job status.
In India, this Act applied to both the organised and unorganised industries. All government bodies, private and public sector organisations, non-governmental organisations, commercial, vocational, educational, entertainment, industrial, financial, and other organisations, as well as hospitals, were covered by the Act.
The term “sexual harassment” was defined in this Act in accordance with the Supreme Court’s definition in the Vishaka case.
This act also included, “Presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, threat of detrimental treatment in employment, threat about current or future employment, interference with work or creating an intimidating, offensive, or hostile work environment, or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment”, in the definition of sexual harassment.
Since sexual harassment might not often occur in the primary place of employment, the Act also established the concept of a “extended workplace.” As a result, the Act defined “workplace” as any location visited by an employee as a result of or in the course of employment, including transportation supplied by the employer for the purpose of commuting to and from the workplace.
The Act mandated the formation of an Internal Complaints Committee (ICC) at each and every office or branch of a company with ten or more employees in order to offer a place for filing allegations and expedite the resolution of sexual harassment complaints.
It also called for the government to set up a local complaints committee (LCC) at the district level to examine and remedy sexual harassment accusations from the unorganised sector or from establishments where the ICC has not been formed because they have fewer than ten employees.

Apart from the above act, the Criminal Law Amendment Act, 2013 amended several provisions of the Indian Penal Code, 1860 to include several offences such as outraging a woman’s modesty, assault or use of criminal force with intent to disrobe, stalking, and voyeurism, thus creating an exclusive disclaimer to deal with the issue of sexual harassment.[10]

CONCLUSION

“A murder usually destroys the physical aspect of a human being, while harassing a woman degrades her deteriorates her reputation in a society like India.” India has developed since ages and have accommodated its female population at various sectors of the society. Be it education or workplaces, the ratio of women as to men have increased and women have started to participate actively in various fields of occupation. With this development, one more issue that needs to be attended by the lawmakers is of sexual harassment that takes place at various workplaces which not only decreases the number of working women but also affects the reputation of company and the women too. Providing a safe and secured working environment to women helps in upgrading their basic human rights of equality and living a dignified life. For this, various workshops, seminars and other awareness activities should take place in workplaces as well as in general too so that women are made aware of their rights and the remedies available to them. Also, employers as well as employees should also be made aware of the guidelines established in organizations to prevent any kind of misconduct and the punishment it could attract. The committees already working at several companies should be evaluated and regulated regularly to upgrade the working and preventing any mishap. Hence, the companies and the government should work hand in hand to combat this issue and eradicating it from the society.

[1] Calculation of Remuneration, available at https://accountlearning.blogspot.com/2011/10/calculation-of-liquidators-remuneration.html ( Visited on March 20, 2022 03.04pm)

[2] Sexual Harassment of Women at Workplace available at

http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)

[3] What Constitutes Workplace Sexual Harassment? Available at

https://leadgrowdevelop.com/what-constitutes-workplace-sexual-harassment/#:~:text=%20The%20EEOC%20outlines%20two%20main%20categories%20of,job%20advances%20or%20opportunities%3F%20Do%20they…%20More%20 ( visited on March 20, 2022)

[4] The Vishaka Guidelines: A step against Sexual Harrasment available at https://blog.ipleaders.in/vishaka-guidelines/ ( visited on March 19, 2022)

[5] Vishaka v. State of Rajsthan, available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan ( visited on March 20, 2022)

[6] Sexual harassment and Vishakha guidelines: All you need to know available at https://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html ( visited on March 20, 2022)

[7] Vishaka v. State of Rajsthan available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=“Vishakha%20guidelines”%201%20Duty%20of%20the%20Employer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html  ( visited on March 20, 2022)

[9] Vishaka v. State of Rajsthan available at

https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=%E2%80%9CVishakha%20guidelines%E2%80%9D%201%20Duty%20of%20the%20Emplo yer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[10] Sexual harassment at workplace: Developments post Vishaka Judgement available at

https://www.gktoday.in/topic/sexual-harassment-at-workplace-developments-post-vishaka-judgement/ ( visited on March 20, 2022)

Author:KASHISH BANSAL, SYMBIOSIS LAW SCHOOL, NOIDA

Editor: Kanishka Vaish, Senior Editor, LexLife India

NEED FOR THE CRIMINALISATION OF MARITAL RAPES IN INDIA

Reading time : 5 minutes

Rape is a kind of sexual assault in which sexual intercourse or other forms of sexual penetration are performed on a person without their consent. The integral part is a lack of consent and the act may be carried out through abuse of authority, physical force, or against an individual who is unable to give assent, coercion, such as someone who is unconscious or is below the legal age of consent. Marital abuse is a form of domestic violence and sexual abuse. Marital rape which is also known as spousal rape, the undesired intercourse with one’s spouse without spouse’s consent. undesired intercourse refers to any type of penetration (whether anal, vaginal, or oral) that is done against her will or without her agreement.

Despite the fact that several nations have already criminalized marital rape, India is one of 36 countries where it is still not punishable. In a landmark case in the United Kingdom, R v. R[1], a husband contested his ‘conviction for attempted rape’ on the grounds that marriage conferred irreversible permission. His argument was rejected, and the court found him guilty because the exemption to marital rape is a “legal doctrine under common law.” The court decided that the connection between the parties is irrelevant for a person to be punished for rape. Only when the woman is under the age of 15 is forced sex in marriage considered a crime under Section 375 of the Indian Penal Code (IPC). As a result, marital rape is not a crime under the IPC. This is founded on the belief that after marriage, a woman has no right to decline sex with her husband. This grants men the right to be sexually dominating over their spouses. This is a clear violation of human rights norms, and gives husbands power to rape their wives.” The underlying cause for marital rape is the misconception associated with marriage itself. In India the grassroot level of understanding marriage is quite different in sense that it’s not the mere obligation which exits between the two spouses but it’s considered to be the union of the two individuals and one of the most sacred relationships. Moreover, this ideology pertinent to marriage lefts a woman with no choice rather to submit herself which she thinks is the obligation which one has to fulfill to become a dutiful wife. As per the Indian government’s latest National Family Health Survey [2], about 30% Indian women aged 18-49 reported having experienced spousal violence. As per the data in terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.

Thus, in India, marital rape is not a crime and is solely included by the concept of domestic violence as specified by the Protection of Women from Domestic Violence Act, 2005. The Domestic Violence Act is a civil legislation that exclusively gives the woman civil remedies.

Kinds Marital Rape

Legal analysts have recognized three types of marital rape as often occurring in society[3].

Battering rapes: In battering rapes, women are subjected to both physical and sexual abuse in the relationship, and they are subjected to this violence in a variety of ways. Some are beaten during the sexual violence, or the rape may occur after a physically violent event in which the husband attempts to make amends and coerces his wife to have sex against her will. This category includes the vast majority of victims of marital rape.
Force-only rape: In force-only rape, men use just the amount of force required to persuade their wives; beating is not common in this kind of rape. Typically, the assaults occur after the partner has declined sexual intercourse.
Sadistic or obsessive rape: Other women have been subjected to what has been labelled as sadistic or obsessive rape; these assaults frequently entail torture and/or deviant sexual practices and thus are physically brutal.

Legal Position in India[4]

The IPC defines rape under sec. 375 as:

A man is considered to commit rape if, with the exceptions listed below, he has sexual intercourse with a woman under any of the six conditions listed below:

• Against her will.

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

• Without her consent.

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

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

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

Rape of a judicially separated wife was made a crime by Section 376-A of the IPC, 1860, which was introduced in 1983. It was based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, and the Law Commission of India. Thus, non-consensual intercourse with a wife between the ages of 12 and 15 years. However, the punishment is either a fine or jail for a maximum of two years, or both, which is far less severe than the sentence for rape outside of marriage. Otherwise, unless they are living apart under a decree of separation, a man is not accountable for any sexual act that he violently conducts on his wife (excluding sodomy), despite the fact that the wife may be subjected to significant sexual humiliation.

Civil Law Aspect

Committing a Marital rape in India is not a crime but partially is protected under civil law. According to the Protection of Women from Domestic Violence Act, 2005, any act, omission, or commission or conduct by the respondent that causes physical abuse, sexual abuse, verbal abuse, or psychological abuse to the aggrieved person, or threatens to do so, constitutes domestic violence; this includes physical harm, sexual harm, mental harm, or economic harm. The law defines sexual abuse as any act of a sexual nature that humiliates, degrades, or otherwise violates the dignity of woman.

As a result, marital rape is an act that violates a woman’s dignity and humiliates and abuses her. Domestic violence includes sexual intercourse without the consent of the wife. hence it provides legal recourse to a wife for marital rape. It provides legal recourse to a wife for marital rape. As a result, this Act does nothing to deter violence itself, but only provides a way to remove themselves from a potentially dangerous situation.

Constitutional Law Aspect

In India, marital rape isn’t criminalized, but it violates Indian Constitutional Articles 14 and 21. In accordance with Article 14 of the Indian Constitution, no state shall deny equality before the law to anyone within its borders or deny equal protection of the law. In spite of the Constitution’s guarantee of equality for all, Indian criminal law discriminates against women who are raped by their own husbands. In the Indian Penal Code, section 375 has been interpreted as providing an exception for women over 15 years of age that violates article 14 of the Constitution.

The Supreme Court held in Budhan Choudhary v. State of Bihar [5] that any classification under Article 14 of the Indian Constitution must pass a reasonableness test that can only be passed if the classification is rationally related to the purpose of the act.

