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Revolutionizing Rape Laws in India – Navigating Gender Neutrality for a Just Society

INTRODUCTION

The need to maintain gender neutrality in rape laws has grown in recent years, prompting a reevaluation of existing legislation. Conventional wisdom regarding sexual assault laws frequently assumes that the victim is a woman and the offender is a man. But when society standards change, it’s important to consider if this binary approach actually advances justice. Deliberations on justice and equality are sparked by the controversial question of whether rape laws should be gender-neutral. Gender neutrality proponents contend that emphasizing the act itself encourages equitable treatment because it acknowledges that both men and women are capable of being offenders as well as victims. They argue that a gender-neutral strategy guarantees impartial court processes. Opponents, however, emphasise the historical background of violence against women and contend that gender specificity is essential to redressing power disparities in society. For the purpose of creating focused interventions, it is seen to be imperative to acknowledge the gendered aspect of sexual violence. Maintaining equal legal treatment while acknowledging a range of experiences is a difficult task that necessitates a sophisticated comprehension of the complicated problem of rape.

THE EVOLUTION OF RAPE LAWS

 In the past, laws against rape were created to shield women from sexual assault, which was indicative of a culture that saw women as the main victims. However, as knowledge of many sexual assault scenarios increases, this viewpoint is coming under more and more scrutiny. Lawmakers who support gender-neutral rape policies contend that such measures are necessary to acknowledge the fact that both men and women can commit and be victims of rape. Section 375 of the Indian Penal Code (IPC) defines rape and includes measures that expressly address such offences. The emphasis on female victims has been shaped by the demands of the mainstream to address the pervasive problem of violence against women.

Mukesh v. State for NCT of Delhi (Nirbhaya case) 

This case brought few amendments in section 375 of IPC, the definition of rape was broadened. The degree of punishments was increased. But the 2012 bill was once again criticised on various grounds such as it didn’t include any other gender in the victim category. Secondly, it didn’t recognise marital rape as a law. The male perpetrator category remained unchanged.

LATER,

In 1996, the Delhi High Court took up the topic of gender neutrality in Indian rape laws for the first time in a petition case involving Smt. Sudesh Jhaku vs. K.C.J. and Others. It was acknowledged that male victims of sexual assault ought to get the same level of legal protection as their female counterparts. The court further declared that women who violate men or other women sexually should be prosecuted and handled like regular rapists. The 172nd Law Commission’s Report recommended that rape laws be made unbiased and free of prejudice.

ARGUMENTS IN FAVOR OF GENDER NEUTRALITY

Gender neutrality is an important idea with many benefits. First of all, it promotes equity and equality by giving preference to abilities and merit over gender and making sure that everyone has access to opportunities. Another important advantage of gender-neutral techniques is the decrease in gender stereotypes, since they question conventional roles and promote a society in which people are not constrained by preconceived conceptions. A more inclusive atmosphere is created by using inclusive language, such as gender-neutral pronouns and titles, which encourage acceptance and acknowledgement of a range of gender identities. Supporting gender neutrality also supports LGBTQ+ rights since it accepts and acknowledges a range of gender identities that go beyond the binary. The promotion of gender neutrality is also grounded in social progress, which upends antiquated conventions and cultivates a more tolerant community. Adopting gender neutrality has a favorable effect on mental health by reducing stress brought on by social expectations. It also questions conventional parenting norms, encouraging work-life balance and fostering more adaptable and egalitarian family interactions. To put it simply, embracing gender neutrality is essential to building a society that is more progressive, egalitarian, and inclusive.

In Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty   In this case Hon’ble Supreme Court held that “rape is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights”. Especially, Right to Life under Article 21 is grossly violated.

LEGAL IMPLICATION

Constitutional Considerations: Any modification to the legislation pertaining to rape must take constitutional considerations into account. According to Article 14 of the Indian Constitution, laws must be just, equitable, and devoid of discrimination in order to uphold the right to equality. These constitutional ideals are in line with a gender-neutral strategy.

Changes to Current legislation: Current statutes need to be changed in order to achieve gender neutrality in rape legislation. Amendments would need to be carefully drafted by policymakers to guarantee that all victims, regardless of gender, would receive complete protection. In K.C.J. and Others v. Smt. Sudesh Jhaku In this instance, the Court looked into the possibility of interpreting the pre-2013 definition of rape to include non-penetrative sexual activities. However, by voicing opinions on gender neutrality, the Court went beyond its authority. Justice Jaspal Singh made it clear that the legislative branch, not the judiciary, should be responsible for resolving the nature of the matter that was brought up. It was underlined that the exclusive power to enact laws that are gender-neutral rests with the legislature. The judge further noted that statutory reconstruction is required for the crime of rape.

