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CASE SUMMARY: State (through CBI) v. S.J. Choudhary AIR (1996) 2 SCC 428

ABSTRACT OF THE CASE:
This narrative is the case summary of the judgment pronounced by the Supreme Court in State (through CBI) v. S.J. Choudhary; wherein the meaning of science and art was widened thereby overturning the ruling in the case of Hanumant v. The State of Madhya Pradesh. It was held that the opinion of an expert in the science of typewriting will be admissible in the case. The court continued, “A scientific analysis of some key characteristics of the typewriter that are distinctive to a particular typewriter and its individuality, which can be studied by an expert with professional expertise in the subject, is the basis for the examination of typewriting and identification of the typewriter used to type the contested document.” His perspective on that topic thus refers to a scientific issue that is covered by Section 45 of the Indian Evidence Act.

The court also pointed out that typewriting and handwriting both share the same basic principles for recognition. Because typing is distinctive to various persons and hence clearly discernible, the Indian Evidence Act, which is still in force today, permits the interpretation of science and art to include this talent. The Indian Evidence Act did not initially include typewriting since it was unheard of at the time it was created. The court reached the decision that the state’s appeal would be upheld and that the typewriter’s view would qualify as an expert opinion for purposes of Section 45 of the statute and constitute a material fact in the proceeding.

PRIMARY DETAILS OF THE CASE

Case No. Criminal Appeal No. 461 of 1987
Jurisdiction The Supreme Court of India
Case Decided On 13 February 1996
Judges J.S. Verma, G.N. Ray, N.P. Singh, Faizanuddin and G.T. Nanavati, JJ
Legal Provisions Involved Indian Evidence Act: Section 45

BRIEF FACTS OF THE CASE:

The appeal arose when the prosecution wanted to examine a typewriter expert for proof of certain incriminating facts against S.J. Choudhary based on the identity of the typewriter on which material document was alleged to have been typed. An objection was put forth by the respondent placing reliance on the case of Hanumant v. The State of Madhya Pradesh which was upheld by the trial court. In this case it was accepted by the court that the word science and art or handwriting will not cover typewriting as a different skill. 

The respondent was being tried on charges punishable under Section 302, IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 in Sessions Case No. 36 of 1983. He objected to the admissibility of the opinion of a typewriter who is an expert in the science of typewriting. The court, however, allowed the appeal of the state stating that the word science and art is wide enough to cover within itself the science of typewriting and the opinion of an expert in typewritings about the questioned typed document being typed on a particular typewriter is based on a scientific study of the typewriting with reference to the significant peculiar features of a particular typewriter and the ultimate opinion of the expert is based on scientific grounds. The opinion of a typewriter expert is an opinion of a person specially skilled in that branch of the science with reference to which the Court has to form an opinion on the point involved for decision in the case. 

ISSUE INVOLVED IN THE CASE:

Whether the opinion of a typewriter expert is admissible in evidence under Section 45 of the Indian Evidence Act, 1872 ?

LEGAL ASPECTS INVOLVED IN THE CASE:

  • Indian Evidence Act, 1872 
  • Section 45: Opinions of Experts– It states that the opinions of those who are particularly knowledgeable in such foreign legislation, science, or art, or concerns about the identification of handwriting or finger impressions, also referred to as specialists therein, are pertinent facts. By virtue of Section 45 of the Evidence Act, the opinion of such experts may be presented as important facts in evidence.

JUDGMENT IN BRIEF:

The court upheld the State’s appeal and overturned the Delhi High Court’s decision and the trial court’s admission of a typewriter’s skill under Section 45 of the Indian Evidence Act of 1872. According to the court, the mere mention of the word “Science” alone is enough to show that a person with specialised knowledge of typewriters would be an expert in this field, and his claim that he can identify a specific typewriter by the way he types will be taken into account as a relevant fact under the provisions of Section 45 of the Indian Evidence Act.

Overturning Hanumant v. The State of Madhya Pradesh, the court noted that typewriting was not specifically included in the Act at the time it was established since it was a relatively new science. But if the Court must develop a judgment about a matter pertaining to any area of science or art, the term “science and art” must be read broadly to include within its ambit the view of an expert in each discipline of these topics.