However, Exception 2 frustrates the purpose of Section 375. The purpose of this law is to protect women and punish those who rape them. This objective cannot be served by exempting husbands from punishment. Essentially, this Exception encourages husbands to forcefully enter into sexual relations with their wives, since they are aware that their acts won’t be penalized by the law. The Exception fails to satisfy the test of reasonableness because it does not have a rational connection with the underlying objective of the Act, and violates Article 14 of the Indian Constitution. A woman’s right to privacy and sanctity is violated by acts of sexual violence, apart from being a dehumanizing act. Supreme Court confirmed the right to privacy as a constitutional right in the case of K.S. Puttuswamy (Retd.) v. Union of India.[6] Unless there are contrary rulings stating that marital association adversely affects the individual’s right to privacy, the above rulings do not make distinctions between married and unmarried women. Thus, according to Article 21 of the Constitution, rape is an interdiction of fundamental rights, regardless of the fact that the victim was married to the perpetrator.

Legality of cryptocurrency

Reading time : 8 minutes

Abstract

The revolution in the digital field has been quite significant in the past decade with the introduction of the digitalization process in every field and the field of currency has been no exception. In the era where everything is going virtual, a form of currency that is virtual has come into existence famously known as cryptocurrency. In the past few years, the growth of cryptocurrency has been astonishing, not only public but also big corporations and even countries have shown their interest in this field. The new currency may be very revolutionary but with this comes a question about how safe it is and it has been seen in the past that cryptocurrencies such as bitcoin, Ethereum, and others have been particularly been used for illegal work and also been used in availing illegal services, as the blockchain technology makes it difficult or nearly impossible for investigative agencies to track it which has been exploited by the people and also using crypto as a source of exchange and currency poses as a threat for people as it is not issued by the government which makes it even more necessary to look into the legality of these currencies without any adverse effect on people who trade in it as without working on the legal framework of how cryptocurrency would work or be accepted legally it is always going to be a risky and non-trustworthy form of currency and people might get cheated because of how vulnerable they will be without any clear answer on the legality of these currencies

Introduction

The concept of cryptocurrency was first introduced to the world in the year 2009 with the introduction of bitcoin by a group of anonymous people or an individual by the name of Satoshi Nakamoto it indented to make this currency out of government in the year 2009 with the introduction of bitcoin by a group of anonymous people or an individual by the name of Satoshi Nakamoto it indented to make this currency out of government control and to make it convenient for people to make them exchange it across the countries without any problem.

Cryptography is used in this which makes it impossible for people to counterfeit the currency which is one of the biggest problems that is faced by people as they might end up having counterfeit currency. The use of cryptocurrencies has been more in demand because it had made online transaction very easy and hassle free, also no third party is involved which makes its trade possible without any additional fees. It has been using the blockchain technology for trading on various crypto exchanges. Crypto exchanges are not the only way to acquire these currencies but it can be obtained by using Mining technique too which makes it possible for people to obtain it by mining at their own homes on their mining rig with just the cost of electricity with so much hype around the cryptocurrencies in the past few years comes a question about its trustworthiness is always there as there is no agency that regulates and also it lacks any kind of redressal system which can make traders vulnerable to theft and other kinds of frauds. Looking at the current situation of crypto market and its high boom it can be noted that it is necessary to provide clarity on the legality of virtual currency and governments all around the world need to discuss the legality of crypto as a lot of money has been invested in virtual currency in past few years and without any legal framework it is not very safe for people to invest in it. Particularly in India in the past few years a lot of intermediaries have been seen which help people easily trade in cryptos like coin DCX, Wazir X and people have been really unaware of the legality of virtual currencies and government has a very unclear stand on cryptocurrencies. In the past many such instances have happened in which people were cheated but due to lack of legal framework a solution is still to be found

Legal History of cryptocurrency in India

After the introduction of cryptocurrencies in 2009, the concept of virtual currency was not acknowledged by the government of India or the Reserve Bank of India for 4 years, and for the first time in 2013 a comment by the Reserve Bank of India was made in a press release where it was told that Virtual currency as a mode of transaction or payment was not authorized by the central bank or any other monetary authority The entities in question are said to have secured no regulatory approvals, registrations, or authorizations in order to conduct such activities. In 2017 again the Reserve Bank of India further told and cautioned people about the legal, financial and operational threats that they might be exposing themselves to and further said that Reserve Bank of India has not provided any entity with a license to trade in cryptocurrency or any existing virtual currency and people who might be dealing in them are doing it at their at own risk

Till 2017 it can be said that the dealings in virtual currency was not advised by the government but it was still legal to deal in cryptocurrencies as till this point it was never mentioned that it is illegal to deal with cryptocurrencies by any authority, so it can be said that till 2017 dealing in crypto was legal in India and just the potential risks were addressed by the government and government did not put any barrier to trade in cryptos and never mentioned that it is illegal to trade in cryptos like bitcoin or any other virtual currency.

Further in 2017 it was stated by the Reserve Bank of India said that it reiterates the statement it made in 2013 and after in the wake of growing interest of people in the virtual currency market as the valuation of a lot of virtual currencies and a huge growth initial coin offerings to public

Even after this statement, it can be assumed that no such official barrier or restriction was put on the trading of the cryptocurrency only the threats it imposed were established and addressed by the government of India. In 2018 the finance minister of India said that India does not accept cryptocurrency as a legal tender and will make sure it eliminates all the wrong practices that happen through cryptocurrencies, people misinterpreted this statement and thought that that crypto currency is illegal in India but in reality, it only talked about controlling and eliminating the illegitimate activities that were being carried out nowhere it was mentioned that it is illegal to trade in cryptocurrency.

On 5th April 2018 a circular was released by the reserve bank of India where it acknowledges the rapid change in the payment industry as printing of metallic money was getting costly and it made central banks around the world talk on the topic of cryptocurrency as if it is a viable option but with this came a concern of consumer protection, and also it increased the chances of money laundering. Citing the security risk it poses RBI said that entities that are associated with RBI shall not entertain nor provide any services to any individual or entity that deals in cryptocurrencies or any virtual currency and for the entities who are already involved in providing services of this kind should exit this within a specified period of time. From this again it can be said that no comment on its legality has been made only caution has been stated till now although RBI put a restriction on banks and other institution to trade or deal in cryptocurrencies. On January of 2020 RBI said that it has not banned the trade of cryptocurrencies but only cautioned and banned entities like banks from dealing in cryptocurrencies.

Supreme court of India in march of 2020 in its judgement turned the ban on crypto by RBI and said banning it was unconstitutional which meant that supreme court had legalized the usage of cryptocurrencies and its dealings in India.

Legal risks associated with crypto

Since cryptocurrencies are regulated by a blockchain technology and cryptography it is not possible to track or trace the people who are doing transactions it keeps their identity anonymous which leads to a lot of illegal activities like purchase of drugs, weapons and other contrabands and since no one can trace the people who are using it to purchase such commodities, drug dealers have been using crypto as an exchange medium for selling drugs and a huge increase in buying of drugs such as fentanyl, cocaine etc. Has been seen in past few years in US and other countries.
Financial frauds and data theft gas been one of the biggest risks associated with cryptocurrencies it is estimated that over 14 billion dollars were stolen in cryptocurrencies in 2021 alone and since laws don’t address cryptocurrency and failure to have any redressal mechanism makes it impossible for people to do anything about it.

Since the world has gone virtual data theft has been one of the biggest problems even though cryptocurrencies claim to keep your data safe and keep anonymity but data pf over a million people including emails and their ledgers have been stolen which puts privacy of people and safety of their data in question

Money laundering has been a serious concern for the law enforcement agencies as in

2021 8.6 billion dollars were laundered which was also 30 percent more than in 2020 since it is difficult to track owners of the crypto it provides a blanket on the criminals who do these things

Current scenario in India

While presenting the budget for the financial year 2022-23 finance minister Nirmala Sitaraman said that any income that is made from trade of cryptocurrencies or exchange of any digital assets will be taxed at 30 percent. Further it was mentioned that consultation on what is legal in regards with crypto are underway. It was specified by finance secretary T.V Somnathan that it will never become a legal tender however, government of India and reserve bank has proposed and planned to launch its own digital currency by the year 2024 which will use the block chain technology and would also be a legal tender and regulated by the Reserve Bank of India and it will be considered as a legal tender and other virtual currency like Ethereum, bitcoin will not be considered legal tender however it was also said by Somnathan that people can by digital assets such as cryptocurrency but it would not be authorized or considered legal tender by government of India or RBI. In present times it is not illegal to trade in cryptocurrencies but at the same time it is also not a legal tender further he said that if people who are investing in these currencies

may face loss and government would not be responsible for such things as it is already stated that it is not authorized by the government and people investing in it might do it at their own risk.

Somnathan said that it is not illegal to trade in cryptocurrencies.

From 1st of April 2022, it is decided that a tax of 30 percent on trade of cryptocurrencies or on exchange of any digital assets it was mentioned that it is the sovereign right to charge tax on it also the finance secretary gave reasoning behind the imposition of 30 percent tax by saying that

there already was a tax of 30 percent on speculative transaction and crypto is considered as a speculative transaction hence 30 percent tax on trading of crypto is justified.

