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ARTICLE 32: HEART AND SOUL OF THE CONSTITUTION; By – Khyati Bhatodkar, Legal Asst., Prime Legal

NO FUNDAMENTAL RIGHT HAS ANY MEANING WITHOUT ARTICLE-32

Introduction

As the Preamble of our country says, “Liberty of thought and expression is the right of every citizen of the country”, is it though? And what remedy is available if such liberties are snatched away from the citizens?!

This is when Article 32 comes to the rescue.

As we know, there are various fundamental rights engrafted in the Constitution, but a mere declaration of such rights hardly ensures their practical existence in political life. In reality, rights must be enforceable by the judiciary otherwise they’ll only be considered “Paper rights”. A mere enumeration of rights is not sufficient, besides, the provision for reinforcement of the rights is needed. So if and when any citizen of India feels that he is being deprived of his rights, he can move to Supreme Court under Article 32 of the Constitution and can seek a legal remedy.

But in the latest judgment of the Supreme Court in the case of Union of India v. Paul Manickam[i], where Supreme Court bench had stated that the appropriate High Court which has the jurisdiction should be approached first and just in case, it doesn’t get dissolved, only then the Supreme Court can be approached.[ii]

This observation raised a lot of questions as to the true scope and the ambit of Article 32.

 History of Article 32

When the Constitution of India was being drafted, there were few rights given to every citizen of the country irrespective of their Age, Caste, and Gender and therefore Fundamental Rights such as:-

  • Right to Equality (Article 14-18)
  • Right to Freedom (Article 19-22)
  • Right against Exploitation (Article 23-24)
  • Right to Freedom of Religion (Article 25-28)
  • Cultural and Educational Rights (Article 29-30)
  • Right to Property (Article 19, 31)
  • Right to Constitutional Remedies (Article 32)

But in the 44th Amendment of the Constitution in 1978 Right to Property was being removed from the list of the Fundamental Rights and all the other rights were kept as it is. When Fundamental rights were being provided to the citizens, a need was felt to secure such rights for the people and that’s when Article 32 came into the picture.

Article 32 i.e., “Right to Constitutional Remedies” was made to deal to ensure that no citizen stays deprived of using their Fundamental Rights and affirms the right to move to the Supreme Court if and or Constitutional Right of any citizen has been “unduly deprived”.

During the Constituent Assembly debate, Dr. B.R Ambedkar had said that Article 32 is the heart and soul of the Constitution, and rights given through it will always be exercised in the Supreme Court unless any amendment has been made in the Constitution.

Enforcement of Article 32

INJUSTICE ANYWHERE IS A THREAT TO JUSTICE EVERYWHERE

-MARTIN LUTHER KING JR[iii].

 Right to constitutional remedies works on the Doctrine “Ubi Jus Ibi Remedium which means when there is a right there is a remedy.

It gives the power to the citizens of India to go directly to the Supreme Court of India if they feel that any of their Fundamental Rights have been violated.

Article 32 came out to be the greatest safeguard that could be provided to protect the fundamental rights of the citizens and “It is a right fundamental to all the other Fundamental Rights”.

Courts, as the judicial sentinel of the fundamental rights, are equipped with constitutional weapons i.e., WRITS. Writs which are being performed both by The Supreme Court and The High Court under Article 32 and 226 are for the violation and enactment of the Fundamental Rights. Both the courts have the power to issue directions, orders, and writs, including writs of Habeas corpus, Mandamus, Prohibition, Quo warranto, and Certiorari, for the enforcement of any of the rights. On the other hand, Parliament has the right to empower any other court with such authority so that it can act as “Protector and guarantor” of such rights.

Writs that are being performed by the Courts include:

  • Habeas Corpus – Related to the Personal Liberty in the cases of illegal detentions and wrongful arrests and it may be to free a person, who is in the opinion of the court, arbitrarily arrested and detained by the executive authority.
  • Certiorari – The Re-examination of the orders given by the Administrative Authorities.
  • Mandamus – Directing the public officials, courts, and governments to perform a statutory duty and for the reason of directing the inferior courts to do the most for protecting and maintaining fundamental rights of the citizens.
  • Prohibition – Directing the judicial and quasi-judicial authorities to stop proceedings in which they have no Jurisdiction.
  • Quo Warranto – To show by what right is a person holding public office.

Black spot in the Constitution

There is an exception made in the Constitution when the emergency is imposed by the president under Article 352. During which, the rights of the citizens remain suspended and the remedy for such can’t be fought for. In simple words, even if a person feels deprived of his fundamental rights, he has no right to go to the Supreme Court during an emergency. The only reason why it has restricted the citizens from seeking redressal is that in some cases, it might endanger the security of the whole nation.

PIL under Article 32

Public Interest Litigation is the power given to the public by courts through judicial activism[iv].

The PIL does not need to only be filed by the aggrieved person whose rights have been hampered but it can be filed by anybody, not for personal interests or pecuniary gains but for the benefit of the public at large.

Before the 1970sonly the affected parties had the Locus Standi (were allowed) to file the case. However, all these scenarios changed in the post-emergency period[v].

Due to this, PIL became a powerful weapon for the enforcement of fundamental rights and therefore, the above-mentioned Writs were being introduced.

The reason behind this was that there could be situations when a victim may not have the necessary resources to move to court if her or his rights were breached. In such cases, either the apex court could take cognizance of the matter and proceed “Suo Moto” or hear a petition on behalf of an individual for public benefit.

Amendments to Article 32[vi]

42nd Amendment made changes in the Article. This amendment was made during the time of emergency when it was passed to reduce the jurisdiction of the Supreme Court and the High Courts to review the application of fundamental rights.

Difference between Article 32 and Article 226

Article 32 is a fundamental right, whereas, Article 26 is a Constitutional Right that cannot be suspended and has a wider scope as compared to that with Article 32. Article 32 has jurisdiction all over the country but Article 226 is only concerned with a particular state.

Landmark Judgments

All these years, major cases that had dealt with all the various fundamental rights were being taken to the Supreme Court and High court under Article 32 and Article 226 of the Constitution.

In a judgment in the L. Chandra Kumar vs. Union of India and Others case[vii] and S.P. Sampath Kumar vs. Union of India[viii] case, it was declared that Article 32 was an integral and essential feature of the Constitution and constituted its basic structure.

During the 1975 Emergency, in the ADM Jabalpur vs. Shivakant Shukla case[ix], SC had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency. People were unable to seek redressal when their fundamental rights were being hampered.

The most recent incidents where Article 32 was discussed, was when Kerala-based journalist Siddique Kappan[x] languished in jail, and debate around the relevance of Article 32 continued inside and outside the Indian courts, the reason being that the Supreme Court may no longer entertain bail petitions under Article 32 of the Constitution.

The court had then said that “The right to approach the Supreme Court under Article 32 is itself a fundamental right and that there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right”.

In the recent case of Arnab Goswami[xi], where PIL’s were filed against him under Article 32 of the Constitution, Hon’ble Chief Justice had said that Supreme Court wouldn’t exercise its powers for matters under Article 32 and also contended that it should be solely done by the High Court with appropriate jurisdiction so as to protect the interest and rights of individuals.

Conclusion

The constitutional remedies provided to the citizens are the most powerful orders with immediate effects and results and that is why it has always been considered as the most important fundamental right engrafted in the Constitution of India. From the above-cited facts, it has definitely been understood that the Constitution of our country isn’t rigid and the various cases and court proceedings keep on challenging the basic structure of the Constitution.

Article 32 still ensures that the fundamental rights of the citizens will always be protected and enforced by the Judiciary of India. And no citizen will be left unheard and deprived of his/her rights being the citizens of an independent country.