The honourable court also considered the many definitions and interpretations of the term “science,” taking into account resources like The Collins Dictionary and The Oxford Encyclopedia English Dictionary. It was determined that the definition of science clearly demonstrates that the skill or technique of examining the distinctive features of a typewriter and comparing the disputed typewriting with the admitted typewriting on a particular typewriter to determine whether the disputed typewriting was done on the same typewriter is based on a science study of the two typewritings with reference to their distinctive characteristics; and the expert’s opinion is based on recognised professional standards. And thereby, the view generated by a person having skill in that science is the opinion of an expert and is admissible under Section 45. 

The court also clarified citing authorities that an act is always taken to be speaking and in construing such an act the interpreter is to presume that the Parliament intended it to be applied in the future. The Indian Evidence Act being an ongoing act provides for the scope to constantly widen the ambit of the words included in the Act originally and interpret it in such a manner as to allow for any relevant changes with respect to social changes, technological advancements, the meaning of words and other matters that have occurred since the Act’s passing. 

The court next looked at the underlying concepts that both typing and handwriting identification of a person rely on. The investigation resulted in the conclusion that a typewriter gets more odd and recognizable to the user the longer it is used. The honorable court came to the judgment that typewriting identification is based on the same premise as handwriting identification or any other thing that has a lot of potential variants, further stating that a typewriter represents an individual.

The court concluded that the word science is wide enough to meet the requirement of treating the opinion of a typewriter expert as an opinion evidence coming within the ambit of Section 45 of the Evidence Act and allowed the appeal.

COMMENTARY

Upon a very keen observation it is clear that the judgment proves to be fruitful in determining the ambit of the words included in the Evidence Act 1872 and its interpretation with the changing dynamics of the law. The judgment of the court helps in determining the fact that what constitutes the opinion of an expert in typewriting and if it is admissible under the current law. The original Act that was passed in 1872 did not have the word typewriting embedded in it as a science or art as it was unknown at the time. With the evolution of technology and the advent of the science of typewriting it became important to widen the scope of the law to include such changes. The court rightly referred to ‘Photographic Evidence’ by Charles C. Scott Second Edition. Volume 1’ and observed that an ongoing law provides the scope to inculcate the relevant changes thus concluding that Section 45, Indian Evidence Act 1872 is wide enough in wording to include typewriting as a peculiar and distinctive skill thus allowing the admissibility of the opinion of an expert who is skilled in that science to distinguish the typewriting skill. 

AUTHORITIES REFERRED

  • Oxford Encyclopedic English Dictionary; 
  • New Shorter Oxford English Dictionary, Vol. 2; 
  • Collins Dictionary of the English Language; 
  • Photographic Evidence’ by Charles C. Scott Second Edition. Volume 1; 
  • Law of Disputed and Forged Documents by J. Newton Baker; 
  • Questioned Documents. Second Edition by Albert S. Osborn, page 598; 
  • Statutory interpretation by Francis Bennion, Second edition

CASES REFERRED AND OVERRULED

Hanumant v. The State of Madhya Pradesh  AIR 1952 SC 343 : 1952 SCR 1091

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JUDGMENT SUMMARY BY ADITI PRIYADARSHI

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Curtailed free speech.

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

                                                                                                                                                   – Oscar Wilde.

Free Speech in legal terms means, the legal right to openly express or seek ideas and opinions without fear of censure or legal repercussions Individuals have the right to express themselves in whichever way they want as part of their freedom of expression, which includes freedom of speech. Freedom of speech is one of the most important cornerstones of the democratic process, and it must be protected if we are to live in a society that is fair and equal for all. Failure to do so undermines democracy. Every time you publish a news piece on your social media channel, go to a rally or write to your local legislator about an issue that is important to you, you are exercising your right to free speech. The essence of free speech is that it molds and shapes public opinion, helps to bring about healthy discussions and discourses, aids in the better exchange of ideas and opinions, serves as a forum for debate and effective decision-making, and, in general, helps to develop stronger democratic institutions. In fact, many consider freedom of speech as an antidote against ignorance and corruption.