International scenario

Recently EL Salvador became one of the first country to declare cryptocurrency as legal tender and leaglised the use of cryptocurrency in all ways just like any normal currency besides dollar government of Salvador has introduced Chivo wallet which can convert crypto in dollars if a vendor doesn’t accept crypto payments. To increase the public use of cryptocurrency it is also planning to incentivize the people who use cryptocurrency as a payment method by giving them an incentive of equivalent to 30 dollars in their wallets
Switzerland has also shown a progressive stance towards adopting virtual currency and it

is legal to trade in crypto in Switzerland and also in some situations it is also accepted as mode of payment. Swiss consider cryptocurrencies to be assets and charges tax on it.in 2020 blockchain act was passed by Swiss parliament which defined the legalities of crypto exchanges in the country and the country provides license to operate crypto exchange in the country. Switzerland has made it clear that it would keep working in adapting regulations for cryptocurrencies while controlling the illegal use of cryptocurrency

United states do not consider cryptocurrencies to be a legal tender but at the same time trading in cryptocurrency is not illegal in USA even the crypto exchanges are legal in the country and they have to register with Financial Crimes Enforcement Network and it is under regulation of Bank Secrecy Act it is also taxed by the authorities and considered to be securities by US SEC and all securities laws are applied to the crypto wallets and the exchanges
China banned the use of cryptocurrencies in its region and also banned the crypto exchanges that had existed in the country in June 2021 China put a ban on domestic crypto mining and exchanges. Exchanges are illegal in the country and it is uncertain that in future if it will undo its ban on cryptocurrency

Australia declared that cryptocurrencies will be illegal in the country from 2017 onwards and specifically mentioned that bitcoins and other currencies with similar nature would be treated as a property under capital gains tax further it also legalized crypto exchanges which requires it to be registered with the concerned authorities

Japan is also one of the countries where trade in cryptocurrencies is considered to be legal and crypto exchanges are considered to be legal while virtual assets are counted as property it is considered as most progressive in terms with crypto regulations. The exchanges need to be registered with its financial services agencies and it is also taxed by the government of Japan

Conclusion

There is still a very long way to go in the field of virtual assets and currencies. It can be said that cryptocurrencies in India are currently operating in a legal grey area. While the government continues to discourage people to invest in such type of currencies by highlighting the risk it poses but also at the same time it is not illegal to invest in virtual currencies and no such ban has been issued by the government of India and any future regulation is awaited, currently it is taxed at 30 percent rate of interest which further explains that it is not illegal to trade in crypto at this moment. As the environment around the world is changing the Reserve Bank of India is planning to bring its own digital currency by 2023 which will be one step further in the field of digital currencies. It is expected by the government to look at the scenario all around the world and also bring laws to regulate the currency as it would keep the illegal activities that happen from these currencies also in check. In conclusion it is observed that cryptocurrencies are not illegal and it is not a crime to have or trade in it even the agencies have just cautioned the users by telling the risks and not done anything that criminalizes it. There is still a lot unclear in regards with future its legality until government clears its stand on this issue and make relevant laws for it or regulations for it, currently it is not illegal to invest in crypto is what can be said but at the same time it is not a legal tender

Literature review

1 https://www.livemint.com/news/india/is-cryptocurrency-legal-tender-in-india-what-we-know-so-far-10-points-11643806115501.html 2 Turpin, J. B. (2014). Bitcoin: The Economic Case for a Global, Virtual Currency Operating in an Unexplored Legal Framework. Indiana Journal of Global Legal Studies, 21(1), 335–368. https://doi.org/10.2979/indjglolegstu.21.1.335 3 https://freemanlaw.com/legal-issues-surrounding-cryptocurrency/

4 https://www.tookitaki.ai/news-views/moneylaundering-via-cryptocurrencies/ 5 https://complyadvantage.com/insights/cryptocurrency-

regulations-around-world/ 6 https://www.livemint.com/news/world/el-salvador-becomes-first-country-to-use-bitcoin-as-legal-tender- 11631144769412.html 8 https://coinsutra.com/future-of-bitcoin-cryptocurrency-india/ 9

https://www.investopedia.com/terms/c/cryptocurrency.asp

Author: Anand Priy Singh, NMIMS Hyderabad

Editor: Kanishka Vaish, Senior Editor, LexLife India

RAISING THE LEGAL AGE OF MARRIAGE: AN ANALYSIS

Reading time : 8 minutes

INTRODUCTION

On December 16, 2021, the Union cabinet approved the proposal of increasing the minimum age for a woman to marry be 21 years[1]. This change will be effective upon the amendment of the Prevention of Child Marriage Act, 2006. The Law commission of India in 2008 suggested the legal age of marriage to be 18 for the both the parties.[2] Presently, the minimum age to marry is 18 for the bride and 21 for the groom.[3]

MOTIVES BEHIND THE AMENDMENT

Referring to the statement of Objects and Reasons of the Prohibition of Child Marriage (Amendment) Bill, 2021, we find the following points as the guiding factors for the Central Government to introduce such a change:

• To bring all round welfare of women (physical, mental and reproductive health), the age of marriage needs to be uniform. Currently, the Christian, Parsi, Muslim, Hindu personal laws do not provide a uniform age for women.

• To secure the constitutional mandate of gender equality is marriageable age.

• To reduce the dependence of women on men due to early marriages.

• To lower maternal mortality rate, infant mortality rate, teenage pregnancies and improve nutritional levels and sex ratio at birth.

• To achieve sustainable development goals and principles under Convention on the Elimination of All Forms of Discrimination against Women.

• To amend the Prohibition of Child Marriage Act, 2006 and reinforce its overriding application on all other laws, custom, usage or practice governing the parties regarding marriage.

Statistics: According to the National Family Health Survey 4 (NFHS 4), 7.9% of women aged 15-19 years, were already mothers or pregnant at the time of the survey, with the prevalence higher in rural areas (9.2%) compared to urban areas (5%). The maternal mortality rate stands at 113 out of 100,000 live births, [2016-2018].[4] Infant Mortality Rate figures show that there occur 28.771 deaths per 1000 live births, which is a 3.61% decline from 2020. The Sex Ratio in India stands at 1020 females per 1000 males which is an improvement.[5]

Research on child marriage from the first decade of the 2000s was largely, often mistakenly, interpreted to suggest that child brides—girls who marry under the age of 18 years—faced a higher vulnerability to and higher rates of HIV acquisition than girls and women who married later. Once married, girls are likely to feel, and in many cases are, powerless to refuse sex. They are likely to find it difficult to insist on condom use by their husbands, who commonly are older and more sexually experienced, making the girls especially vulnerable to HIV and other sexually transmitted infections. It can be amount to regular exposure to domestic or sexual violence, and a pathway to commercial exploitation.[6]

Married girls are often pressurized to become pregnant immediately or soon after marriage, although they are still children themselves and unaware about sex or reproduction. An early pregnancy before a girl’s body is fully mature is a major risk to both mother and baby. Complications of pregnancy and childbirth are the main causes of death among adolescent girls ages 15-19 years old in developing countries. Among the disabilities associated with early childbirth is obstetric fistula, an injury which leaves girls in constant pain, vulnerable to infection, incontinent, and often shunned by their husbands, families and communities.[7]

ANALYSING THE EFFECTIVENESS OF PROHIBITION OF CHILD MARRIAGE ACT (PCMA), 2006

In 2006, the overall incidence of child marriage, i.e., marriage before 18 years of age, was 44.5%. It was 52.5% in rural areas and 28.1% in urban areas. The prohibition of child marriage act (PCMA), 2006 completes 16 years and we shall delve into its impact. A survey carried out by UNICEF in 2018 states that 7% of girl children marry by the age of 15 and 27% marry before the age of 18. The prevalence of child marriage is confirmed by this survey in as late as 69 years since the commencement of the Constitution.

The existing law for prohibition of child marriage (Act of 2006) was passed as an amendment to the Act of 1978 and it increased the age of marriage from 15 to 18 for brides and from 18 to 21 for bridegrooms. A significant reduction in the instances of child marriage was observed after this amendment but the figures have been stagnant in the past 5 years. In 2020, only 785 cases were booked under the PCMA Act, even though data suggests that one in four women in India is still getting married under the age of 18.[8] Clearly, the law is not being effectively used to stop or reduce the number of early marriages from occurring. The PCMA was largely used to criminalise self-arranged marriages, instead of targeting coerced/forced marriages of underage girls.

It increased the levels of punishment handed out to offenders to a fine of one lakh rupees and an imprisonment term of two years. It also introduced Child Marriage Prohibition Officers who were officials entrusted with the task of preventing child marriage and ensuring that the provisions of the Act were not violated. The Act also allowed ex-parte interim injunctions to be issued by the Magistrates so as to stop child marriages. Undoubtedly, these provisions have a positive attitude towards reducing child marriages. But some serious loopholes have been discovered. One such loophole is that PCMA, 2006 does not automatically render child marriages void but makes it voidable at the option of the concerned party. It is not a sufficient remedy for a girl child to avoid marriage after attaining the age of 18. There is a serious possibility of permanent damage to psychological and physical faculties of the child as a result of sexual exploitation.

The amendment does not propose any change in the implementation process. The present Act failed to enforce the legal age of marriage as 18, this casts a doubt on the amendment as well. The status of marriage will remain voidable. Any child conceived or born of such wedlock shall be deemed to be a legitimate child for all purposes.

WHAT TO EXPECT FROM THIS AMENDMENT?

The legal age of women to marry is proposed to be raised to 21 years on the recommendation of the task force led by Jaya Jaitly. She remarked that the rationale behind such a change is not to control India’s population as the fertility rate is already declining. The real reason is to truly empower women and achieve gender equality. The emphasis would be on access to education and livelihood.[9]

“We saw that it is there except in the law on marriage. When it comes to marriage, you put a girl in a disadvantage in terms of accessing opportunities because the law is already embedding a message to her that you need to do that only till you are 18 because after that you have another job to do. So that itself was a very powerful motivating factor for us (to suggest the recommendation).”[10]

NEGATIVE SIDE OF RAISING THE LEGAL AGE OF MARRIAGE/ DOES IT MEAN TRUE EMPOWERMENT?

Marriage in India is subject to various social norms and customs which are unique to each community. Likewise, early marriage is the most prevalent custom. It is believed that a woman’s honour would be protected only if she is married and she will be safe from unwanted attention from other men or from sexual violence for that matter. A lower dowry and lesser chances of elopement are assured in early marriages.

One cannot expect these deep-rooted norms to relax just by increasing the legal age of marriage for women. Also, true empowerment of women will be achieved when other important aspects of a woman’s life are juxtaposed with this change. We shall now analyse the following demerits of increasing the age of marriage from 18 to 21 years for women.

1. Anomaly in the declining figures of Child Marriage

While child marriage has declined, it has been marginal: from 27% in 2015-16 to 23% in 2019-20, according to NFHS 5. The decrease was, however, significant in NFHS 4, from 47% in NFHS 3. Experts believe that limited access to higher education for girls is contributing to the early marriages.