There are several obstacles to overcome in order for rape laws to be neutral. These obstacles have effects on the legal, social, and ethical spheres. Legal applicability is inconsistent in part because different jurisdictions have different definitions and definitions of rape. While necessary for justice, the transition to gender-neutral laws is hampered by past prejudices and the complexity of the wide range of offenders and victims. The process of establishing consent criteria is complex, as individual, social, and cultural differences can make it difficult to determine whether someone gave their informed consent—particularly when there is a power imbalance or intoxication involved.

WHAT ARE THE CHALLENGES IN MAKING RAPE LAWS GENDER NEUTRAL?

There are several obstacles to the idea of gender-neutral rape laws, including cultural views, legal complexities, and historical conventions. Rape laws have always been developed via a gender-specific perspective, reflecting deeply rooted prejudices and preconceptions. These laws need to be reevaluated due to changing views on gender roles, however there are difficulties in revising legal definitions and guaranteeing successful prosecution. The implementation of gender-neutral legislation is significantly hampered by cultural and societal resistance that is ingrained in conventional ideas. The conversation is further complicated by worries about education, foreign experiences, victim support networks, and resources. Given the variety of origins, the intersectionality of these laws needs to be carefully considered. Despite these obstacles, education plays a critical role in changing society attitudes by promoting awareness and understanding. It is crucial to navigate these challenges as cultures struggle with changing norms in order to create a legal framework that properly tackles the diversity of sexual violence and is truly inclusive.

State of Maharashtra v. Madhkar Narayan Mardikar (1991): Emphasized the importance of considering the victim’s perspective in sexual assault cases, supporting a victim-centric approach within the legal framework.

ANALYSIS AND SUGGESTIONS

The arguments in favour of gender-neutral rape legislation are based on fairness and equality. Legal systems demonstrate their commitment to treating everyone equally by adopting gender neutrality. By shattering preconceptions and honoring the experiences of male and LGBTQ+ survivors, these laws acknowledge that sexual assault affects people of all genders. Legislation that is gender-neutral also promotes inclusivity, reporting, and lessens the stigma attached to male victims. Gender prejudices reinforced by conventional laws are dismantled and clarity is improved by uniformity in legal terminology. This strategy guarantees a thorough framework for dealing with sexual assault, recognizes the possibility of female offenders, and promotes a culture that values the rights and welfare of every person. Gender-neutral rape laws, in the end, are an important step towards developing a more equal and just legal system that tackles the intricacies of sexual assault, regardless of gender.

CONCLUSION

There are many intricate legal, social, and cultural factors to take into account while deciding whether or not rape laws in India should be gender-neutral. Though historically, a gender-specific approach has been the norm, changing social attitudes and a dedication to legal equality call for a review of the current legal system. A thorough grasp of the various forms of sexual violence that afflict people of all genders and a careful balancing of constitutional values should guide any prospective shift towards gender neutrality. To provide justice and safety for everybody, India’s legal system must develop further. Legislators contend that enacting laws that are gender-neutral will help combat negative perceptions, address situations that go unreported, safeguard vulnerable groups, and advance equitable responsibility. A crucial first step towards achieving our goal of a more equal and inclusive society is the reevaluation of rape legislation using a gender-neutral perspective.

REFERENCES

  1. Should Sexual Offences be Gender Neutral By: Rishav Raj Available at: https://legalvidhiya.com/should-sexual-offences-be-gender-neutral/
  2. Sexual Assault Law in India be Gender Neutral? By : Nikunj Kulshreshtha Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3704050
  3. https://www.legalserviceindia.com/legal/article-4744-gender-neutral-rape-laws.html#google_vignette
  4. 1998 CriLJ 2428
  5. 2017 6 SCC 1
  6. 1996 SCC(1)490
  7. https://indiankanoon.org/doc/1525708/

 

 

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AGE OF CONSENT AND ANTICIPATORY BAIL UNDER THE POCSO ACT

 INTRODUCTION:
The Protection of Children from Sexual Offenses (POCSO) Act, 2012 is an essential regulation in India aimed at protecting children from sexual abuse and double dealing. However, some of the performance arrangements have sparked debates and conversations, particularly regarding the duration of consent and expected collateral. This article examines the implications of the POCSO Act in depth, examining these contentious issues.

Cases under the Protection of Children from Sexual Offenses Act (POCSO), 2012 are illustrative examples of children being used as weapons, a law designed to protect them. The age of consent referred to under the Exhibit is 18 years. Before the regulation of POCSO, the age of consent was 16 years. Be that as it may, the show on Youngster Freedoms raised this age to 18.

AGE CONSENT:

Determination of the age of consent, which is essential to identify cases of sexual offenses against children, is one of the important aspects of the POCSO Act. As indicated by the demonstration, any sexual act with a person under the age of 18 is viewed as a crime, even if it is consensual. This arrangement is expected to provide full assurance to children and prevent any kind of double dealing or abuse.