References

[i]  AIR 2003 SC 4622

[ii]  www.casemine.com

[iii] www.wisdomquotes.com

[iv] www.journalsofindia.com

[v] https://blog.ipleaders.in/article-32-constitution-india/

[vi]  www.advocatespedia.com

[vii] 1997 (2) SCR 1186

[viii] 1987 SCR (3) 233, 1987 SCC Suppl. 734

[ix] 1976 AIR 1207, 1976 SCR 172

[x] https://thewire.in/law/siddique-kappan-arnab-goswami-kapil-sibal-cji-bobde-supreme-court

[xi] Arnab Manoranjan Goswami vs. State of Maharashtra [Criminal Appeal No. 742 of 2020]

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CRIMINAL PSYCHOLOGY – A GAME OF MINDPLAYERS; By- Shivani Sharma, Legal Asst., Prime Legal

Chapter -1   Introduction

The modern scientific age aided in establishing a greater scope for crime and psychology and asserted that this process has been continuing since the evolution of mankind i.e. from wildlife to civilized state. With the growing research in this field, the jurists and psychologists have successfully been able to curve the criminal psychology to decrease and control the criminal psychics in the society.

The psychological Jurisprudence helps us to understand the relation of crime and human mind, which further encourages us to establish a meaning to the terms like ‘mens rea’ and ‘bona-fide or mala-fide intention’. By gaining knowledge regarding the psych of the perpetrators, the legislation can make laws to protect the society from such criminal minds.

1.1  Definition of crime

The psychological perspectives regarding criminal activities are supported with three chief views. They are stated as follows:

  1. The Consensus View :

This view was first introduced in sociological theories provided by J. Shepherdin (1981).  As per this theory, the functions of the society are as an integrated structure, and this solely depends upon the consensus agreement by its member, and these norms are to be respected by all. Thus, the legal system of a society is a reflection of what is tolerable there. The intolerant behaviour disapproved by the majority enlists some activities which can create disturbance in the stable functioning of the state and therefore is known as ‘crime’.

The theory implied that a criminal activity is anything forbidden by the law and for a crime to occur, it must be committed. It could also be interpreted that morally wrongful acts such as racism and sexism would also fall under the category of crime. This theory further elucidated that trifling acts are, though anti-social, but will not be considered as crimes. According to this school, the intention of criminal law is to secure an individual and his property.

  1. The Conflict View:

The Conflict theory completely contradicts the Consensus view. The proponents of this theory argued, that the society is a collection of people with diverse backgrounds with conflicting ideas and not an integrated structure. They also believed that a society consists of different groups of people, such as students, professional, businessman, unions etc, and these groups are in a state of war with each other due to the irregularities in distribution of wealth and power.

In the society some people hold the ample amount of power and wealth and rest are neglected, which further provokes criminal minds in the society.

This theory peeked during 1960’s and 70’s. Marxist theory was an integral part of this school as it stated that crime was a direct result of the capitalist society and it could only be curbed through the development of a classless society.

  1. The Inter-actionist View:

This approach was a midway in both the views discussed above.  This was first introduced in the field of sociology as ‘symbolic interaction’. The assumptions for this particular view are as follows:

  • An individual’s capacity to interpret an event constitutes his behaviour.
  • It is human nature to pick negative or positive reaction of people and their reactions to certain events.
  • A person evaluates his own behaviour according to the meaning that he derives from the situations.

It is must also be noted that the moral standards are continuously changing; therefore, there is no definition of morally wrongful acts.  For example, killing of a person is a criminal act. However, killing of a person in self defence is considered legitimate.

1.2 What is Criminal Psychology?

Criminal Psychology is that branch of psychology which deals with the study of the views, interactions, thoughts, actions and reactions of the criminals about the crime he committed.

According to G.H. Godjonsson and L.H.C Hawardin UK, ”Criminal psychology  the branch of applied psychology, which is concerned with the collection, examination, and presentation of evidences for judicial purposes.”

According to the Criminal dictionary,” criminal psychology is the study of will, thoughts, feelings, actions and reactions of criminal and those who are involved in any criminal activities”.

 

Chapter-2 History of Criminal Psychology

Though the concept of Criminal Psychology was brought to light in the early 20th century, but its traceable evolution has paved way for the modern criminal psychology. Just like other fields under the science of psychology, it is neither a narrow nor a theoretical concept. When it comes to legal scenario, it is considered as one of the primary clinical approach to render the real motive and causes behind any criminal activity.

Goddard, a renowned psychologist had brought to our notice that most of the juvenile as well as the adult offenders were “mentally deficient”, which concluded that the primary cause of crime and delinquency was intellectual limitation. A psychologist namely, Hans Toch in 1961, produced and edited the first ever book on the subject of criminal psychology. The early 1960s established the distinction between the psychological criminology and psychometrics.

Hans J. Eysenck, a British psychologist in his comprehension ‘Crime and Psychology’ formulated the theory that criminal behaviour is advanced by a person’s psychology. He paid emphasis on the extraversion characteristics of a person’s personality and believed that this could be attributed to both biological predisposition to seek or avoid sensations and perceiving the experiences absorbed from the environment. The theories produced by him held great significance at that time, but was overshadowed by the preference of clinical approach with growing ages.

The conceptualization of criminal psychology and the approach to deal with it, can be found in the different theories applied for punishing the perpetrator.

2.1 Theories of punishment

  1. Preventive theory:

It is one of the oldest theory based on the belief that providing punishment for the commitment of a wrongful deed is essential. This was formulated with the ideology of ‘an eye for an eye and a tooth for a tooth’. This depicted the violent irregular criminal psychology and favoured a more revengeful approach to provide justice. It was later criticized by the jurists as it would create more vulnerability than the crime itself. Mahatma Gandhi quoted, “An eye for an eye, would turn the whole world blind”.

  1. Deterrent theory:

This primitive method of punishment suggested that severe punishments will deter the perpetrator from committing crimes. It argued that, it was necessary to create fear of punishment in the minds of people as to make them abide to the law. This theory assumed that the offenders were already suffering from mental declination and they committed crime for their personal satisfaction and therefore, the quantum of punishment will curb their ill desires.

  1. Preventive theory:

This theory was founded on the principle that the main objective of providing punishment must be to prevent future crimes rather than avenging it. This theory was designed from a more humanitarian perspective and less criminology. It believed that by removing the anti social elements from the society would prevent further crimes from occurring.

  1. Reformative theory:

This is a vastly followed approach for providing punishment in the modern era. This theory supports the idea of reformation of the offender rather than humiliation of punishment. This further protects the human rights of people and transformed the prisons into reformation homes. This theory threw light on the fact that if the evil element of a person is separated from him, he would become fit for the society again. This theory paved way for huge scope of research and observations in criminal psychology.

 

Chapter-3  Role of Criminal Psychologists in modern scientific era

In the modern scientific era, licensed psychologist and psychiatrists are not only appointed for the assessment of an individual’s mind, but also to study the behavior and actions caused thereby. This entire process holds a great significance in order to understand and trace the behavioral patterns of criminal minds. In this process, the psychologists also study the conditions to which an individual belongs, the sufferings in his early stages of life and the arrival of criminal traits in his character.

3.1 Role in legal aspects

  • Examine the offender-It is the prime duty of the criminal psychologist to contribute to the investigation of a case. They are responsible for holding interview sessions with the perpetrators or accused and make clinical observations of the procured evidences.
  • Answer the question of competency-They are obligated to objectify any criminal and bring out his competency of committing a crime. Their assessments are formulated on certain hypothesis which must provide that the offender was capable enough to understand the nature of his acts.
  • Study of the behavior of the suspects-They have to conduct a detailed study about the mental and physical traits of the suspect, before and after the commission of the crime. The final report regarding the sanity of the accused and whether he understood the consequences of his actions is to be submitted by the psychologists.

Criminal psychologists have the final call to decide whether that offender is threat to the society or not.

3.2 Role of Psychologist in an Investigation

In 1981, Professor Lionel Haward, the father of criminal psychology produced that, apart from ‘psychologists in science’, there are mainly four roles of a psychologists in a criminal investigation.