2. Poor quality and limited access to education

Due to poor quality of education, lack of infrastructure like toilets, prevalence of sexual harassment, poverty, girls end up dropping out of schools. According to NFHS-4 the median age at first marriage for women increases from 17.2 years for women with no schooling to 22.7 years for women with 12 or more years of schooling[11]. According to The Tribune, women’s education could lead up to 60% fewer women getting pregnant under the age of 17.[12]

Kalpana Kannabiran, Sujit Kumar Mishra, and S Surapa Raju recognise that girls’ access to education has long been curtailed because of an insistence on marriage, primarily before they turn 18.[13] To investigate the relationship between marriage and education, they conducted a comprehensive quantitative and qualitative study in Telangana and Andhra Pradesh. One key finding is that girls who stayed in school for a longer period of time were likely to marry at a later age. They also found that education improved their knowledge about laws, including those on marriage and rights. A diversified and inclusive National Curriculum Framework is needed to cater to the modern needs of education. It seems that vocational courses for women are still traditional like tailoring, typing etc., which makes them ready for ill-paid jobs in the unorganised sector. This will only serve to heighten inequalities by caste, class and gender, by further restricting the access of poor girls, Dalits and other marginal groups to higher education, and decreasing their representation at this level.[14]

3. Age of majority is 18 years.

According to the Majority Act, 1875, the age at which a person attains majority is 18 years.[15] This is the age at which we can cast our vote, get a driving license, purchase property, open a bank account. It is also the age where one can give free consent for sexual activity.[16]

An absolute ban on marriages below the age of 21 will lead to more cases of elopement and criminalisation of love marriages as well as inter caste marriages. It just enforces the patriarchal control over a young woman’s life.

Also read: RIGHT TO BE FORGOTTEN: A REMEDY TO CYBERBULLYING

4. An attempt to divert the citizens from the failed efforts of the Government.

In 2020-21, the central government employed 3.31 million people. This was lower than the 3.33 million people employed in 2013-14 or the 3.32 million employed in 2012-13. The central government employment had decreased to 3.28 million in 2017-18[17]. It has improved slightly since then but, it is still lower than it was seven years ago.

The government seems less inclined to spend that it can. During April-November 2021, while tax collections rose by 65% and y-o-y and non-tax collections increased 80% y-o-y, central government expenses increased by only 9%.[18] Evidently, the government is unwilling to spend at a rate that matched its revenue growth rate. spending on schemes is not enough. Spending on more toilets, is pointless if the government cannot assure sanitation service.

CHANGES NEEDED FOR EFFECTIVE IMPLEMENTATION

For the better implementation of PCM Amendment Bill, 2021, the following changes/amendments are required-

According to the Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954 and the Indian Christian Marriage Act, 1872, the age of marriage is 18 for females and 21 for males. No personal law of any community in India declares child marriage as invalid. Only the Special Marriage Act of 1954 declares child marriage to be void. under the Hindu Marriage Act, marriage of a minor is valid. Muslim Law recognises the onset of puberty as the age of marriage. a minor can get married if contracted by his legal guardian.[19] The only sanction prescribed against such marriages was noticed to be a punishment prescribed under Section 18 of the said Act which was to the extent of 15 days and a fine of Rs.1,000/-. With registration not being compulsory, one cannot expect to get the real number of child marriage cases. Hence, for PCMA Amendment Bill to be effective, there needs to be an amendment in the Personal Laws. The State needs to ensure that there will not be any loopholes this time.

CASE LAWS

Lajja Devi v. State and Ors.[20]

Prohibition of child marriage act is secular in nature and overrides all barriers of personal laws. Thus, whatever be personal laws, child marriages are prohibited under this Act.

Hardev Singh v. Harpreet Kaur and Ors.[21]

According to the literal interpretation of Section 9, it states that if a male is below the age group of 18-21 years and if the female is above 18 years, and they contract marriage, the adult female will not be punished and the male who is a child himself (below 21 years of age) will be punished as per Section 9 of the Prohibition of Child Marriage Act, 2006. The Court observed that the above interpretation is against the object of the Act as borne out in its legislative history.

This Act was passed with the motive to provide protection to child brides in particular. It was also noted that child marriages take place where husbands are much older than the girl child thereby hampering their development. The Court also stated that it is essential that Section 9 of Prohibition of Child Marriage Act, 2006 should be interpreted in the backdrop of the gender discrimination and violence against females.

Thus, Supreme Court inferred that the reason behind punishing male adults who contract child marriage is to protect minor female children. The Act nowhere conveys its intention to punish a male aged between 18-21 years contracting a marriage with female adults. It provides recourse to the male who is a child to get the marriage annulled under Section 3 of the Prohibition of Child Marriage Act, 2006. The Court in conveying the same resorted to the marginal note provided under Section 9 “male adult above 18 years of age marrying a child”.

Independent Thought Co. v. Union of India[22]

The petitioner approached the Supreme Court of India by filing a writ petition under article 32 of the Constitution to emphasize the violation of the rights of the young girls who are married before they attain the age of 18 years. The petitioner contended that Exception 2 to section 375 of the Indian Penal Code, 1860 is violative of Articles 14, 15 and 21 of the constitution. Exception 2 states that if a man has sexual intercourse with his wife who is above 15 years old and below the age of 18 years with or without her consent, it will not be considered as Rape.

The court finally struck down Exception 2 to Section 375 of IPC which gave immunity to the husband from the charges of rape and have sexual intercourse with her wife with or without her consent being that the wife is above 15 years of age, but the court read down this exception and now it will illegal if a husband has sexual intercourse with her wife who is above 15 years of age. The Court observed that the non-consensual, sexual acts committed by a husband against his underage wife are punishable under any other laws, even to the same extent as rape under the IPC[23].

Saraswati Kumar v. Lokesh Kumar[24]

The petitioner was a minor aged 13 years seeking annulment of her marriage under Section 3 of the PCMA, 2006. The marriage was solemnised when she was a minor and she was forcefully taken away from the custody of her parents. The petition for annulment was filed by her represented by her father in the family Court, Bangalore. Upon receiving notice from the Court, the respondent appeared and stated that he had no objection to the annulment being allowed. The Hon’ble Court, after multiple detailed hearings, passed a decree holding the child marriage to be null and void as per Section 3 of the PCMA and Section 5(iii) of the Hindu Marriage Act, 1955.

CONCLUSION

Child marriage has existed in developing countries since the very inception of the institution of marriage. In India, various communities have their unique customs and traditions but the most common practice is that of early marriage. The first attempt at curbing child marriage was the enactment of the Child Marriage Restraint Act, 1929 which increased the legal age of marriage. It was replaced by the Prohibition of Child Marriage Act, 2006. In 2021, the Prevention of Child Marriage (Amendment) Bill, 2021 was introduced in the Parliament with the view to increase the age of marriage for women to be 21. This amendment, if passed, will have overriding effect on the personal Laws. In my opinion, for the PCM Amendment to be effective, all the personal laws need to be amended as well. But it is obvious that the State will face a tremendous challenge from all the religious communities. Simultaneously, women’s access to higher education, jobs, unconventional vocational courses, health care and sexual awareness require immense development by the State. It has to be ensured that this Amendment will not be used to criminalize self-arranged marriages but forced ones. On one hand, it casts reasonable doubt on the age of consent with is 18 years for all. On the other hand, the number of child marriages is appalling and needs to be curbed. Hence, a careful analysis reveals a whole lot of contradictory questions which the Legislature and the Judiciary will face while hearing cases.

[1] The Prohibition of Child Marriage (Amendment) Bill, 2021 (Bill No. 163 of 2021).

[2] Law Commission of India, “205^th Report on Proposal To Amend the Prohibition of Child Marriage Act, 2006 and Other Allied laws” (February, 2008).

[3] The Prohibition of Child Marriage Act, 2006 (Act No. 6 of 2007).

[4] Government of India, “National family Health Survey-5” (Ministry of Health and Family Welfare, 2019-21).

[5] Ibid.

[6] Suzanne Petroni and Others, “On Understanding the Relationships Between HIV and Child Marriage: Conclusions from an Expert Consultation” 64 Journal of Adolescent Health 694-696 (2019).

[7] Ibid.

[8] National Crime Records Bureau, “Report on Crime in India, 2020” (2020).

[9] Sangeeta Barooah Pisharoty, “We Were Progressive In Our Thinking: Jaya Jaitly takes on Women’s marriage Age Move Criticisms”, The Wire, 18.12.2021, available at <https://thewire.in/women/we-were-progressive-in-our-thinking-jaya-jaitly-takes-on-womens-marriage-age-move-criticisms> (18.02.2022)

[10] Ibid.

[11] 5 Reasons Changing the Minimum Age of Marriage is a Bad Move, India, available at: https://www.oxfamindia.org/blog/5-reasons-changing-minimum-age-marriage-bad-move (last visited on February 18, 2022).

[12] Women’s Education in India: What you Need to Know, United States of America, available at: https://borgenproject.org/womens-education-in-india/#:~:text=Having%20equal%20access%20to%20education%20is%20crucial%20to%20alleviating%20poverty.&text=According%20to%20The%20Tribune%2C%20women’s,due%20to%20increased%20career%20avenues (last visited on February 18, 2022).

[13] Kalpana Kannabiran, Sujit Kumar Mishra, S. Surapa Raju, “Investigating the Causes for Low female Age at marriage” 52 Economic and Political Weekly (2017).

[14] Ibid.

[15] The Majority Act, 1875 (Act 9 of 1875), s. 3.

[16] The Protection Of Children from Sexual Offences Act, 2012 (Act 32 of 2012).

[17] Employment and the Government, India, available at https://www.cmie.com/kommon/bin/sr.php?kall=warticle&dt=20220131131123&msec=536 last visited on February 12, 2022).