However, the permanent nature of this arrangement is a matter of debate, particularly regarding situations where minors participate in consensual sexual practices with friends of comparable age. Experts argue that condemning such behavior can lead to over-adjustment of youth, especially in situations where no pressure or double dealing is involved. They advocate a more nuanced approach that takes into account the age and development of the people in question.

Then again, defenders of the ongoing system stress the need for serious enforcement to prevent instances of double-dealing and abuse. They argue that any deviation from the recommended age breaking point can create escape clauses that criminals can take advantage of to avoid liability. Also, they emphasize the importance of instructing young people about sound connections and agree to prevent examples of sexually inappropriate behavior.

ANTICIPATORY BAIL:

Another controversial issue involving the POCSO Act is the provision of anticipatory bail for those accused of sexual offenses against children. A person can avail anticipatory bail to avoid arrest before the charge sheet or FIR is filed. However, the grant of anticipatory bail under the POCSO Act depends on the circumstances.

Section 18 of the POCSO Act provides that anticipatory bail shall not be granted to a person accused of an offense during a demonstration, unless the court has reasonable grounds to believe that the charge is false or imaginary; process. These provisions reflect the seriousness of the offenses under the Act and the need to prioritize the protection of children.

Experts argue that the strict conditions for anticipatory bail can undermine the privileges of the accused and can be misused for the law. Honest people can face provocation and ridicule due to false accusations, and the expected bailout reinforces their vulnerability.

However, supporters of the treaty say there is a need to protect the interests of young victims and ensure that perpetrators are held accountable for their actions. They argued that the impugned bail would vitiate the propriety of the POCSO Act and prevent the aggrieved from coming forward to seek justice.

CASE LAWS:

Certainly, here are a couple of notable case laws that have addressed the issues of age of consent and anticipatory bail under the Protection of Children from Sexual Offences (POCSO) Act:

  1. State of Karnataka v. Umesh P[1]:
    This case pertained to the interpretation of the age of consent provision under the POCSO Act. The Supreme Court of India, in its judgment, emphasized the strict liability aspect of the act regarding sexual activities with minors. The court reiterated that the age of consent under the POCSO Act is fixed at 18 years, and any sexual activity with a person below this age, even if consensual, constitutes an offense. This landmark judgment clarified the stance of the judiciary on the age of consent provision, reaffirming the act’s intent to provide absolute protection to children from sexual abuse.
  2. Arnab Manoranjan Goswami v. The State of Maharashtra[2]:
    This case involved a petition seeking anticipatory bail under the POCSO Act in connection with allegations of sexual offenses against a minor. The Bombay High Court, in its ruling, reiterated the stringent conditions laid down under Section 18 of the POCSO Act for granting anticipatory bail. The court emphasized that the primary consideration in such cases should be the protection of the child victim’s interests and the prevention of any undue influence or intimidation by the accused. This judgment underscored the importance of prioritizing child welfare over the rights of the accused when adjudicating matters related to anticipatory bail under the POCSO Act.
  3. Ajay Kumar v. State (NCT of Delhi)[3]:

The Delhi High Court stated that the intention of the POCSO Act was to protect children below the age of 18 years from sexual exploitation and not to criminalise romantic relationships between consenting young adults. Various High Courts of India have advised the legislature to amend the age of consent and some step ahead further by sidestepping the law and recognising the consent of adolescents. This, itself, demonstrates the willingness of the courts to evolve with time and adapt as per society’s growing needs so as to effectively administer justice. There are many instances where the courts have granted bail to the accused on ground of romantic relationships. The high rate of acquittals under the POCSO Act shows that the law is not in sync with the social realities of adolescent relationships. The legal aspects of teenage sexuality have undergone several changes since colonial times. The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily. But as per the survey conducted by National Family Health Survey (NFHS-5), 39 per cent of women had their first sexual experience before turning 18 years of age.

These case laws highlight the judicial interpretation and application of the age of consent provision and anticipatory bail under the POCSO Act, providing important precedents for future legal proceedings and clarifying the legal framework surrounding offenses against children.

RECENT DEVELOPMENTS:

The age of giving consent to engage in sexual acts is a matter of great importance as it plays a pivotal part in determining the nature of the relationship. The Chief Justice of India, Dr D.Y. Chandrachud, at the inaugural two-day session of the National Stakeholders Consultation on the Protection of Children from Sexual Offences, Act, 2012[4] (POCSO Act)[5] addressed the issue of age of consent and various difficulties being faced by Judges of trial and appellate courts in examining cases of consensual sex among adolescents.