  • Clinical:A detailed assessment must be conducted to deliver a profound judgment which would further aid in interviewing the suspect along with the examination of evidences procured.
  • Experimental:The psychologists, in this, have to perform an intricate research work regarding the particular case. This research must include execution of experimental tests to understand the psyche of the offender and provide the court with relevant information.
  • Actuarial:This task mainly focuses on the collection of statistical data regarding the mental and physical condition of the suspect from the past and present as it is the key element to derive whether he is likely to commit crime in the future.
  • Advisory:It is also the responsibility of the psychologists to give advises to the police as well as the court, as to, in which direction the investigation must proceed. This includes the entire method of cross examining the vulnerable witnesses and the expected reactions to be received from the offenders.

 

Chapter-4  The Applied Criminal Psychology

Applied psychology refers to the field of psychology which deals with practical implications of scientific theories to understand and give reason to the human behaviour and experiences. Thus, the applied criminal psychology deals with the methods which are to be applied, to comprehend the intent of the accused behind his act.

The psychologists are more concentrated in understanding how sociological along with psychological factors influence an individual’s brain. It is their burden to provide ‘which patients become offenders’ and ‘which offenders are already patients’. They are also expected to determine which came first, the crime or the mental disorder and ascertain the level of responsibility of the offender for the crime committed by him. On a prime note, it is of great significance to determine whether a treatment will reduce the risk of recidivism. Parallel to this, goes the genetic traits of a person, which are helpful in determining the characteristics of a person and how he reacts to various environmental factors. Psychological tests, holding a considerable validity in the eyes of court, are resorted to perform psychiatric evaluations by measuring personality traits.

The criminal psychology is a thriving subject with clear vision to emerge on the issue of crime from the psychology department and gain its relevance in the field of criminal investigations. The applied criminal psychology provides a complete comprehensive and practical guide to psychological research and techniques. Some of them are:

  • Psychologically profiling the criminal.
  • The detection of deceit, testimony of the eyewitness, cognitive interview and examination, forensic hunosis and fake confession.
  • Studyof mental disorder and criminal behaviourr,
  • Riskand assessment with rregarding to anti social behaviourand personality disorders.     

The conclusions of such elaborated reports are highly recommended in the courts to provide proper and efficient justice, with equity, justice and good conscience.

 

Chapter-5   Case Studies

Menaces exist in every society, but there are several factors which prevail due to which such heinous crimes occur:

  • Rape cases and Criminal Psychology:
  1. The foremost reason for the repetitive occurrences of such crimes is due to the fact that majority of them are unbridled by the law. In India, most of the rape cases face hesitation, on behalf of the victim’s family, in being brought forward, as the society tends to look down upon to the person who has been sexually exploited.
  2. According to psychological researcher,Madhumita Pandey, who interviewed about 100 rape accused in Tihar jail, initially tagged them as the ‘monsters’ present in the society, but later on she realized that they were ordinary human beings whose upbringing and thought processes result in the commitment of such an act.
  3. As per Gloria Steinem, rape stems from a consciousness that is linked with the “Cult of masculinity”, and the ultimate cause ofthis is to inflict humiliation to the losing side.
  4. As per the study of Marcia Cohen and Sherrie H McKennaand their paper ‘Rape: Psychology, Prevention and Impact’ published by the Yale University, most of rapist belong to lower economic strata. Such offences are usually premeditated and not necessarily occur in the spur of the moment.

Criminal Psychology, Recidivism and serial killings

It has traditionally been observed that serial murders are mostly driven by sexual motives, and in more than half of the serial killers interviewed, a clear sexual motive has been established. The ratio of male to female criminals, including those who commit single-incident homicides, is 9:1; whereas the ratio of males to females who commit serial murder is somewhere in the neighborhood of 19:1. Serial killers operating in a pair, mostly consist of a member playing the dominant role while the other member is a submissive.

Serial killers in general pick-out their victims, and highly appealing are those who seem preoccupied, distracted, or vulnerable and whose disappearance is least likely to be noticed. Hence, the prime targets for serial murders are single women, transients, runaway teenagers, and prostitutes. The fashion of killing by a serial killer is similar in all his cases, but they are way too brutal and unique in comparison to normal murders, which make them memorable and shock the society. Some of the cases which gave the entire nation goosebumps and still haunts it’s people are:

  1. Nithari case:
  • A Businessman,Mohinder Singh Pandher and his home helper, Surinder Kohli were arrested when skulls of missing children were discovered in the Nithari village, on the outskirts of Noida. There were accusations of rape, cannibalism, paedophilia, sodomy and even organ trafficking.
  • Under the same investigation, Surinder was found guilty for 5 murders while Mohinder was accused of 11 unsolved murders. Both of themwere sentenced to death but in 2014, Surinder’s death sentence was called off and changed to life imprisonment.
  1. Lady Cyanide or cyanide Mallika:
  • A woman living in Bangalore namely Mallika, murdered six other women, from 1999 to 2007. She manipulated the lower-middle class women who had undergone domestic violence and later killed them by the use of cyanide, stealing their belongings and jewelries. She was arrested in 2007 and was sentenced life imprisonment.
  1. Stoneman killer case:
  • This is one of the most infamous unsolved murders in the history of India, in which about nine people were brutally murdered with their heads being smashed with a heavy blunt object in 1989.
  • The unknown killer was tagged as ‘The StoneMan’ by a Calcutta newspaper and yet the mystery of those murders is unsolved and the stone man has not been identified.

Conclusion

Psychology is the study of human brain and its nerve connections understand and derive the cause of certain acts that a person performs. By studying in detail, the psychology of the criminals, the psychologists play a vital role in the entire investigation at the time of the proceedings. This also helps the legislature to figure out what laws are required to create fear in the minds of such criminals. No law can stop a mentally imbalanced person from committing crime, but a psychologist can apprehend whether the person is likely to continue such practices ahead in time. Therefore, this growing field of science holds a brighter future for the society.

 

 

 

 

Reference

  1. Introduction to Criminology, Sage publications, available at:

https://www.sagepub.com/sites/default/files/upm-binaries/97952_Chapter_1_Introduction_to_Criminology.pdf

  1. Definition of Crime, Merriam Webster, available at: https://www.merriam-webster.com/dictionary/crime
  2. Criminal Psychology; Explained, JZL CK, Psy-lens, available at: https://medium.com/psy-lens/criminal-psychology-explained-934315473c64
  3. Scope of criminal psychology, Mahima Sharma, Legal service India, available at: http://www.legalserviceindia.com/legal/article-1024-scope-of-criminal-psychology.html#:~:text=While%20in%20india%2C%20it%20can,up%20in%20Delhi%20in%201972.
  4. History of Criminal Psychology, Criminal Justice, available at: http://criminal-justice.iresearchnet.com/forensic-psychology/history-of-forensic-psychology/criminal-psychology/
  5. Addressing Transgressions: types of criminal punishments, available at: https://online.pointpark.edu/criminal-justice/types-of-criminal-punishment/
  6. What criminal psychologists do, Kendra Cherry, October 13th, 2020, available at: https://www.verywellmind.com/criminal-psychologist-a-career-profile-2795649
  7. Applied Criminal psychology forensic behavioral, ed by Richard N. Kocsis.
  8. Concept of recidivism in criminal law, Legal service India, Subha Sattwa Bandyopadhyay, available at: http://www.legalserviceindia.com/legal/article-792-concept-of-recidivism-in-criminal-law.html
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ARTICLE 21 AND SUBSISTENCE ALLOWANCE; By Mufaddal Paperwala, Legal Asst., Prime Legal

INTRODUCTION

India has the world’s second largest population with an approximate total of 138 crores [1]. With such a large population India produces a huge work force i.e. skilled and unskilled labour for many industries and factories. Hence it is very important to have proper labour legislations in place to protect the rights of the workmen working at different industries. The Constitution of India under the Seventh Schedule in the Concurrent list empowers both the Central and State government to make legislations on labour and employment. Therefore, there are more than 100 legislation in India enacted either by the Central or State government based upon different subjects like industrial relations, wages, social security, conditions of service and employment, code of conduct and various other matters [2]. Further, the Central Government has recently carried out a major reform to the labour laws by passing three bills i.e. the Occupational Safety, Health And Working Conditions Code, 2020; the Industrial Relations Code, 2020; and the Code on Social Security, 2020. The three codes merge 24 legislations passed by the Central Government [3]. The main objective to carry out the reform is to have uniform laws and to limit the chances of overlapping provisions.