[18] Id. at 4.

[19] Dr. Paras Diwan and Peeyushi Diwan, Family Law (Allahabad law Agency, Faridabad, 2018).

[20] 2012 Cri.LJ 3458

[21] AIR 2020 SC 37

[22] AIR 2017 SC 4904

[23] The Protection Of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s.6.

[24] 2018

Author: Kusumita Banerjee, Department of Law, University of Calcutta (Hazra Campus)

Editor: Kanishka Vaish, Senior Editor, LexLife India

SKIN TO SKIN CONTACT: END TO THE CONTROVERSY

Reading time : 6 minutes

If a person, say, Mr. A, slaps Mr. B with gloves on his hand, will it not be considered as an assault? This might be a weird question to answer, but a very similar and eerie judgment was given by the Bombay High Court, which, however, has been overruled by the decision of the Supreme Court now, and it became one of the landmark judgments of the year 2021.

This article talks about the judgment that was given by the Bombay High Court, why it received criticism of this amount, and what did the Supreme Court held to make this wrong a right. This article will be divided into three parts for this purpose, the very first one will talk about the high court’s decision, the second part will deal with the decision of the Supreme Court and the last part will be of comparative analysis of these two judgments.

“BOMBAY HIGH COURT’S DECISION”

The controversy started with the case of Satish Ragade v. The State of Maharashtra[1], the judgment, in this case, was given by the Bombay High Court’s Nagpur Bench, comprising of Justice Pushpa Ganediwala.

The facts of this case go as follows:

A complaint was made at a police station by the mother of the victim (twelve years old girl), in the year 2020, stating that a man named Satish Ragade in the name of giving her daughter guava, took her to his house and groped her breast through her clothes, and after that also attempted to take off her Salwar. The FIR was lodged by the police officer for the offenses that are punishable under the Indian Penal Code, 1860 (hereinafter IPC) and The Protection of Child from Sexual Offences Act 2012, (hereinafter POCSO) in the special court of Nagpur the charge sheet was filed.

The said special court found the appellant guilty and sentenced him to three years imprisonment for the offenses that are punishable in section 8 of the POCSO Act and sections 354, 363, 342 of the IPC. The appellant filed an appeal in the High Court of Bombay against this order of the Special Court.

Now, the issue before the High Court of Bombay was to decide, “whether the accused is liable to be punished under both the POCSO Act (Section 8) and IPC (sections 354, 342, 363)?

It was held by the High Court that because the groping that has been done by the appellant, was through the minor’s clothes and there was no skin-to-skin contact, it does not fall under the definition of ‘sexual harassment in the POCSO Act under section 7, and hence, the appellant will not be punished as per POCSO Act but only as per the section 354 of IPC, that talks about the outraging of women’s modesty, and at the same time also reduced the sentence of the appellant.

This judgment was setting a very dangerous precedent, and at the same time, it gave a very narrow interpretation to the definition of sexual assault, under the POCSO Act, by stating that, for any offense to fall under the category of sexual assault in this act, there must exist a skin-to-skin contact with the victim, this interpretation has been the very reason why this judgment received such serious backlash from the activists of child rights civil society members. They stated that this decision given by the High Court is unacceptable and obnoxious at the same time. It was also said that this judgment is especially flawed because it deals with children, who on many occasions can’t protect their selves.

Every year approximately ten thousand cases are reported related to sexual abuse of children, India is a country that has a major problem of ‘child sexual abuse’, and in such conditions, this judgment automatically increases the risk of child exploitation.

Hence, the National Commission of Women and the Attorney General for India filed an appeal before the Supreme Court of India Challenging this order of the Bombay High Court.

“JUDGMENT OF SUPREME COURT OF INDIA”

In the case of Attorney General of India v. Satish and Anr.,[2] the Attorney General of India, State of Maharashtra, National Commission for Women, and the appellant filed four appeals before the Supreme Court of India, against the decision given by the Bombay High Court (in Satish Ragade v. the State of Maharashtra), the coram of this case consisted of Justice Bela M. Trivedi, Justice U.U. Lalit, Justice S. Ravindra Bhat.

The issue that was brought before the Supreme Court was related to the interpretation of the POCSO Act, 2012, Section 7.

Supreme Court of India overruled the judgment given by the Bombay High Court, and referred to the dictionary, meaning of the terms ‘physical’, ‘contact’ and ‘touch’, which means ‘of or relating to the body’, ‘the condition or state of touching, or the act of touching’, and ‘the sense that enables one to be aware of things and what it is like when you put your hands and fingers on them’, respectively.

Hence, the court held “that after taking into consideration the meaning of physical contact and touch, both have been used interchangeably by the legislature under section 7, hence, ‘the act of touching the sexual part of the body or any other act involving physical contact, if done with sexual intent would amount to sexual assault within the meaning of section 7 of POCSO Act, 2012.”

Justice Bhat, although completely agreeing with the judgment given by the other justices in this case, briefly separated his opinion and agreed with the judgment given by the Bombay High Court, he said that “the interpretation of section 7 of the POCSO Act by the high court would not merely limit the operation of the law but tend to subvert its intention.”

He further observed, “It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

As per his view, the flaw in the reasoning of the High Court was that it assumed that section 7 of the Protection of Children from Sexual Offences Act, 2012 does not cover the concept of indirect touch in it or it can also be said that it assumed that the indirect touch is no touch at all. While clarifying this reasoning he said that this section of the Act is meant to cover and covers both kinds of touch the direct one as well as the indirect one.”

The court also stated that “the reason behind the judgment of the High Court does legitimize, but insensitively trivializes an entire amount of unacceptable behaviour which then undermines the autonomy and dignity of the child, by the way of unwanted intrusions.”

This judgment of the Supreme Court was a unanimous one, and the court in clear words said that for an offense to fall under the category of sexual assault under sections 7 and 8 of the POCSO Act, the existence of sexual intent behind such action is necessary and not the skin-to-skin touch.

“RECENT DEVELOPMENT”

In a very recent case of Aparna Bhat v. State of Madhya Pradesh[3], Supreme Court of India quashed the Madhya Pradesh High Court’s condition for bail.

In this case, the complainant’s neighbour (the accused in this case) went to her house, grabbed her hand, and attempted to sexually harass her, allegedly. The complainant lodged a complaint against the accused with the police for offenses that are punishable under sections 452, 354A, 323, and 506 of IPC. The investigation took place, after which filing of the charge sheet was done.

Also read: ONE SUN ONE WORLD ONE GRID – GO GREEN INITIATIVE

The accused on the other hand applied for anticipatory bail under section 438 of the Code of Criminal Procedure. 1973. High court while considering the application for the anticipatory bail stated that bail will be awarded on fulfilment of a condition that the accused shall with his wife go to the complainant’s house, with a Rakhi and sweets, and request her (complainant) to tie the thread on his hand and promise to protect her the best way he can.

A petition was filed by Advocate Aparna Bhat against this order of the Madhya Pradesh High Court, questioning the condition that the court has imposed on the accused, how the society will be impacted by it, and if it is acceptable or not.

The issues before the court in this case were:

In the cases of sexual harassment can such compromise be made?
What guidelines must be considered while the bails or anticipatory bails are granted by the court?

The Supreme Court of India while setting aside the condition that has been put forth by the Madhya Pradesh High Court for the grant of anticipatory bail (for the accused to request the complainant to tie Rakhi on his hand). The court while giving the judgment stressed the fact that such a liberal or soft approach must not be adopted by the courts, “which would be in the realm of a sanctuary of errors.”

Supreme Court also laid down a few guidelines that are to be followed whenever any case related to sexual crimes comes before the courts, those are as follows:

The court has to keep in mind that while the case of sexual crime is pending before it, under no condition there shall be any contact between the victim and the accused as bail’s condition.
Bail must be as per the provisions of CrPC and the order of the court shall not reflect notions of patriarchy against women
To suggest that the accused and victim should get married must not be done by the court
The court shall not give judgments on any biases or stereotypes.
Court also made it mandatory to include a module as a part of every judge’s ‘fundamental training’, to make sure that while hearing cases related to sexual crimes, they eliminate misogynist mentality
Supreme Court of India also directed the Bar Council of India to incorporate “gender sensitization” in the course of LL. B and also a compulsory topic in the syllabus of the All India Bar Examination.

Directing the victim to tie Rakhi on the hand of her harasser will be more traumatic to her than anything else, making the victim go through such trauma not once, but twice, will not help in achieving the justice, that the Constitution of India guarantees to provide.

Bringing the concept of gender sensitization in the course of law at an early stage will further help in avoiding such judgments which are based on biasness, understanding the need of different genders will help the future judges in making broad-minded judgments, as well.

This judgment of the Supreme Court threw light on the most important matter that is, gender sensitization. The main cause behind the discrimination among genders is the patriarchal mindset that remains instilled in the mind of the society, with such a mindset a case related to sexual abuse can never be judged justly.

Often it has been seen that while a case is pending before the court in India related to the sexual abuse, the stereotypical questions like, what kind of clothes were victim wearing, at what time she was out of her house, et cetera are raised, what these questions only results in is victim-blaming, which is another issue in this country, a female has been harassed sexually, and instead of supporting her we ask her why she was out so late, why was she wearing tight clothes, with whom was she out when the crime happened, all of this doesn’t help in reaching to a just decision but a judgment based on stereotypes, or biasness.

Hence, this judgment of the Supreme Court is a game-changer and must be followed in all circumstances.

“OPINION AND CONCLUSION”

About the rule of interpretation, the Supreme Court of India has held in the case of Maharashtra State Co-op. Bank Ltd. V. Assistant P.F. Commr. &Anr[4], that, “it is vital for the courts of the country to provide with a calculated interpretation to the provisions while keeping in view the Articles 39 and 15 of the Indian Constitution. However, courts cannot interpret the provisions in such a way that it creates confusion or defeats the purpose of the legislation.”