Article 19 of the Universal Declaration of Human rights states that everyone has the freedom to openly express their thoughts in whichever way they see fit. So, even the United Nations understands the importance of having free speech in the world. If so, why should it ever be restricted? Why should our voice be shut? In this article, we will try to find these answers.

HISTORY OF FREE SPEECH IN INDIA

One of the essential reasons for curtailing freedom of Speech is the fear of Sedition. This came as early as 1891 when Yogendra Chandra Bose was prosecuted. Bose, the editor of the Bang Obasi newspaper, authored an article denouncing the Age of Consent Bill for endangering religion and fostering a co-receive relationship with Indians. His article also addressed the harmful economic consequences of British colonialism. Bose was charged with breaching the bounds of acceptable criticism and stirring religious emotions. The judge rejected the defense’s claim that his article made no mention of revolt.

However, the charges against Bose were withdrawn after he apologized. Tilak, Bal Gangadhar Ironically, Indian nationalist leaders were involved in some of the most renowned sedition trials of the late nineteenth and early twentieth centuries. The most well-known of these is Bal Gangadhar Tilak’s three sedition trials, which were closely watched by his followers both nationally and internationally.

The infamous criticism awarded towards the restraining freedom of speech by a democratic nation is the imperialism ideology that only a colonial regime needs to fear the idea of free speech and expression and not the nation built in the roots of democracy.  

The Constitution of India Bill, 1895, is the first document that contains such a freedom of speech provision: it granted citizens the right to free speech but made them “accountable for abuses which they may commit in the exercise of this right, in cases and in the manner determined by the Parliament.”

The terms ‘public order’ and morality,’ which are employed in the Indian Constitution to limit freedom of expression, were first introduced in the Commonwealth of India Bill, of 1925. Almost all subsequent historical constitutions (except M.N. Roy’s Constitution of Free India, which guaranteed freedom of speech to all except ‘enemies of the people) used ‘public order’ and morality as staple restrictions in their articulations of a right to freedom of speech; these included: the Nehru Report, 1928, Karachi Resolution, 1931, Gandhian Constitution for Free India, 1946, States and Minorities, 1945, and the Socialist Draft Constitution, 1948.

‘Public order’ and morality are also cited as constraints on free speech in a variety of papers produced as part of the Indian constitution-making process, including individual submissions and committee reports, all the way up to the Draft Constitution prepared by the Constitutional Advisor. The term ‘public order’ was eliminated in the first Draft Constitution prepared by the Drafting Committee (‘morality’ was maintained) – this would be mirrored in the final version of the Constitution as accepted by the Constituent Assembly.

Interestingly, ‘public order’ was reinstated as a restriction on freedom of speech through the First Amendment to the Constitution in 1951, a little more than a year after the Constitution went into effect.

Looking through key papers from India’s constitutional history reveals that freedom of expression was never seen as an absolute right. Furthermore, there is a perpetual tension between the goals of balancing people’s freedom of expression with considerations of how to avoid situations originating from the abuse of the right. This was especially evident throughout the formulation of India’s constitution and the years immediately after it, when limits were deleted, reinstalled, and new restrictions were added to the constitutional wording.

THE LEGALITY OF FREE SPEECH IN INDIA:

It is no doubt that fundamental rights are inalienable to everyone, it is not the constitution giving us these rights but these inalienable rights which give rise to the constitution and the constitution is a tool to enforce these rights. The constituent assembly understood the need for freedom of speech for the functioning of democracy and hence they considered inserting freedom of speech as a fundamental right granted to every citizen.

Article 19 of the Indian Constitution grants its citizens the Freedom of Speech, but the freedom given to the citizens is restricted and curtailed by inserting the provision Article 19(2). Article 19(2) states that the rights granted can be reasonably restricted in the larger interests of the sovereign, security of the state, friendly relationship with foreign nations, public order, decency, or morality, contempt of court, defamation, or incitement of offense.