In this paper we are primarily going to discuss about subsistence allowance and its importance under Article 21 of the Constitution. Subsistence allowance is an allowance under which a particular percentage of the entire wage is provided to the workmen by the employer during the period he is suspended from his employment due to an investigation pending against him for any misconduct or wrongful activities carried out by him. The allowance is paid in order to fulfill his and his family’s basic means of livelihood. The Supreme Court and the High Courts have adjudicated upon cases involving ‘subsistence allowance’ and have considered it as a right of a workman under Article 21 of the Constitution. Hence in this paper we are going to discuss about the legal provisions regarding subsistence allowance in India, a brief history of how the courts have dealt with cases involving ‘subsistence allowance’ and have they considered it to be part of a employee’s wage, the importance of the allowance towards the workman and lastly carry out a brief discussion on the question that if subsistence allowance is considered as a right under Article 21 of the Constitution why is it only available to a few class of workmen and employees working in the industry.

RGULATIONS FOR SUBSISTENCE ALLOWANCE IN INDIA

The provisions for subsistence allowance in India is under section 10 A of the Industrial Employment (Standing Orders) Act, 1946. The provisions of the act clearly state that if there are disciplinary proceedings carried out against a workman and he has been suspended from the industry then in such cases the workmen is entitled to an allowance of 50% of his wage preceding the date of suspension for a period of ninety days. Further, the workmen is entitled to get an allowance of 75% of the wage in case of further delay which is not caused due to the conduct of the workmen. A maximum of 180 days should be permitted to complete the disciplinary proceedings. In case of any dispute regarding the subsistence allowance between the employer and the workmen either of the parties can approach the Labour Court within the jurisdiction of the parties. Lastly, if there are any provisions given under the State Legislations that are more beneficial then such provisions should be followed. [4]

As the Central government has made an amendment to the Labour laws and passed 3 new codes, provision for subsistence allowance has been included under the Industrial Relations Code, 2020. Under Section 38 of the Code the provision has been included and is same as the previous provision under the Industrial Employment (Standing Orders) Act, 1946. The only addition that has been included under the code is that a time limit for completion of the disciplinary or investigations should be within a period of 90 days. [5]

The State governments also have provisions for subsistence allowance in their respective legislations and can be applied and availed as and when required.

IS SUBSISTENCE ALLOWANCE CONSIDERED AS A WAGE?

There has been a lot of controversy on the above stated question as different High Courts have different opinions and hence there has been a lot of debate on the question that is subsistence allowance considered as a wage. There are two schools of thoughts that have originated from different set of judgments of the High Court. One school of thought is of the opinion that subsistence allowance cannot be considered as a wage as the employee gets a wage when he in turns fulfills his obligations under the contract signed with the industry i.e. to carry out his set of duties/work and so if he is suspended and has not carried out his part of the contract he is not entitled to any wage. On the contrary another school of thought is of the opinion that even though the contract is not performed by the workmen, the contract has not been suspended and the workmen is still under employment of the Industry and so he is still a part of the industry and has not been terminated therefore he will be entitled to wage/pay as defined under the Payment of Wages Act, 1936. [6]

The set of judgments that do not consider Subsistence Allowance as a wage are as follows – Management of Kirloskar Systems Ltd. [7], the court in the case stated that the remuneration i.e. allowance that was paid to the employees could in no way be considered as a wage as the contract of employment was not fulfilled. Further the court was of the opinion that as the workmen have been suspended as a result of their own misconduct or acts and hence it would be totally wrong to consider subsistence allowance as a wage. In another case of Orissa Road Transport Company Ltd [8], the court looked into definition of wages under the Payment of Wages Act 1936. After analyzing the definition, the court held that subsistence allowance cannot be considered under the definition of wages. Lastly in the case of Karnataka Central Co-Op Bank Ltd. [9], the court reiterated the above opinion and further stated that the allowance that is given to the workmen is to survive during the proceedings and fulfill the bare minimum needs of his and his family. Hence, as no service or work is carried by the workman as given under his contract of employment subsistence allowance cannot be considered as a wage.

On the other hand, several high courts while adjudicating upon cases are of the opinion that subsistence allowance has to be considered as part of wage. One of the landmark judgments of Leaf Spring Manufacturing Co. (Pvt.) Ltd [10], laid down that subsistence allowance is part of the wages. The court analyzed the definition of wages under the Payment of Wages Act and was of the opinion that the definition of wages is comprehensive and includes allowances. Therefore, a harmonious reding of Section 10 A of the Industrial Standing orders read with the definition of wages under the Payment of Wages Act will include subsistence allowance within the ambit of its definition. Further, the court emphasized upon the fact that the workman still was a part of employment under the industry and his contract was temporarily suspended hence subsistence allowance should be considered as a part of the wage.

The Supreme Court adjudicated on an appeal which included the question of subsistence allowance to be considered or not be considered as a part of wage. The landmark case of Employee State Insurance Corporation of India v. M/s. Popular Automobiles [11], clarified on the above question. In this case the suspended employees and employer were made liable to remit contributions under the Employee State Insurance Act. The contributions had to be made were from the subsistence allowance that were paid during the time of domestic investigation was being carried out against the employees. The question that arose was whether subsistence allowance a part of the wage to determine the liability of the employee and employer with regards to Insurance Act. The Kerala and Karnataka High Court were of the view that the allowance does not constitute as a wage under section 2(22) of the Act. The Supreme Court overruled the rulings of the High Court and was of the opinion that subsistence allowance does form part of a wage and the employees and employer will be liable to make contributions under the act. A major part of the ruling of the Supreme Court revolves around the relationship of the employee and employer during the period the employee has been suspended. The Court states that even if there is trial going on against the employee and he is suspended from the industry that does not terminate the relationship of the employee and employer. It is only when the trial is concluded and the employee is terminated the contract between the employee and employer will cease to exists. Until then the employee will still be a part of the industry and the subsistence allowance that is paid to him will be considered as a part of his wage.

Hence, the landmark judgment of the Supreme Court lays down the law that subsistence allowance is considered as a part of the wage.

RELATIONSHIP BETWEEN ARTICLE 21 AND SUBSISTENCE ALLOWANCE

Article 21 of the Constitution is one of the most important fundamental right imbedded in the Constitution. Article 21 states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[12] Article 21 includes the ‘right to livelihood’ under ‘right to life’. This is because if a person is deprived of the means of basic livelihood like food, shelter and water he would not be able to survive and this would directly violate the fundamental right under Article 21 of the Constitution. Hence, in the case of Olga Tellis [13], the Supreme Court stated that ‘right to life’ includes the ‘right to live with dignity’. Further, Article 21 of the Constitution is not only available to all the citizens but is available to all “persons” in the country and hence that includes individuals who belong to another nationality and are residing in India. [14]

The question that arises here is that what can be the relationship between Subsistence Allowance and Article 21 of the Constitution. Referring to the Supreme Court’s landmark judgment in the case of O.P. Gupta [15], the Supreme Court defines the expression of ‘subsistence allowance’. It states that the expression of the word ‘Subsist’ is defined in the Oxford English Dictionary as “to remain alive as on food; to continue to exist”. “Subsistence” means-means of supporting life, especially a minimum livelihood.” Hence the provision of subsistence allowance is given to the employees of the company to survive and fulfill their basic necessities during the period they are suspended from working in the industry. It is also provided to the employees so that the proceeding against the employee can be conducted fairly, and they adequately represent themselves through an expert or attorney in the proceedings if required. Therefore, ‘Subsistence Allowance’ is very essential to the employee as it is a means of livelihood for them