Similarly in another case of Southern Electricity Supply Co. of Orissa Ltd v. Sri Seetaram Rice Mill[5], the Supreme Court of the country held that “the rule of interpretation must be effectively applied on the provisions of the present type. It should be kept in mind that such interpretation shall not be accepted which frustrates the law itself in the provisions.

When a case[6] came before the Supreme Court of India where it has to deal with the interpretations of some provisions of the Protection of Children from Sexual Offences Act, 2012, it held that “whenever a humane or social welfare legislation is interpreted, the interpreter must be guided by the content, statute’s context, and colour”.

As per my opinion of the interpretation that was given by the Bombay high court in the case of Satish Ragade if accepted, it will render various acts of sexual abuse out of the coverage of the Protection of Children from Sexual Offences Act, 2012. Say, Mr. A, with sexual intent, undresses a child, while wearing gloves on his hands, and touches the child’s naked body, as per the interpretation given by the high court this act will not be considered as sexual assault because, there has been no skin-to-skin contact, or no physical contact with the victim’s person, therefore, it will fall out of the ambit of the POCSO Act, 2012, hence letting the offender roam free or with lesser punishment than what he/she deserves.

If the High Court’s interpretation were to be allowed, not only the POCSO Act but IPC would also have been affected. Section 354 A of the code talks about sexual harassment and the punishment for the same, this section also uses the term physical contact, now following the High Court’s interpretation for the terms physical contact or touch, will automatically harm the intent with which this amendment was brought in the code.

The very concept of “sexual assault” of a child, doesn’t have anything to do with skin-to-skin contact between the assaulter and the victim. Presuming that a child can never be abused by a person when he/she is fully clothed, only means to remain oblivious of the obvious truth. This actually sums up to downplaying such a serious crime that has become a threat today.

Hence, the interpretation that must be given to the term physical contact/touch must be such that it does not defeat the intent of the legislator, but such that further such purpose of the Act, itself.

[1] Criminal Appeal No. 161 of 2020

[2] Criminal Appeal No. 1410/2021

[3] Criminal Appeal No. 329/2021

[4] Civil Appeal No. 6894/2009

[5] Civil Appeal No. 8859/2011

[6] Eera v. State, Criminal Appeal No.12171219 of 2017

Author: Vaishnavi Vats, Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan

Editor: Kanishka Vaish, Senior Editor, LexLife India

Identity theft in the internet

Reading time: 8 minutes

TABLE OF CONTENTS

INTRODUCTION ………………………………..

How Does Identity Theft Happen?:…………………….

How to tell if your identity has been stolen ………………………..

Reporting identity theft…………………

Identity protection by organizations………………….

Identity theft insurance……………………………

What’s The Department of Justice Doing About Identity Theft and Fraud?……………………

Penalties for identity theft………………………

CONCLUSION…………………………..

BIBLIOGRAPHY………………………………

Introduction

Identity theft, is a crime of opportunity basically done by impersonating a victim to obtain valuable things such as credit cards, loans and other valuable items in name of the victim than theirs. It occurs when ones personal information is available to the public, or important mails are left unattended or unsupervised. Identity Theft can occur as casually as on such Social Networking sites like Orkut and Face book which encourages one to reveal ones Personal Information in order to have a so called Celebrity Status, but anyone who hates your guts can tarnish your personal information and can ruin your public image Identity. The stolen information can be used to run up debt purchasing credit, goods and services in the name of the victim or to provide the thief with false credentials. In rare cases, an imposter might provide false identification to police, creating a criminal record or leaving outstanding arrest warrants for the person whose identity has been stolen. While identity theft can happen to anyone, there are some things you can do to reduce your risk. If you think someone is using your personal information to open accounts, file taxes. Determining the link between data breaches and identity theft is challenging, primarily because identity theft victims often do not know how their personal information was obtained. According to a report done for the FTC, identity theft is not always detectable by the individual victims.[6] Identity fraud is often but not necessarily the consequence of identity theft. Someone can steal or misappropriate personal information without then committing identity theft using the information about every person, such as when a major data breach occurs. A US Government Accountability Office study determined that “most breaches have not resulted in detected incidents of identity theft”. There are several identify theft protection services that help people avoid and mitigate the effects of identity theft. Typically, such services provide information helping people to safeguard their personal information; monitor public records and private records, such as credit reports, to alert their clients of certain transactions and status changes; and provide assistance to victims to help them resolve problems associated with identity theft.

How Does Identity Theft Happen?

The methods that criminals use to get identity from people are always changing. There are 3 particular categories that these methods can be divided into. The first category is information given away. This method is referred to as the easiest way to steal someone’s identity. This occurs when people simply just give away information like their address to strangers or when they are not safe online and their personal information can be accessible to anybody. The second category is known as offline methods.This category includes techniques like dumpster diving, shoulder surfing, wallet or document theft, bogus phone call, skimming, pretexting, and business record theft. The third category is referred to as online methods. Identity (ID) theft happens when someone steals your personal information to commit fraud. The identity thief may use your information to apply for credit, file taxes, or get medical services. These acts can damage your credit status, and cost you time and money to restore your good name

Types of identity theft

The two categories of identity theft are:

True-name identity theft means the thief uses PII to open new accounts. The thief might open a new credit card account, establish cellular phone service or open a new checking account to obtain blank checks.

Account-takeover identity theft is when the imposter uses PII to gain access to the person’s existing accounts. Typically, the thief will change the mailing address on an account and run up a bill before the victim realizes there is a problem. The internet has made it easier for identity thieves to use the information they’ve stolen since online transactions are made without any personal interaction.

There are many different examples of identity theft, including:

Financial identity theft. This is the most common type of identity theft. Financial identity theft seeks economic benefits by using a stolen identity.

Tax-related identity theft. In this type of exploit, the criminal files a false tax return with the Internal Revenue Service (IRS), for example, using a stolen Social Security number.

Medical identity theft. This is where the thief steals information, such health insurance member numbers, to receive medical services. The victim’s health insurance provider may get fraudulent bills. This will be reflected in the victim’s account as services they received.

Criminal identity theft. In this example, a person under arrest gives stolen identity information to the police. If this exploit is successful, the victim is charged instead of the thief.

Child identity theft. In this exploit, a child’s Social Security number is misused to apply for government benefits and open bank accounts or other services. Criminals often seek the information of children because the damage may go unnoticed for a long time.

Senior identity theft. This type of exploit targets people over the age of 60. Senior citizens are often identified as easy theft targets. It is important for seniors to be aware of the evolving methods thieves use to steal information.

Identity cloning for concealment. In this exploit, a thief impersonates someone else to hide from law enforcement or creditors. Because this isn’t always financially motivated, it’s hard to track and there often isn’t a paper trail for law enforcement to follow.

Synthetic identity theft. In this type of exploit, a thief partially or completely fabricates an identity by combining different pieces of PII from different sources. For example, the thief may combine one stolen Social Security number with an unrelated birthdate. Usually, this type of theft is difficult to track because the activities of the thief are recorded files that do not belong to a real person.

How to tell if your identity has been stolen

Victims notice withdrawals from their bank account that weren’t made by them; an impacted credit score; victims don’t receive bills or other important mail containing sensitive information; victims find false accounts and charges on their credit report; victims are rejected from a health plan because their medical records reflect a condition they don’t have; victims receive an IRS notification that another tax return was filed under their name; and victims are notified of a data breach at a company that stores their personal information. An identity thief could also create fake social media accounts pretending to be you, use your info to pass a job background check or rent an apartment. Fraudsters often target people with a strong credit history and no criminal background.

Also read: CONTROL MECHANISM IN ADMINISTRATIVE LAW. AN ANALYTICAL AND THEORETICAL OVERVIEW CONCERNING EPIDEMIC DISEASE ACT OF 1897.

How to protect yourself against identity theft

To protect themselves from identity theft, experts recommend individuals regularly check credit reports with major credit bureaus, pay attention to billing cycles and follow up with creditors if bills do not arrive on time. And people must destroy unsolicited credit applications and watch out for unauthorized transactions on account statements. The new program for infecting users’ computers was called Zeus, and the program is so hacker-friendly that even an inexperienced hacker can operate it. Although the hacking program is easy to use, that fact does not diminish the devastating effects that Zeus (or other software like Zeus) can do on a computer and the user. For example, programs like Zeus can steal credit card information, important documents, and even documents necessary for homeland security. If a hacker were to gain this information, it would mean identity theft or even a possible terrorist attack. The ITAC says that about 15 million Americans had their identity stolen in 2012. People must avoid carrying Social Security cards or numbers on them and avoid giving out PII in response to unsolicited emails and shred discarded financial documents. Check your financial accounts often and keep tabs on your credit reports to look for changes you didn’t make. Don’t click links, open attachments, or respond to emails from unfamiliar or untrusted sources. These may contain malware. Set up alerts on your banking and credit card accounts. For example, your bank may notify you each time there’s a withdrawal from your checking account.

Reporting identity theft

Reporting identity theft can help law enforcement bring criminals to justice and help keep your information safe. When criminals steal a firm’s credit card records, they produce two distinct effects. First, they make off with digital information about individuals that is useful in many ways. For example, they might use the credit card information to run up huge bills, forcing the credit card firms to suffer large losses, or they might sell the information to others who can use it in a similar fashion. Second, they might use individual credit card names and numbers to create new identities for other criminals. For example, a criminal might contact the issuing bank of a stolen credit card and change the mailing address on the account. Next, the criminal may get a passport or driver’s license with his own picture but with the victim’s name. Identity theft can be initiated in a number of ways. You may receive a notice from a company you do business with that says your personal information was exposed in a data breach. You could lose your wallet. Someone could hack your online accounts, such as an eCommerce site or social media site. The Identity Theft and Assumption Deterrence Act prohibits “knowingly transferring or using a means of identification with the intent to commit, aid or abet any unlawful activity that constitutes a violation of federal law or that constitutes a felony under any applicable state or local law.”