There are no separate legislations passed by the parliament that gives us separate provisions for enforcing our freedom of speech, but all we have are the judicial precedence and the law of the constitution and if the state unreasonably curtails this freedom, the aggrieved citizen can move directly to the supreme court and enforce their rights.

NEED FOR CURTAILING THE FREEDOM OF SPEECH.

Let us now get directly into the main agenda, why is our freedom of speech restricted? If they are inalienable to us, what right does the state especially a democratically elected one have to do so? What good is fundamental freedom of speech if they are restricted? How can such actions of a state be justified?

To answer all these questions, Firstly, we need to ask ourselves, does our freedom of speech give us the right to hurt, insult, or have a negative effect on others through our speech or expression? The answer would probably be ‘no’. Hence, the state makes limitations for curtailing such speech or expressions such as hate speech, defamatory articles or statements, etc.

Secondly, especially in a county like India where the nationalist movement was highly influenced by the independence struggle, the idea of ‘nation first’ was incorporated into the minds of everyone. This isn’t quite new as is quite common in most parts of the world, where the state is justified to protect the nation from threats and aggressions inside or outside the country.

PROTECTION FROM THE SUPREME COURT.

 Now that we have understood the common justifications for curtailing our freedom of free speech. Can the government call every policy that curtails our freedom of speech as a matter of national interest or security and completely take our fundamental right?

The answer is ‘no’. Every legislation or policy will be subject to the test of the constitution. If a particular legislation does encroach upon the fundamental right of a citizen, they can approach the Supreme Court under Article 32 of the Constitution and if the court does conclude that the legislation is not set on a reasonable parameter, they can strike down the legislation as a whole or that part of the legislation which curbs the fundamental right.

In the following Cases, the Supreme Court has upheld the fundamental right to freedom of speech:

  1. Romesh Thappar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC 124), was one of the first instances decided by the Supreme Court that declared freedom of the press to be a component of freedom of speech and expression. Patanjali Sastri, J., correctly remarked that “freedom of speech and press lay at the core of all democratic organizations, for without free political discussion, no public education, so vital for the effective functioning of the government process, is possible.”
  2. The case of Indian Express v. Union of India ((1985) 1 SCC 641), established that the press plays an important role in the democratic mechanism. The courts have a duty to protect journalistic freedom and to overturn any laws or administrative acts that restrict it.
  3. Rangarajan v. P. Jagjivan Ram, everyone has a basic right to express his or her views on matters of public importance. Open criticism of government policies and activities is not a reason to limit freedom of expression. Intolerance is as deadly to democracy as it is to the individual. It is not necessary in a democracy for everyone to sing the same song.
  4. Bijoe Emmanuel v. State of Kerala (1986 3 SC 615), Three pupils were expelled for refusing to perform the national anthem. When the national anthem played, the youngsters stood up in respect. The validity of the student’s expulsion was contested before the Kerala High Court, which affirmed the expulsion on the grounds that singing the national anthem was their fundamental duty. However, the Supreme Court ruled in an appeal filed against the Kerala High Court’s judgment that the students did not commit any offense under the Prevention of Insults to National Honour Act, 1971. Furthermore, there was no law that might limit their fundamental freedom under Article 19(1)(a).
  5. for Democratic Reforms v. Union of India ((2002) 5 SCC 294) “One-sided information, disinformation, misinterpretation, and non-information all contribute to an uneducated populace, which undermines democracy. Freedom of expression involves the right to impart and receive information, as well as the right to hold opinions.”

CONCLUSION.

Though we have the freedom of Speech as an inalienable right and can be enforced through the constitution, even with the intervention of the Supreme Court as the guardian of our rights and our protector India was still ranked 150th out of 180 stated in the World Press Freedom Index. Though the center has rejected the findings of the world forum, in reality, what does it tells us about the idea of freedom of speech in the country? Does curtailing the freedom of Speech have a high negative impact on our lives? Or do we not exercise our Freedom of Speech as the antidote against ignorance at all?

I leave the floor to you to come up with your answers.

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ARTICLE WRITTEN BY RAMASHESHAN P K.