The Supreme Court and the High Court in a set of case laws have stated the relationship between Article 21 of the Constitution and ‘Subsistence allowance’ [16]. In the case of A.K. Bindal [17], the court states that if an employee is suspended it would be impossible for an employee to survive and fulfill his basic needs. This would violate the right to life under Article 21 of the Constitution which includes a right to live with dignity under it. It further stated that, “Right to life enshrined in this Article means something more than survival or animal existence.”[18] Hence non-payment of subsistence allowance is a violation under Article 21 of the Constitution. Further, in the case of Shankarla [19], the Supreme Court reiterated the above stated phrase and further said that Subsistence allowance is not a bounty and is a right under the constitution. Recently, in the case of M. Elango [20], the Madras High Court was dealing with the issue of non -payment of subsistence allowance to government employees during the period of suspension. The court in the case held that a denial to pay subsistence allowance is an violation of Article 21 of the Constitution.

Hence, we can clearly observe that the right to subsistence allowance is a fundamental right of an employee and covered under Article 21 of the Constitution.

IS SUBSISTENCE ALLOWANCE AVAIALABE TO ALL THE EMPLOYEES IN THE INDUSTRY?

The provision of Subsistence allowance is defined under Section 10 A of the Industrial Employment (Standing Orders) Act, 1946. Under the said section it is clearly stated that ‘workman’ employed in an industry are entitled to the right of subsistence allowance as per the percentage fixed in the legislation. Closing analyzing the definition of ‘workman’ given under Section 2 (s) of the Industrial Disputes Act, 1947, it seems that only a set of employees in an industry are entitled to the provision of subsistence allowance. The definition of ‘workman’ has been interpreted by the Supreme Court in a set of judgments [21] which state that some of the main factors to consider if an employee is covered under the definition of workman are – i. Existence of a master-servant relationship, ii. Nature and the kind of functions performed, iii. The kind of work is either manual, skilled, unskilled, technical operational, clerical or supervisory in nature iv. Mode of recruitment, source of employment, designation, contract, terms of employment, amount of wage are some of the other factors that need to be considered. Further, the court in these cases laid down that persons that are carrying out purely managerial and supervisory work are not covered under the definition of ‘workman’ [22]. The reason being that the persons working as mangers or supervisors have implied powers of hiring and firing, granting of leaves and participation in the business policies. Therefore, as per the definition under Section 10 A of the Industrial Employment (Standing Orders) Act, 1946 only a specific set of people who come within the definition of ‘workman’ under the Act are entitled to the provision of subsistence allowance. But as stated above in a series of case laws that subsistence allowance is considered as a right under Article 21 of the Constitution. Hence, will it be fair to draw a distinction between employees of a factory who will be entitle to the provision of subsistence allowance.

Article 21 of the Constitution is a basic right that is available to all persons in India and if the Supreme Court of India has mandated the ‘right to live with dignity’ as a right to life all the employees of a industry should be entitled to get the provision of subsistence allowance. But there is no legislation as such that mandates the right of subsistence allowance to all the employees of the industry/factory. The only reason that the Supreme Court has emphasized on subsistence allowance being a right under Article 21 is to ensure that an employee could survive and meet basic expenses for livelihood. Hence, if the allowance is not granted to employees working in a managerial position or supervisory position it would be difficult for them to survive as well because even, they rely on their salaries and that is the only source of income for them to meet their basic and necessary expenses. If during the period they are suspended and are not paid any allowance their right to live with dignity would be affected. This also leads to discrimination among the employees of the industry. It would be a violation of Article 14 of the constitution which deal with equality. Even though under certain circumstance based on intelligible differentia there can be differential treatment given under certain circumstance, [23] the act of not providing subsistence allowance to a set of employees will not qualify under the exception. As there is no reasonable nexus between the discrimination and it is not based on intelligible differentia because the right to live with dignity is a right available to every person and any violation based on it would be against the principles of the Constitution.

But the recent case law of M. Elango [24], by the Madras High Court has laid the foundation to prohibit any such violation under the Constitution. In this case as the secretary of a Cooperative Society was suspended for several irregularities. During the period he was suspended he was not paid any allowance because he was working in a managerial and administrative capacity and hence did not qualify as a ‘workman’ under the definition of the act to avail the right of subsistence allowance. Hence, filed an appeal in the High Court. The court was of the opinion that every person working under an industry has to fulfil his basic needs and if during suspension of his employment he is not paid any allowance he will not be able to sustain himself therefore every employee is entitled to such allowance through which he can sustain himself and fulfill his basic needs.

Therefore, there is strong need for the Supreme Court of India to take a suo-moto action to clarify the discrepancy in the labour legislation and recommend the Parliament to make certain amendments to the provisions to mandate a certain percentage or sum to every employee as subsistence allowance during the period he is suspended from his employment.

CONCLUSION

Subsistence Allowance is a basic necessity that every employee of an industry needs to survive on and carry out his means of livelihood.  That is the reason the Supreme Court has considered the right of subsistence allowance under Article 21 of the Constitution. Hence, it will be unfair and against principles of the Constitution if only a particular set of employees get the provision of subsistence allowance as wage/pay or salary is an integral and important part of an employee’s survival and if they are not given the same their right to live with dignity will be violated. Further, under the amendment of labour laws, the provision of subsistence allowance is no covered under Section 38 of the Industrial Relations Code 2020. Under the provision the right to subsistence allowance is provided to all workers in the industry. Section 2 (zr) of the Code defines the term ‘workers’ and the Parliament has made an effort to make the section extensive and include a large category of people. However, the code does not specify whether the employees carrying out managerial/administrative/supervisory work are entitled to subsistence allowance or not. Hence, it is very important that the Parliament takes note of the discrepancies with the provisions of subsistence allowance and make an amendment to the Section and add a proviso to the same including all employees of a factory to be entitled to the provision of subsistence allowance in case of suspension or issue guidelines with respect to the provision of subsistence allowance to be made available to employees of industry.