Identity protection by organizations

In their May 1998 testimony before the United States Senate, the Federal Trade Commission (FTC) discussed the sale of Social Security numbers and other personal identifiers by credit-raters and data miners. The FTC agreed to the industry’s self-regulating principles restricting access to information on credit reports. According to the industry, the restrictions vary according to the category of customer. Credit reporting agencies gather and disclose personal and credit information to a wide business client base.

Poor stewardship of personal data by organizations, resulting in unauthorized access to sensitive data, can expose individuals to the risk of identity theft. The Privacy Rights Clearinghouse has documented over 900 individual data breaches by US companies and government agencies since January 2005, which together have involved over 200 million total records containing sensitive personal information, many containing social security numbers. Poor corporate diligence standards which can result in data breaches include failure to shred confidential information before throwing it into dumpsters failure to ensure adequate network security credit card numbers stolen by call center agents and people with access to call recordings the theft of laptop computers or portable media being carried off-site containing vast amounts of personal information. The use of strong encryption on these devices can reduce the chance of data being misused should a criminal obtain them. The brokerage of personal information to other businesses without ensuring that the purchaser maintains adequate security controls Failure of governments, when registering sole proprietorships, partnerships, and corporations, to determine if the officers listed in the Articles of Incorporation are who they say they are. This potentially allows criminals access to personal information through credit rating and data mining services.

Identity theft insurance

Some identity theft resources, such as insurance, can help victims. Identity theft insurance can help victims expedite slow and costly recovery processes. Identity theft insurance usually only covers recovery costs, not the damages caused directly by the theft. Depending on the policy, expenses covered may include the following:

lost wages

childcare costs

credit monitoring services

legal fees

copies of credit reports

Identity theft insurance is available either as an endorsement to homeowners or renters insurance policies, or as a standalone policy. They often have deductibles of $100 to $500. They also usually have benefit limits of $10,000 to $15,000. This means damages that exceed the limit are not fully covered and the victim must pay the difference.

Victims seeking an alternative to insurance or help beyond insurance can use identity theft protection services. These services differ from identity theft insurance policies in that they may provide reimbursement of stolen funds, restoration services and credit monitoring services for a fee.

What’s The Department of Justice Doing About Identity Theft and Fraud?

The Department of Justice prosecutes cases of identity theft and fraud under a variety of federal statutes. In the fall of 1998, for example, Congress passed the Identity Theft and Assumption Deterrence Act. This legislation created a new offense of identity theft, which prohibits “knowingly transfer[ring] or us[ing], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.”. This offense, in most circumstances, carries a maximum term of 15 years’ imprisonment, a fine, and criminal forfeiture of any personal property used or intended to be used to commit the offense.

Penalties for identity theft

Penalties for identity theft are wide-ranging and can be severe. They vary based on offense. Some penalties for identity theft include In certain first-offense scenarios, thieves may be sentenced to probation if they didn’t cause significant harm. Those on probation may still be responsible for fines and restitution. Being issued felony and misdemeanor charges is the most common consequence for perpetrators. The thief may be required to compensate the victim for financial losses, including lost wages, legal fees and potentially emotional distress costs. Perpetrators of identity theft in the U.S. are often face imprisonment, with the minimum sentence being two years for aggravated identity theft. This penalty increases with case severity.

Conclusion

In conclusion, identity theft is illegal, unethical, and very dangerous to the victim. This is because identity theft can cause a lot of financial and reputation damage to the victim and his/her family. It is a shame that there are so many cases of this crime in the world today. Having said all of this, it is really important to prevent identity theft by being careful of your actions. However, as technology is advancing, it is becoming harder and harder to do so. Due to this fact, it is important for each individual to know what identity theft is and what they can do to prevent it from happening. After this is accomplished, identity theft will be minimized and this world will be a better and safer place. Identity theft is a nonethical criminal offense. It is when someone gathers someone’s personal information and uses it against them. Fraudsters usually get a hold of personal information using three methods: information given away, offline methods, and online methods. People commit this crime for many different reasons, but they all have one common goal of using someone else’s identity to their advantage. There are many different types of identity thefts, which are categorized on what the criminal is using the identity for. Having said all of this, identity is a crime that can cause a lot of finical and reputation damage to the victim and that is why it is important to prevent it. Identity theft can be prevented if everybody knows exactly what it is and what they can do to keep their identity safe. In closing, it is fair to say that identity theft is one of the increasing crimes and could be leading the crime charts in the near future, and is why one must always be precautious with their sensitive key information and not leave their important emails or devices that contain personal information unattended. One should be vigilant towards the warning signs and act upon them at the earliest.

BIBLIOGRAPHY

.https://www.google.com/search?q=identity+theft&oq=identity+theft&aqs=chrome.0.69i59l4j69i60l3.4020j0j4&sourceid=chrome&ie=UTF-8

. https://www.legalserviceindia.com/legal/article-1619-identity-theft-a-modern-crime.html

. https://www.techtarget.com/searchsecurity/definition/identity-theft

Author: Subodh Gautam, School of law, University of Petroleum and Energy Studies.

Editor: Kanishka Vaish, Senior Editor, LexLife India

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding cognizance and Committals.

Reading time : 8 minutes

ABSTRACT

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding Cognizance and Committals.

This paper covers the cognizance powers of four different courts and as we know each court has its own jurisdiction and the circle for operating is different for all courts. We will cover different aspects of cognizance under Sec 190 CrPC, for magistrate and also sections regarding different courts. This paper is concerned about the territorial and pecuniary jurisdiction of courts, here mainly I will try to reflect the scenario in State of Bihar, the process for executing their powers. We will also cover about committing of cases by lower court and also double committals by higher courts. Several cases regarding this will be covered and how these cases reflect the true nature of judiciary in deciding cases and giving justice to common people. This papers also covers the charges, its contents and also joinder of charges will be discussed, scenarios were joinder is possible and the circumstances and cases regarding that. This paper is also concerned about the faulty charges, and the process for rebuttals for that wrong charges, what rights are possessed by the accused if he is charges with wrong charges if proved, steps will be covered and the currents cases and judgments will be discussed for inoperative charged against the accused.

Keywords – Joinder of Charges, Rebuttals, Committals, Cognizance, Territorial Jurisdiction, Pecuniary Jurisdiction, Inoperative Charges.

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding Cognizance and Committals.

1. Introduction to charges and its Joinder.

1.1– If the definition of charge is concerned, it is defined under Sec 2(b) of the code of criminal procedure, it is generally all the allegations which the accused is responsible and in the further trail he/she will be tried with the given provisions i.e. Charge which is framed by the court. The charges are generally framed to clear he is accused and these are the further provision he will be charged with and a notice is sent to the accusation and to called upon for the court trials. The above statement was stated by the court in the case of V.C Shukla v/s State[1].

1.2 – Contents of the charges – Contents of the charges are defined in Sec 211 of the code of criminal procedure and the following content should be present while framing charges –

1.2.1 – Offence needs to be given for which the accused is being charged and to be tried further.

1.2.2 – If there is some specific name for specific offence in the law, then it is necessary to mention with that specific name.

1.2.3 – If in the case the specific name is not given then, the definition of the offence should be stated.

1.2.4 – All the necessary section for which the accused is charged or is said to have committed needs to be mentioned while framing the charges.

1.2.5 – The court language must be preferred while writing the charges.

2. Faulty while framing the charges and its repercussion –

Repercussion when framing the charges are given in Sec 215 and sec 464 respectively. The main objective of these sections are to prevent that there should be no injustice on the party’s end if some technical error or some breach of rule is exercised. These two when read together, mainly points out that whatever the errors or irregularity is present while framing the charges, it will not be considered as blunder mistake or fatal mistake if no prejudice caused to the accused.[2]

2.1 – These sections also say that if there is some error or irregularities in stating the particulars of the offence and in this scenario this irregularity or error will not the trial procedure or the outcome so generated.

2.2 – Then in this case to decide, when the irregularity or error has caused some prejudice to the accused, the could should have regard to the manner in which the accused presented or conducted his defence and also about the nature of the objection during the trial procedure.

2.3 – The object of the charge is to provide a notice about the matter that he is liable and charged with, and if this important information is conveyed to the accused and in this scenario he can’t claim or try to escape from his liability just by stating that the charges were defective in nature[3] and the also the same principle applies to the conviction itself, if the conviction recording is done through provisions be reversed and if this is being informed to the accused then and there is no such prejudice caused whatsoever then in this case they can’t escape their liability dur to defective of charges. The mere omission and minor technical difficulties are not the sole cause which can make a person either convicted or acquitted for obvious reasons stated above.

3. Amendment or Alteration of charges

Sec 216(1) of Code of Criminal Procedure, says about that court has power to bring amendment in the charges at any point of time before judgement is given. This section provides a comprehensive power to correct the charges when framed wrong or also when there is no framing of charges but the charges needs to be framed, whether discovered at the initial stage or after trial procedure or during trial procedure but prior to the judgement can amend the charges.

This code provides a broad power to amend the charges either by the trial court or appellate court but the condition that the accused should be charged with new charges for the new offence and it should also not cause any prejudice by not stating him the fault charges or not giving him opportunity to bring a defence against the defective charges or to attend the meeting regarding the defective charges.[4] But as we know this provides a wide power to the court, but court has to exercise this power efficiently and in the judicial manner that no prejudice is caused to the party either accused or defence whatsoever.[5]

4. Joinder of Charges

The main section regarding framing of charges comes under Sec 218 which states that for every offence so committed that the person so liable has to charge with a separate charge and should be tried separately and distinctively. But Sec 219 to Sec 223, talks about the joinder of charges which in case acts as an exception to the provisions under Sec 218. Following are the conditions which states that where joinder of charges is applicable –

4.1 – Sec 219 (1) and (2) jointly, talks about that if the offence so committed is of same kind and by the same person and then the charges will be joined and should be tried jointly and if the offense have been committed under a span of 12 months and clause (2) states that when the offense so committed are same and are comes under the same ambit of punishment and they can be charged jointly.