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Scope of Morality under Article 25 & 26 of the Constitution: Constitutional Morality Versus Public Morality

INTRODUCTION

Literature suggests that the concept of ‘morality’ is drawn from the French concept of ‘bonnes mœurs’, which is understood as ‘the degree of conformity to moral principles (especially good)’, whereas ‘ordre public’ is an evolutionary concept that expresses concerns about ‘matters threatening the social structures of civil society as such’. In India Article 25 and 26 provides for freedom of worship and the right of religious denominations to manage their own affairs in the matter of religion. All of this is subject to Public Morality. However, the term is not explicitly defined in any law and there have been several questions and clashes between the concept of Constitution Morality vis-a-vis Public Morality at large. The question extends to the fact that which should be given primacy over the other and does our constitution favours public morality at large or to bow to the facets that have been enshrined in the constitution itself and support Constitutional Morality. 

The black law dictionary defines something moral as “Pertaining or relating to the conscience or moral sense or to the general principles of right conduct.” While framing articles  25 and 26, the framers added “subject to” clause making it crystal clear that it is to protect the practices of the religion and allow them to Expedite their rights under the Articles. 

In this Article I have tried to put forward the different Articles which talk about Morality and the interpretations as have been laid out by the Courts and try to put forth the scope of Morality as under Article 25 and 26 of the Constitution of India.

ARTICLE 25

Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

ARTICLE 26 

Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law

Article 25 talks about the freedom of religion. It gives the right to conscience and free profession, practise and propagation of any religion the individual has faith in. It allows an individual to practice the religion they have faith in. It guarantees to all its citizens freedom of conscience and free profession, practice and propagation of religion thereby allowing all the people a right to worship irrespective of their caste, class, religion and sect. Article 26 confers the right on religious denominations to manage their own affairs in the matter of religion. All of this is subject to public order, morality, and health.

CONSTITUTIONAL MORALITY

The term Constitutional Morality has not specifically been defined under any law, however, time and again through debates and interpretations done by the Hon’ble Supreme Court as well as several other High Courts the blurred understanding had tried to be cleared. Constitutional Morality means to bow down to the norms of the constitution and respect the facets of equality, liberty, justice as enshrined in the preamble of the constitution. 

With the adoption of the Constitution of India, we the people swore to abide by the facets of justice, liberty, equality and fraternity as mentioned in our preamble. Anything that is not in congruence with this and acts as a discriminatory practice must be done away with and the constitution be given supremacy over any ill practice that discriminates the citizens without any reasonable justification. 

Greek historian George Grote was cited by Dr. B.R. Ambedkar in one of the Constitutional Assembly Debates while he was describing the idea of constitutional morality as he knew the conflict that would evolve with time.

“By Constitutional Morality, Grote meant- A paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.

The above-mentioned comment by Dr. B.R. Ambedkar on the idea of constitutional morality was made during a debate in the Constituent Assembly over the insertion of administrative provisions—taken from the 1935 Government of India Act—into the Indian Constitution. Understanding the notion of constitutional morality reveals that it is related to the parliamentary system of government, which is itself restrained by limiting the state’s ability to restrict citizens’ freedoms. It seems that constitutional morality demonstrates the citizen’s dedication to freedom.

Without any reasonable law it is difficult to understand or interpret the term, however the Court has discussed Constitutional Morality in several cases. A few have been discussed below:

Govt. of NCT of Delhi v. Union of India and Ors.

It was observed by the Supreme Court that constitutional morality is “not just the forms and procedures of the Constitution, but provides an enabling framework that allows a society the possibilities of self-renewal”. 

Navtej Singh Johar v. Union of India

Applying the doctrine of constitutional morality, the judges have found that court must not be remotely guided by majoritarian views or popular perception but they must be guided by constitutional morality. The court differentiated between public and constitutional morality and said that the ideal of justice always have an overriding effect .i.e. constitutional morality have an overriding effect on public morality.

In a secular country like India which is a diverse nation and where everyone has been conferred the right to practice their own religion, what sets moral standards for one might be immoral for the people of other religion. In order to strike a harmonious balance it seems plausible to abide by the facets of the constitution. Constitutional Morality thus imbibes a sense of freedom as well as allows the citizens to adopt and follow the principles enshrined in the constitution. 