REFERENCES

  1. “India’s Population ”(Worldometer) <https://www.worldometers.info/world-population/india-population/>
  2. Sinha S, “An Overview of Labour Laws in India” (IPleaders, October 2018)<https://blog.ipleaders.in/labour-laws-in-india/
  3. Haq Z, “Understanding the New Labour Codes” (Hindustan Times, 24 September 2020 <https://www.hindustantimes.com/indianews/understanding-the-new labour-codes/storyllI015EZK8EYtDHmP9SXVP.html>
  4. Industrial Employment (Standing Orders) Act, 1946, Section 10 A
  5. Industrial Relations Code, 2020, Section 38
  6. Dutta S, “Is Subsistence Allowance a Wage?” (1999) 35 Indian Journal of Industrial Relations98<https://www.jstor.org/stable/pdf/27767637.pdf?refreqid=excelsior%3A766dc22bacdbef72ba611795a2ca5765>
  7. ESIC Vs. Management of Kirloskar Systems Ltd., (1985 I LLJ 173)
  8. Orissa Road Transport Company Ltd. Vs. Narayan Parida & Anr., (1986 I LLJ 270)
  9. Karnataka Central Co-operative Bank Ltd. Vs. Karpi, (1987 I LLJ 197)
  10. Indian Leaf Spring Manufacturing Co. (Pvt.) Ltd. Vs. Appellate Authority under Payment of Wages Act, (1993 I LLN 833)
  11. Employees State Insurance Corporation Vs. M/s. Popular Automobiles etc., (1997 II CLR 1003)
  12. Constitution of India, Article 21
  13. Olga Tellis & Ors Vs. Bombay Municipal Council, 1986 AIR 180
  14. Jain R, “Article 21 of the Constitution of India – Right to Life and Personal Liberty” (Academike, 13 November 2015) &lt;https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/&gt;
  15. O.P. Gupta Vs. Union of India and Ors., (1988) I LLJ 453 SC
  16. Fakirbhai Fulabhai Solanki Vs. Presiding Officer and Anr., (1986) II LLJ 124 SC, Ram Lakhan and Ors. Vs. Presiding Officer and Ors., (2000) 10 SCC 201, State of Maharashtra Vs. Chanderbhan Tale, (1983) II LLJ 256 SC.
  17. A.K. Bindal & Anr. Vs. Union Of India & Ors., (2003) 5 SCC 163
  18. A.K. Bindal & Anr. Vs. Union Of India & Ors., (2003) 5 SCC 163 [18]
  19. State Government Of M.P. & Ors Vs. Shankarlal, [2007] Insc 72
  20. Registrar the Co-operative Society N.V. Natarajan & Ors. Vs. M. Elango, 2020 SCC OnLine Mad 384
  21. Chintaman Rao Vs. State of Madhya Pradesh AIR (1958) SC 358, John Joseph Khokar Vs. Bhadange B. S. & Ors 1998 (1) LLJ 447 (Bom), Kirloskar Brothers Ltd. Vs. Respondent: The Presiding Officer, Labour Court, Delhi and Anr., [1977(34)FLR206], Devinder Singh Vs. Municipal Council, (2011) 6 SCC 584, Delta Jute & Industries Ltd. Staff Association and Ors. Vs. State of West Bengal and Ors, 2015 (145) FLR 105, Burmah Shell Oil Storage and Distributing Company of India Ltd. and Anr. Vs. Burmah Shell Management Staff Association and Ors., A.I.R. 1971 S.C. 922.
  22. Delta Jute & Industries Ltd. Staff Association and Ors. Vs. State of West Bengal and Ors., 2015 (145) FLR 105
  23. Dr. Saurabh Choudhary & Ors. Vs. Union Of India & Ors., AIR 2004 SC 2212
  24. Registrar the Co-operative Society N.V. Natarajan & Ors. Vs. M. Elango, 2020 SCC OnLine Mad 384
0

ONLINE BETTING: AN INDIAN LEGAL PERSPECTIVE; By- Yusra Raouf, Legal Asst., Prime Legal

Introduction

The practice of betting for amusement and an explicit desire to make effortless money is present in the annals of Indian history. The ancient scriptures [1] of the land validate this fact where it has been commanded from divine sources to abstain [2] from indulging in games like these for reasons of immorality and sin. The mode adopted for playing has however transformed over time due to external influences like digitization and the spread of the internet. Online betting is now perhaps the most prevalent form of gambling. The extent of the growth of its online presence could be analyzed by trends of betting in the gaming community [3]. A study done in the year 2017 [4] suggested that by 2021 growth of the online gaming industry in India (such as online poker, online rummy, and fantasy sports) will amount to One Billion Dollars. 

But what could be the possible ramifications on the economy and socio-political structure of the country when an activity of that scale goes unregulated by the law? To explore this, we must have a fair understanding of the existing legal and regulatory framework in place that governs online betting in India.

Legal Framework of online betting games            

At present, gambling in India is regulated amongst others, by the Public Gambling Act in the year 1867 [5]  formulated by British Indians who were wary of the gambling culture among Indians. Gambling in common parlance refers to winning or losing (usually) an extravagant amount of money based on some fortuitous event [6]. Online gambling (or online betting as it is called) on the other hand has the same elements unless it gets incorporated with a new dimension of ‘gaming’. There is a blurred line between the definitions of online betting and conventional gambling and this confusion also translates itself into the legal sphere.

In addition to this, the state legislators are, by the Seventh Schedule (Entry 34, List II) of the Constitution of India, given exclusive powers to make laws for betting and gambling. When a specific amendment by the state is promulgated in this regard, the parent act can be repealed for that particular state. 

Legal discussions around online betting usually revolve around two terms associated with it. One is ‘games of skill’ and the other is ‘games of chance’.

Definition of games of skill, according to the courts in various judgements ,involves certain parameters being a developed strategy, physical coordination, technical expertise and knowledge. It is an exercise upon known rules and fixed probabilities.[7].

Now the second ingredient which is physical co-ordination is the thing that separates sports gambling from online betting in games such as Rummy, Poker, and Fantasy sports games. This is also the area of legal jurisprudence whereupon courts have not commented with clarity. Thus online betting and online gaming are not well defined till this time. The courts don’t seek to give a practical explanation to the difference underlying between the two categories of games and have instead propounded a very basic principle which is- games where chance dominates over skill are prohibited while games where skill dominates over chance are permitted [8].

So even when gambling has been prohibited by most states, we see that online games somehow accommodate betting under the pretext of ‘games of skill’ making them legal. It must be noted that these games of skills have a huge element of chance that is overlooked. The thin line between these two implies that as long as online games have some element of skill involved, it cannot be regulated under the gambling act. What this clearly indicates is that our judicial machinery must help interpret and provide a reliable definition of gambling in the digital world.

Landmark judgements that interpret Online Betting

In State of Andhra Pradesh v. K. Satyanarayana & Ors [9], the same court while holding that the card game – “Rummy” is not a gambling activity. It stated that the game of Rummy had in itself an ingredient of skill and this can be understood if one studies the way the game is played. Anyone well versed with the functioning of the game will know that success in the game is dependent on good memorizing skills. In Rummy the player, in order to gain victory, should be acquainted with the correct sequence of holding and then discarding the cards. Keeping this in mind the court held that it is mainly a game of skill.

In  State of Bombay v. R. M. D. Chamarbaugwalal [10], the Apex Court held that gambling convers those games defined under the central act and state acts respectively. But when a significant degree of skill is involved in that game, it cannot fall under the purview of gambling even if there is element of chance. Again the aspect of preponderance comes in to picture and it is said that as long skill is the dominant factor, it cannot be categorized as game of chance.

In M.J. Sivani & Ors. v. State of Karnataka [11], the Apex Court observed that a player who is skilled might be either lucky or unlucky. The emphasis here was about preponderance of chance over skill. If the element of chance supersedes that of skill, it cannot be a game of skill. The court then said that it would be impracticable to decide whether a game is game of skill or of chance. It is a subjective case and depends solely on the facts of that instant case.

The Apex Court once again explored the meaning of ‘games of skill’ in Dr. K.R. Lakshmanan v. State of Tamil Nadu, where it stated games could either be of chance, of skill or of skill and chance both combined. The reasoning of these courts runs such that there only few games which consist purely chance or skill. They mean that the majority of games consist both elements and the test lies in determining which dominates the other. It is the element that holds more weight that finally decides the nature of that game.

Regarding the game of Poker, the Bangalore High Court held that the license is not contemplated if played as a game of skill in Indian Poker Association v. the State of Karnataka [12].

Government Bodies and Online Betting

Regulatory bodies are fundamental to any sphere of activity that impacts a large number of people. Unfortunately, there is no neutral body to regulate these online gaming companies. The individual industrial bodies are given a lot of autonomy as a result of which they are not accountable to any supervisory head. This gives them the power to function at their own whim and fancies. Such a situation proves to be most problematic when the public has to suffer after getting lured by false and misleading advertisements.

Certain bodies like the AIGF have already expressed their concerns and also requested the Prime Minister to direct the Enforcement Directorate to investigate and take action against offshore betting websites. These sites are responsible for illegally offering Indian citizens and accepting bets from India. This is in contravention of the Information Technology Act and Foreign Exchange Management Act.

Further, a rough analysis of law commission reports on gaming laws reveals that even though a lot of debates and deliberations have taken place around the concept of online gaming, it is still insufficiently clear to meet the needs of gaming investors who want to ensure compliance with laws of the land.