4.2 – If a person committed some offences and in a series of acts which are somewhat connected to each other and forming a same and single transaction, then also in this case the charged can be joined and a single trial for all the charges will be conducted and this provision is given under Sec 220.

4.3 – Sec 221 hereby deals with the confusion, that if some person done some offences using series of acts and the confusion started regarding the proving of facts then in this case accued may be charged with the any of the offences so proved or all the offences so proved, and if accused is charged with one offence and during the evidence it is found that he has committed more offences or different offence, then he may be convicted with the same even if he has not committed the offence or charged with the same.

Also read: ANALYSIS THE STATUS OF CRYPTO CURRENCY IN INDIA IN COMPARISON TO USA

4.4 – Sec 223 deals with the class or group of persons who have committed the same offence and somewhat found common in their intentional thinking, then in this case all the persons are charged and tried jointly. Some conditions are given under Sec 223 which states about the following person which can be charged jointly –

4.4.1– If the group of persons have committed the same offence and in the identical course of transaction.

4.4.2 – A single person who has committed the offence and the remaining other helped him or abetted him to do the same then they all will be charged jointly.

4.4.3 – All the person who comes under the spectrum of Sec 219 of Code of Criminal Procedure.

4.4.4 – All the person who have committed in the same course of transaction but different offences, then they will be tried jointly.

4.4.5 – The person who have committed offences such as extortion, theft, robbery or criminal misappropriation and all the person who are retaining these properties or concealing the property then all the persons liable are to be charged and tried jointly.

4.4.6 – The group of person or class of persons who have committed the offence which comes under the spectrum of Sec 411 and Sec 414 of Indian Penal Code respectively which deals with the stolen property and its possession then in this scenario they will be tried jointly.

4.4.7 – The group of persons which committed the offence which comes under the ambit of Chapter XII of Indian Penal Code which deals with the possession of counterfeit coins then in this case they will be charged jointly.

4.4.8 – Lastly, all the accused person which doesn’t comes under the ambit of the conditions stated above or the classes of Sec 223, cannot himself claim a joint trial. The proviso of this section provides discretionary power of the court.

5. Jurisdiction of Courts

Jurisdiction of courts can be stated as the limit on which a case can be tried or the extent where the court can exercise its power for which the appeals and suit are filed. The main rationale behind this jurisdiction procedure is that the case and appeals so filed should fall in the court’s geographical location so that the judgement so given could be converted into action and should fall under the court’s pecuniary limits. Now, types of jurisdiction and the court so defined under it –

5.1 – Subject Matter Jurisdiction – It can be defined as the courts which are given authority to try the case of particular subject matter. For example, we can say that the consumer courts or district forums have only authority to try cases related to consumer products, it can’t try civil or criminal cases.

5.2 – Territorial Jurisdiction – The name already defines this jurisdiction, this jurisdiction states that the geographical limits of the courts. The authority is vested only up-to its geographical limit, they can’t exercise their authority beyond their territorial limit. The courts so associated are the State high courts considering their state boundaries and the district courts considering their district geographical limits.

5.3 – Original Jurisdiction – It talks about the court for taking cognizance at the first instance of case, they are courts who have the original jurisdiction to try the particular cases as the first instances. It is different from appellate jurisdiction as in appellate a case comes after hearing of the particular case and is appealed again and in the case of original jurisdiction it is done at the first instance that the case is a fresh case and is in proceeding or tried the first time. For e.g. we can the high court of Allahabad has the original jurisdiction to try the cases of matrimonial, testamentary, probate and company matters.

5.4 – Appellate Jurisdiction – It defines as the authority of the court which can hear the case after reviewed from the lower courts or where the judgement is given from the lower court. The courts which holds the appellate jurisdiction are High courts and Supreme Court of India. These courts have power to overrule the past judgements or uphold the judgement or could also amend the sentence.

6 – Process of Magistrate’s cognizance and committals.

6.1 – Taking of Cognizance by Magistrate –

6.1.1 – Taking of cognizance is not defined in the Code of Criminal Procedure, but under Sec 190 it is stated that magistrate can take cognizance under Sec 190(1) (a), of Code of Criminal Procedure, he must not only have applied his mind only for the content of the petition but also for the purpose of the accused that the accused gets his defence or should be tried lawfully.

6.1.2 – Sec 193 – Committal by the court of session, in this case the court of session has power to take cognizance of a case but this cognizance can only be taken if the case is itself committed by the magistrate unless this the court of session can’t take cognizance of a particular case. And this committal is done under Sec 209 od CRPC.

6.1.3 – Sec 195-199 – As we know that magistrate possess the power to take cognizance under Sec 190(1) but, this power is not absolute this authority or jurisdiction can be taken away by the conditions provided under the provisions given under Sec 195-199, so at the time of taking cognizance the magistrate should always examine the facts of the complaint etc. and determine his jurisdiction to take cognizance is there or not or is it taken by the latter provisions.

6.1.4 – Sec 345 – This sec of CRPC deals with taking cognizance with the offences namely contempt which is given in sec 175, 178, 179, 180 and 228 of Indian Penal Code and give power to civil, criminal or revenue courts to take cognizance for the same.

6.1.5 – Under Sec 190(1) (a) – it deals with the cognizance taken under complaint so presented by the person. Sec 190(1)(b) deals with the cognizance taken under police report presented by the police officer after investigation. Sec 190 (1) (c) deals with the cognizance upon the information which is received from any person after analysing the situation.

6.2 – Committal process of magistrate

Under Chapter XVIII, old Cr.P.C. procedure of inquiry into cases triable by the court of Sessions or High Court is indicated. Here also, the proceedings can be started either on private complaint or on a police report. U/s. 207-A of the Code, after report is filed U/s 173 Cr.P.C. by a police officer, the accused is supplied with document and the prosecution examines witnesses to the occurrence to establish prima-facie case against the accused. Based on the material available and on hearing both sides, Charges are to be framed either under one head or under two or more heads under Schedule V in forms XXVIII (1) and (2) respectively. The accused are to be supplied with copy of Charge under seal and signature of the Magistrate. On being satisfied that a prima-facie case is made out, the Magistrate has to commit the accused for trial to the Court of Sessions to take the trial. The Magistrate has to commit the accused for trial subject to provisions of the court regarding the taking of bail, warrant to custody as laid down u/s. 207-A (16). A committal order is to be passed bringing out the brief history of the case, evidence adduced before him and the fact of considering both the evidence and record. It shall also contain the stages of the enquiry like supply of documents, framing of charges etc. The Magistrate has to ascertain from the accused during his examination whether he is competent to defend himself or “Legal Aid” to be provided. He should also ascertain whether the accused has any defense and the particulars of the witnesses if stated or inform the accused that he can furnish the information before the Sessions Court. The Magistrate should not give any findings on the facts since it is only an enquiry at committal stage. Only with the committal of the accused by a Magistrate, the Sessions Court will have the jurisdiction to try the accused. This procedure is envisaged to save the valuable time of the Sessions Court and High Court

7. Conclusion

This paper covered all the important points related to charges, its joinder and faulty charges. Consequences of faulty charges were discussed i.e. if the charges then the defence can’t get acquitted or prosecution gets the conviction solely on the basis of faulty charges. If the faulty charges didn’t cause any prejudice to any of the parties then it can be amended or altered at any point of time before the judgement is given under Sec 216(1). Several circumstances where joinder of charges takes place were discussed which are covered under sec 219-223, i.e. when the class of person can be tried together or when the charges can be joined. After that different jurisdiction were discussed and how different courts lie under different jurisdiction i.e. consumer courts lie under subject matter jurisdiction and they can’t try the cases of civil or criminal matters, they don’t have authority or jurisdiction to do so. Further territorial, pecuniary, original and appellate jurisdiction were discussed. Cognizance power of magistrate is discussed i.e. under Sec 190 (1) magistrate has power to take cognizance on the matter i.e. apply his/her judicial mind, this power can be taken back under the conditions provided under sec 193-199. Lastly, the committal process of magistrate is discussed, how magistrate commits the case, and then tried by higher court i.e. session court’s judge.

[1] 1979 AIR 962

[2] Kailash Gir v/s V.K.Khare, Food Inspector, 1981, CriLj 1555, 1556(MP)

[3] SS Rout v/s State of Orissa, 1991 CriLj 254 (Bom.)

[4] Kantilal Cahndulal Mehta v/s State of Maharashtra, (1969) 3 SCC 166

[5] Harihar Chakravorhty v/s State of W.B., air 1954 SC 266

Author: Ujjwal Kumar, School of law, University of Petroleum and Energy Studies

Editor: Kanishka Vaish, Senior Editor, LexLife India

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[2] Sexual Harassment of Women at Workplace available at

[3] What Constitutes Workplace Sexual Harassment? Available at

[4] The Vishaka Guidelines: A step against Sexual Harrasment available at https://blog.ipleaders.in/vishaka-guidelines/ ( visited on March 19, 2022)

[5] Vishaka v. State of Rajsthan, available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan ( visited on March 20, 2022)

[6] Sexual harassment and Vishakha guidelines: All you need to know available at https://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html ( visited on March 20, 2022)

[7] Vishaka v. State of Rajsthan available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=“Vishakha%20guidelines”%201%20Duty%20of%20the%20Employer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html&nbsp; ( visited on March 20, 2022)

[9] Vishaka v. State of Rajsthan available at

[10] Sexual harassment at workplace: Developments post Vishaka Judgement available at

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Introduction

Legal History of cryptocurrency in India

Legal risks associated with crypto

Current scenario in India

International scenario

Conclusion

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[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)