PUBLIC MORALITY

The term “public morality”/“morals” are used to refer to prevalent standards of societal morality i.e. what a society at a given point in time deems morally permissible or impermissible based on its cultural and civilizational moorings. In a nutshell, the concept of morality has been typically founded on the totality of accepted norms which are deeply rooted in a particular culture. However, Public morality as a term is subjective in interpretation and may mean different to different individuals. Public morality refers to prevailing notions of rights and wrongs in our society. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. The hon’ble courts have historically used public morality to curtail various fundamental rights in order to strike a balance between the rights of individuals. This was observed in the case of The State Of Bombay vs R. M. D. Chamarbaugwala.

The hon’ble court has also observed that popular morality is ‘based on shifting and subjective notions of right and wrongs of the society’. The term public morality was debated in the case of Young Indian Lawyers Association v. State of Kerala popularly known as the Sabarimala Judgment in which the court removed the ban on women aged between 10-50 years to enter the Holy Shrine of the Sabarimala Temple. Justice Indu Malhotra dissenting the judgment quoted that “Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts.” She supported public morality and added that the religious denomination have the right to manage their own affairs and that ensuring the principles of the religion and value of their practice is protected under Article 25 and 26, it is a matter of deep faith and belief of the worshippers that should not be intruded with. 

Public Morality is seen as an evolving concept and in the greater good of the people. If one has faith in a certain religion, their practices are protected under Article 25 and 26. This was contested by Hon’ble Justice Indu Malhotra in the case.

CONCLUSION

Deciding which is more important, public morality or constitutional morality, is exceedingly difficult. The courts have made an effort to define the phrases, but there is a wide range of interpretations, making it difficult to pinpoint exactly what is meant by the term “morality” as it applies to Articles 25 and 26. 

To apply the concept of public morality in accordance with constitutional morality in any circumstance, one must first understand it. Although the rights of religious denominations must be upheld, society’s sins must also be eradicated. Making a decision about whether a phrase is more tenable and superior to the other is difficult. In a country like India, we would be able to see how public morality in and of itself is inclusive to constitutional morality through time and the interpretations provided by the Hon’ble Court, therefore defining additional standards in the future to follow.

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ARTICLE WRITTEN BY ADITI PRIYADARSHI

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DIGITAL RAPE

Introduction

Does the term “digital rape” refer to any sort of internet crime? Is the victim’s physical being implicated in the digital rape? Many of you probably assumed that “digital rape” referred to a sexual violation that took place only online, without the use of a physical body. But that’s not how it works! Digital rape is the act of forcibly penetrating a person’s toes, fingers, or thumbs without their consent and has nothing to do with computer intrusion. The reason most of you have never heard this term before is that rape was once classified as molestation rather than a crime. This article will cover a wide range of topics, including Indian rape laws, the definition of “digital rape,” whether or not such crimes have been codified into Indian law, and more.

Rape in India

According to Article 375 of the Indian Penal Code, “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, fraud, or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under the age of eighteen” is considered a felony. Let’s take a look at the various classifications given to this horrendous crime.

Types of Rape in India

  1. DATE RAPE

An “acquaintance rape,” often known as a “date rape,” is an act of non-domestic rape performed by someone the victim knows but has never lived with. The rapist deliberately doses the victim with a date rape drug so that they are unable to resist sexual assault. The most typical method is to poison the victim’s drink.

  1. GANG RAPE

Rape of a single victim by multiple perpetrators is what this term describes. Many regions of the world have a high prevalence of reports of rapes with multiple assailants. The penalties for participating in a gang rape are outlined in Section 376(2)(g). It mandates severe punishments, including a ten-year minimum prison sentence and possibly even life sentences for repeat offenders. Outraged citizens have spoken out against the likes of the Nirbhaya Rape case, the Bilkis Bano Gang Rape case, etc.