The Sports (Online Gaming and Prevention of Fraud) Bill, 2018[13] is a classic example to show how the mindset of Indian legislators have started to incline towards stricter regulation of online games. States like Andhra Pradesh have already begun considering the option of including online games in the state Gaming Act.

On the other end of the spectrum, it is said that talks between the Ministry of Youth Affairs and the Government of India to completely legalize online games are on the way[14]. Also, the NITI Aayog’s guiding principles reveal the good intent from the government and give hope that this will pave way for some real legislative work in the field of online gaming.

Way Forward

An Amendment to the existing act is the easiest way to remove the anomalies and create clarity in the interpretation of online gaming vis-à-vis betting. Accordingly, a commission should be constituted to move things in the right direction.

Like every other huge policy change, the country must be ready to withstand the requirements that come along. India needs to create a comprehensive plan for implementation and regulation of the whole system of online gaming before legalization. The outcome of an otherwise scenario would be disastrous for both- the government and the public at large. 

 

 

References:

[1] Mukhia, H. Medieval Indian history, and the communal approach. In Thapar, R, Mukhia, H, Chandra, B, eds. Communalism and the writing of Indian history. New Delhi: Penguin Books, 1969.

[2] Singh, NS. HH Wilson’s Translation of the Rig Veda Samhita 2nd ed. Delhi: Nag Publishers, 1990.

[3] Should Gambling Be Legalized in India?

Sanju George, Richard Velleman, Benedict Weobong

https://journals.sagepub.com/doi/full/10.1177/0253717620928761 

[4] KPMG Google. Online Gaming in India: Reaching a new pinnacle. https://assets.kpmg.com/content/dam/kpmg/in/pdf/2017/05/online-gaming.pdf

[5] Public Gambling Act, 1867

 https://www.indiacode.nic.in/bitstream/123456789/2269/1/AAA1867____03.pdf 

[6] OXFORD DICTIONARIES, OXFORD ENGLISH DICTIONARY (7th ed. 2012).

[7] India: Online Gaming And Gambling Laws In India by Vinay Vaish 

https://www.mondaq.com/india/gaming/350824/online-gaming-and-gambling-laws-in-india 

[8]Online Gaming In India: A Legal Puzzle by Akshay Sachthey  

https://www.livelaw.in/law-firms/articles/online-gaming-in-india-167719#_ftn2  

[9] AIR 1968 SC 825

[10] AIR 1957 SC 699

[11] AIR 1995 SCC 289

[12] WRIT PETITION NOS.39167 TO 39169 OF 2013

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/704683/1/WP23106-12-10-07-2012.pdf 

[13] http://164.100.47.4/billstexts/lsbilltexts/asintroduced/2415as.pdf 

[14]  Amitav Ranjan & Mihir Vasavda, Sports Ministry lays ground for making onling betting legal, THE INDIAN EXPRESS, (July 16, 2017),

http://indianexpress.com/article/sports/sports-ministrylays-ground-for-making-online-betting-legal-4752604/

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Increase in Domestic Violence Cases in India during Lockdown

  • Introduction

Domestic Violence cases in India is no new story. It has been so long since we are experiencing Domestic Violence cases and its surge. Domestic violence in India represents an intriguing mystery: notwithstanding being the most omnipresent of fundamental basic freedoms infringement, it is likewise the most un-detailed and talked about issue. The firmly man centric standards and structure of conventional Indian culture, and the sharp differentiation among public and private life, have made the subject of domestic violence a complex and nuanced one, bringing about a long and enthusiastic battle for equity against the shocking practice. Theoretical reexamining and change encompassing the lawful arrangements against domestic violence has been the commitment of the continued campaign against the training by the Indian women development. The meaning of violence has advanced throughout the years to a degree it incorporates actual types of violence as well as passionate, mental, monetary, and different types of cold-bloodedness. Consequently, the term domestic violence incorporates acts which damage or imperils the wellbeing, security, life, appendage, or prosperity (mental or physical) of the person in question, or will in general do as such, and incorporates causing actual maltreatment, sexual maltreatment, boisterous attack, psychological mistreatment, and financial maltreatment, executed by any individual who is or was in a domestic relationship with the person in question.

  • History of Domestic Violence

The women development in India is followed from the beginning of the 1970s, when the issue of sexual orientation started to pick up footing and perceivability as an issue separate from different concerns, deserving of being handled itself. In any case, the women’ development in India is really a far more established marvel, having its underlying foundations in the Indian patriot development, going back to the mid-1920s. The Indian women’s movement, from the 1920s until the 1970s, was intensely impacted and coordinated by the outer financial and political powers of the country, such that women’s issues were viably sidelined, failing to occupy focal worry in the psyches of individuals. The time frame from the 1920s until Independence saw the imbuement of the women’s development with patriot legislative issues, its forms molded by the on-going battle for independence from British government. This period, from the 1920s to the 1970s, was described by the commencement of different neighborhood women’s affiliations, for example, the Bharat Stree Mahamandal and the Arya Mahila Samaj. These affiliations were barely of political nature; rather than addressing sexual orientation jobs, they coached women in child-care, behavior, sewing, serving tea and so forth at the public level, women’s affiliations, for example, the National Council for Indian Women and the All-India Women’s Conference were more impending concerning policy driven issues, their exercises running across noble cause, requesting of fore casting a ballot rights and child marriage change. These were, in any case, basically city-based and tip top in piece, with scarcely any premise in mass enrollment.

  • Legal Aspects

The push of the women’s development during the 1980s was on administrative change. Instances of assault, viciousness, and settlement related wrongdoings, notwithstanding debates over the Shah Bano case and the Uniform Civil Code, featured the requirement for laws that uniquely tended to women’s issues.1 Though the term ‘aggressive behavior at home’ did not exist in legitimate speech till 2005, a stage toward its was made in 1983 with the selection of sections “498A”[1] and “304B”[2] of the Indian Penal Code. The enactment of 498A made savagery towards spouses a non-bailable criminal offense culpable with as long as five years in jail. 304B made settlement passing an offense with at least seven years extendable to life detainment if the culprit was seen as liable. Indira Jaising depicts Section 498A as ‘strong’ (Jaising, 2014). For one, it presented criminal offenses in personal connections, which hitherto were considered past the span of the law, and two, since savagery was not restricted to the interest for settlement alone nor kept to actual mutilation or injury however stretched out additionally to mental brutality. (Jaising, 2014) Additionally, the offense was made cognizable, which implied that a capture could be made without a warrant from a justice. Four sorts of ‘pitilessness’ were perceived by the article: lead that is probably going to drive a lady to self-destruction; direct which is probably going to make grave injury the life, appendage or soundness of the lady; provocation to compel the lady or her family members to give some property; badgering in light of the fact that the lady or her family members can’t respect requests for more cash or doesn’t give some property. Section 498A, however a milestone in the women’s development, confronted analysis on various records concerning the degree it checked the issue of savagery against women. The term ‘savagery’ was felt to be prohibitive, avoiding with regard to its ambit monetary and sexual brutality. The law likewise left out instances of brutality happening inside the natal home of a lady. Also, the Family Courts Act of 1984 moved ‘savagery’ cases from the ward of officer courts to under that of family courts with the end goal that women could settle separation and upkeep continuing under one roof. The dominating idea overseeing family courts was the ‘insurance of the family structure’ and not discipline. Henceforth, a specific level of savagery was approved in such cases to shield the family from self-destructing. The significant deficiency of 498A was anyway the suitability of its execution. The designers limited the trouble women looked in moving toward the police for recording the principal data report (FIR), as the specialists were hesitant to do so given their own ethical biases and confidence in the regularity of abusive behavior at home. Despite the fact that the quantity of revealed cases under these punitive arrangements expanded with each progressive year, the equivalent didn’t have any significant bearing for the pace of feelings. An investigation led by the Center for Social Research, Delhi (CSR 2005), uncovered rather upsetting discoveries. Out of 100 cases which were requested for examination under Section 498A, just in two cases did the charged get indicted. The lone cases which finished in conviction were those where the lady had kicked the bucket and the case under Section 498A was enlisted alongside Section “304B”[3] (share passing) or “Section 302”[4] (murder). There were no feelings in any of the cases enlisted under Section 498A alone. Without substantial advantages following out of the enactment, it was difficult to have confidence in its viability.

  • Domestic Violence Act of 2005

For the protection of women from Domestic Violence, the “Protection of Women from Domestic Violence Act of 2005”[5] was enacted. Prior to the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the casualty could move toward the court under Section 498-An of the Penal Code, 1860 which accommodates ‘spouse or relative of husband of a lady exposing her to cold-bloodedness’ wherein just a specific arrangement of offense managing remorselessness to wedded women was the lone plan of action. Any remaining cases of domestic violence inside the family unit must be managed under the offenses that the particular acts of violence established under the IPC with no respect to the sex of the person in question.

To limit the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to shield the women from acts of domestic violence. The legislative expectation was additionally stressed by the Supreme Court of India on account of “Indra Sarma v. V.K.V Sarma,”[6] wherein it was expressed that the DV Act is enacted to provide a cure in civil law for the protection of women, from being victims of such relationship, and to prevent the event of domestic violence in the general public. Different enactments like Cr.P.C, IPC, and so on, where reliefs have been provided to women who are put in vulnerable circumstances were additionally talked about. The objective of the Act sets out “An Act to provide for more effective protection of the privileges of women ensured under the Constitution who are victims of violence of any kind happening inside the family and for issues associated therewith or coincidental thereto.”[7] The Madras High Court in “Vandhana v. T. Srikanth,”[8] out of one of the early cases since the enactment of the DV Act, observed that the Act was detailed to execute Recommendation No. 12 of United Nations Committee on “CEDAW, 1989”[9] and which was endorsed by India in June, 1993. Understanding of the DV Act ought to adjust to global conventions and worldwide instruments and standards. The Bombay High Court on account of “Ishpal Singh Kahai v. Ramanjeet Kahai,”[10] repeated that the object of the DV Act is to concede legal protection to victims of violence in the domestic area who had no exclusive rights. The Act provides for security and protection of a spouse irrespective of her restrictive rights in her home. It targets ensuring the spouse against violence and at the protection of repeat of acts of violence. As indicated by the provisions of this Act, any aggrieved lady who is in a domestic relationship with the respondent and who claims to have been exposed to the act of domestic violence by the respondent can seek help. A lady can document a grumbling against any grown-up male culprit who submits an act of violence. She can likewise document a grumbling against any male or female relatives of the spouse/male accomplice (for instance in a live-in relationship) who has executed violence. The Supreme Court in “Hiral P. Harsora v. Kusum Narottamdas Harsora,”[11] struck down grown-up male from the meaning of “respondent” expressing that it did not depend on any understandable differentia having sound nexus with object tried to be achieved. The Supreme Court likewise clarified in the said case that the classifications of people against whom cures under the DV Act are available incorporate women and non-grown-ups. Articulation “respondent” in “Section 2(q)”[12] or people who can be treated as culprits of violence against women/against whom cures under the DV Act are actionable can’t be confined to articulation “grown-up male individual” in Section 2(q). Consequently, cures under the DV Act are available even against a female part and furthermore against non-grown-ups.

  • Domestic Violence cases during lockdown

With a quick expansion in the quantity of COVID-19 cases across the world in the previous few months, several worldwide associations took cognizance of a worldwide ascent in Domestic Violence (DV) cases because of physical removing guidelines and its resulting lockdowns. Numerous nations revealed a 15-30% hike in the quantity of misery calls received from women who were limited in shut spaces with abusive accomplices. Studies, over the years, have demonstrated an immediate link between seasons of emergency like these and relational violence. Pandemics provide for an empowering environment of dread and vulnerability that may fuel diverse types of violence against women. Moreover, monetary uncertainty, monetary shakiness, and confinement are additionally a portion of the factors that add to making domestic violence even more prevalent. Sadly, domestic violence cases are underreported across the world, particularly in the midst of worldwide crises like COVID-19. Women overall think about casual channels as their first purpose of-revealing on account of domestic violence. Because of lockdown limitations, the pressure of being bound with one’s victimizer and monetary requirements, it has gotten progressively hard for women to get to help against domestic violence. Various social workers and legal counselors have featured the confined admittance to protection officers as a reason for concern, and have proposed that the work of protection officers, advising and emergency focuses should be proclaimed as basic services. “The principal respondent is often the family and the police the last. In India, the National Family Health Survey-4, directed in 2015-16, revealed that 33% of wedded women in the age gathering of 15-49 experienced physical, sexual, or passionate spousal violence. Of these women, just 14% looked for help and 77% never spoke about it. Among the individuals who looked for help, 65% answered to the natal family and simply 3% answered to the police.”[13] The arrangement of COVID-19 lockdowns in India decreased the chances of detailing of domestic violence cases. Here’s the reason:

  1. Confined movement: The lockdown crippled women by preventing them from moving to more secure spots in instances of violence and misuse. With people living together for longer periods, the privacy of women plunged, and occurrences of violence rose.
  2. Impaired vehicles of correspondence: The WhatsApp number dispatched by the NCW had a restricted reach as just 38% of women in India own telephones and less have a web association, making this stage unavailable to lion’s share of women in the nation.
  3. Diminished contact with the natal family: Natal family is typically the principal purpose of contact for the victim. They are not just fundamental in supporting the victim in recording a protest yet additionally encourage documenting of grumblings to the police. The steady presence of the culprit made it hard for the victims to contact their first respondent which at last discouraged them from answering to organized channels.
  4. Unavailability of the proper emotionally supportive network: The apparatus under the Protection of Women from Domestic Violence Act had not been distinguished as a fundamental service during the lockdown. Henceforth, the protection officers couldn’t visit family units of victims, NGOs couldn’t have actual interactions with them and the cops being at the cutting edge in our work to tackle COVID-19 were overstretched to help victims effectively.

While the cross-country limitations have been loose, various state and local level lockdowns are invoked every from time to time, permitting the pandemic of domestic violence to grow close by. We should not count violence as a detriment to women as an inevitable result of an emergency yet improve the generally postponed strategy suggestions to address the circumstance.

  • Conclusion

In spite of the fact that the significant objective of this law, being to ensure the women against domestic violence has been made sure about, specific parts of the law actually stays to be developed. This law provides civil solutions for the victims of domestic violence. Under the steady gaze of enactment of this law, to seek any civil cures, for example, divorce, care of youngsters, orders in any structure or support, a lady just had the choice of taking response to the civil courts. Thus, the DV Act has surely achieved the required and fundamental change in the framework. In spite of the fact that the Act provides exhaustive solutions for counter the issue of domestic violence certain terms and its understanding requirements to develop. The Act misses the mark in providing any help to the male individuals in the network who are exposed to domestic violence, being one of the zones where the law misses the mark. However, it likewise should be viewed as that no wrongdoing can be canceled from the general public totally, it is just with rigid changes and system that it very well may be checked.

References

  1. Indian Penal Code 1860, Section 498A.
  2. Indian Penal Code 1860, Section 304B.
  3. Ibid.
  4. Indian Penal Code 1860, Section 302.
  5. Protection of Women from Domestic Violence Act, 2005.
  6. Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.
  7. Supra Note 3.
  8. Vandhana v. T. Srikanth, 2007 SCC Online Mad 553.
  9. Convention on Elimination of All Forms of Discrimination Against Women, 1989.
  10. Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412.
  11. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
  12. Protection of Women from Domestic Violence Act 2005, Section 2(q).
  13. National Family Health Survey (NFHS – 4), 2015-2016: India, INTERNATIONAL INSTITUTE OF POPULATION SCIENCES (IIPS) and ICF 2017.

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