  1. MARITAL RAPE

Rape between a married or de facto couple without the permission of one partner is also known as spousal rape. Violent and sexual acts against a spouse are classified as domestic violence and sexual abuse. The “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape” language of Exception 2 of Section 375 presents a challenge to the passage or recognition of this marital rape law.

  1. CHILD RAPE

To sexually abuse a child. Sexual abuse against a child or young person occurs when it is perpetrated by another child or young person, typically one who is older or stronger. To protect children from sexual abuse, the government enacted POCSO.

  1. CUSTODIAL RAPE

According to Section 376A, a man is guilty of custodial rape if he commits rape on a woman while she is in his care. The males can be any law enforcement personnel (police, constables, etc.) responsible for the woman’s detention. It would be a terrible crime if they used their power to sexually exploit women. However, the term “custody” was expanded to include broader concepts and meanings in 1983. The Mathura rape case is a good illustration of this.

  1. DIGITAL RAPE

Rape in the digital age refers to the forcible and unwanted penetration of a person’s fingers or toes, and has nothing to do with cybercrime. Let’s break down the specifics of this rape method.

What do you mean by Digital Rape?

In digital rape, the attacker uses his finger or fingers to infringe and compel the sexual act upon the victim. In simple words, a person is charged of digital rape when the perpetrator uses his finger or fingers to penetrate the vagina of the victim without her consent.

Incident 1– In a highly ridiculous incident, a 2-year-old was brought to the hospital bleeding in Mumbai, where physicians discovered that her vagina was ruptured. Still, there was no indication of sexual abuse or rape. Her father, though, was later found to be invading the girl with his fingers. He was taken into jail but penalized under Section 376 of the IPC.

Incident 2– Then, in another incident, a 60- years old woman was sexually raped by an auto-rickshaw driver, who used an iron rod to penetrate her when she was visiting her relative’s wedding. The driver was detained again but wasn’t convicted under Section 376 of the IPC, illustrating significant loopholes in Section 376 of the IPC.

As this pointed out several loopholes in Section 376 of the IPC, that deals with the punishment of rape crimes because digital rape, which involves a violation of a female’s dignity using fingers, foreign objects, or any other part of the human body, was not considered as a crime under any of the section under IPC. But after the Crime Amendment Act of 2013, the Supreme Court had to make a few revisions to its definition of rape in the Indian Penal Code. Given all these situations and horrific acts of crime, the definition of rape was broadened in 2013. By this new definition, rape is now described as “forcefully penetrating a woman’s vagina, mouth, anus, or urethra by a penis, any foreign object, or any other part of the body.”

Punishment for Digital Rape-

The penalties are set forth in the Indian Penal Code and the Public Order Crimes and Safety Act. The POCSO Act mandates a five-year prison sentence for offenders, and if the crime falls under Section 376 of the IPC, the perpetrator faces a sentence of 10 years to life in prison. There are several sections of POCSO devoted to penalties.

Section 3 of POCSO Act

Penetration sexual assault was already defined as “the insertion of any object or a part of the body, not being the penis, into the vagina, the urethra, or the anus of the child, or making the child do so with him or any other person,” according to Section 3 of the POCSO Act, before the definition of rape was updated in 2013. Not only do these two sections apply to situations of digital rape, but additional sections may be applied as well. These items are:

POCSO Act Subsections 5(m) and 6

 

  • A person who “commits penetrative sexual assault on a child below twelve years” is considered to have committed aggravated penetrative sexual assault, as defined in Section 5 of the POCSO Act. Section 3 defines penetrative sexual assault.

Penalties for aggravated penetrative sexual assault under this clause can be as severe as life in prison (for the rest of one’s natural life) or even the death penalty. The additional fine is substantial.

  • If you commit aggravated penetrative sexual assault, you could face life in prison, which means you’ll be locked up for the rest of your natural life, a hefty fine, or even the death penalty. Section 6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life.

The victim’s medical bills and rehabilitative costs shall be covered by the fine imposed under sub section (1) which shall be fair and reasonable.

CONCLUSION

After the Nirbhaya rape case, an immediate need was recognized to change the rape laws in India. Before 2013, digital rape wasn’t incorporated under the definition of rape. But after multiple horrendous rape cases, as stated above, the Supreme Court had to make a few revisions to its definition of rape, understanding that there are other ways that a man can employ to violate a woman or child’s dignity. Hence, maintaining all these incidents and horrible instances of crime, the definition of rape was enlarged in 2013, and rape is now described as “forcefully penetrating a woman’s vagina, mouth, anus, or urethra by a penis,any foreign object, or any other part of the body.”

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of the best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Article by Deepa Bajaj.

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SEPARATION OF POWERS IN THE INDIAN CONSTITUTION

INTRODUCTION

 

Democratic country has a system of government in which the powers are divided among various branches which control different facet of government, India being a democratic country has its power divided into the branches namely Legislative, Executive and Judiciary, known as called the trias politica model with each branch having its separate independent power and responsibilities.

 

 

WHAT IS SEPARATION OF POWERS

 

Separation of powers is the mechanism of governance in three branches i.e., as specified above Legislative, Executive and Judiciary.

Three basic features of this division are-

  1. Each organ should have different persons in capacity
  2. One organ should not interfere in the functioning of the other organs, i.e., there shall be independency of powers.
  3. One organ should not exercise a function of another

Separation of power prevents misuse of power of accumulation of power in a few hands, separation of power safeguards the society from arbitrary and irrational power of the state.

 

NOW LET US UNDERSTAND EACH OF THESE BRANCHES SEPARATELY

 

Legislature

Legislature is the law-making body; it has the authority to make laws for a political entity such as a country. Law enacted by the legislature is usually known as primary legislation. Legislature forms the base for the functioning of the other two organs.

Executive

Executive is the administrative head of the government which includes Prime/Chief Ministers and President/Governors. Executive is completely dependent on the powers the legislature grants it, and the actions of the executive may or may not be subject to judicial review.

 

Judiciary

The Judiciary is the watchdog of the democracy, as it guards the constitution, the judiciary comprises of the Supreme Court, the High Courts, District and other subordinate courts.

 

SIGNIFICANCE OF SEPARATION OF POWERS

 

Concentration of power in one centre/authority, can lead to maladministration, corruption, nepotism and abuse of power.

Separation of powers helps in-

  1. Preventing autocracy
  2. Create efficient administration
  3. Independency of power is maintained
  4. Prevents the legislature from enacting arbitrary or unconstitutional laws

 

 

CONSTITUTIONAL STATUS ON SEPARATION OF POWERS IN INDIA

Separation of powers is a part of the basic structure of the Constitution,

Let us take a look at some of the articles of the Constitution which suggest separation of powers-

 

Article 50

 Separation of judiciary from executive, this article suggests that the State shall take steps to separate the judiciary from the executive in the public services of the State.

 

Article 123 

The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.

 

Articles 121 and 211

These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.

Article 361

The President and Governors enjoy immunity from court proceedings.

 

 

JUDICIAL PRONOUNCEMENT ON SEPARATION OF POWERS

 

Kesavananda Bharati and ors v. State of Kerala

The SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.

 

I.R. Coelho v. State of Tamil Nadu 

The Supreme Court held that the doctrine of basic structure as propounded in the above-mentioned case and the Ninth schedule grant blanket protection to certain legislations from judicial review is violative of this doctrine.

 

 Ram Jawaya Kapoor V State of Punjab

The court held that the Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.

 

 

 P Kannadasan V State of Tamil Nadu

The court held, “the Constitution has invested the Constitutional Courts with the power to invalidate laws made by Parliament and the state legislatures transgressing Constitutional limitations.

 

 

Golak Nath v. State of Punjab

It was observed that the three organs of the government are expected to exercise their functions within their limits and keeping in mind certain encroachments assigned by the constitution.

 

Kartar Singh v. State of Punjab 

The judge stated, “it’s the function of the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.”

 

 

CONCLUSION

From this article it can be concluded that separation of power is important in order to prevent its accumulation in a few hands, separation of power also helps in preventing the misuse of power. However absolute separation of power cannot be given as a result there is an inter-relation among all the three branches.

 

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

ARTICLE WRITTEN BY VYSHNAVI

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