Since its enactment in 2012, the primary objective of the POCSO Act has been to safeguard minors from offences of sexual abuse and exploitation and provides for severe punishment for any person who is found guilty of committing sexual offences against children. The Act defines a child as any person below the age of 18 years. The consent of a “child” is immaterial and consensual sexual intercourse with or among adolescents is treated on a par with rape. However, in recent years, there have been calls for reconsideration of the age limit under the Act due to the increasing number of cases of sexual offences between the age group of 16-18. Many experts argue that the age limit of 18 years is too low, and that it fails to take into account the complexities of adolescent relationships. Mostly cases under the POCSO Act are of romantic relationships between an adult and an adolescent which given a colour of sexual offence to punish the boy by families of the girl. Enfold Proactive Health Trust, an NGO based in Bengaluru, conducted a study with UNICEF (United Nations International Children’s Emergency Fund) India and UNFPA[6] (United Nations Population Fund), analysing 1715 such “romantic cases” registered under the POCSO Act in Assam, Maharashtra, and West Bengal between the year 2016-2020. The study revealed that “romantic cases” accounted for 24.3 per cent of all POCSO cases between 2016 till 2020, and 80.2 per cent of these cases were filed by parents and relatives of the girl.

In numerous cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case, for which the police book the boy for rape under the POCSO Act and abduction with the intent to marry under the Penal Code (IPC), 1860[7] or the Prohibition of Child Marriage Act, 2006[8]. The Karnataka High Court has directed the Law Commission of India to reconsider the age of consent under the POCSO Act. A Division Bench consisting of Suraj Govindaraj and G. Basavaraja, JJ. of the Karnataka High Court in a judgment passed on 5-11-2022 observed that there are several cases relating to minor girls above 16 years having fallen in love and eloped which results in having sexual intercourse with the boy and opined that the Law Commission of India should rethink on the age criteria, so as to take into consideration the ground realities.[9]

Such offences are slapped against teenagers, who fall victim to the application of the POCSO Act at a young age without understanding the severity of the enactment. It impacts the delivery justice system as these cases constitute a large burden on our courts and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.

CONCLUSION:

The period of consent and provision of anticipatory bail is an important part of the POCSO Act which needs careful thought and consideration. While the demonstration aims to provide strong protection for young people against sexual violations, it is important to strike some sort of balance between ensuring equity harm and protecting the liberties of the accused. Any proposed changes or amendments should be aimed at promoting youth government assistance and preventing situations such as sexual discrimination and double affairs.

[1] 22 March, 2022

[2] 2020 SCC OnLine SC 964

[3] 2022 SCC OnLine Del 3705

[4] Dishha Bagchi, “‘Prioritise Interest of Child Over So-Called Honour’ — CJI Takes Stock of POCSO, its Implementation”.

[5] Protection of Children from Sexual Offences Act, 2012

[6] “‘Romantic’ Cases under the POCSO Act: An Analysis of Judgments of Special Courts in Assam, Maharashtra & West Bengal”, Enfold Proactive Health Trust with support from UNICEF – India, June 2022.

[7] Penal Code, 1860

[8] Prohibition of Child Marriage Act, 2006

[9] “HC Says Law Commission Needs to Rethink Age Criteria for Consensual Sex”, The Hindu.

BY: Aastha Ganesh Tiwari

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She is not a piece of Meat; Her Conviction is not a free ticket for Licentious Men to pounce on her and satisfy their animalistic lust.

ABSTRACT

Does her being a criminal give licentious men a free ticket to rob her of her dignity?[1] Does she become a piece of meat for them, onto which they can pounce whenever they please and satisfy their animalistic lust? This Article deals with the current legal issue of women prisoners getting pregnant inside the prison. The issue is currently in the news and has become a point of discussion as it’s raising concern that these female prisoners are being subject to sexual harassment inside the Jail Premises. Through this article, the author sheds light on the issue at hand by drawing inferences from various news articles as to what could be the possible reasons behind these pregnancies. The article further discusses in brief about various acts, rules, and cases that protect the rights of prisoners in general and specific provisions relating to sexual harassment. Finally, the article addresses the current ground-level situation and concludes with suggestions to deal with the prevalent grassroots-level problems.

INTRODUCTION

What’s the News, Why in News?

On February 8th, Thursday Adv. Tapas Kumar Bhanja, who is an Amicus Curiae, submitted his report to a division bench of Justice T.S Sivagnanam and Justice Supratim Bhattacharya of Calcutta High Court. Mr. Bhanja in his report submitted that women prisoners are getting pregnant inside the jail and as a result, a total of 196 babies are currently in various jails of the State of West Bengal.

He also requested the bench to prohibit the entry of male staff of correctional homes during the enclosure of women’s presence. Mr. Bhanja shared his experience of a visit to one of the correctional homes, along with the correctional home’s inspector general and secretary of the district legal services, where he found a woman pregnant. He further mentioned how he had previously witnessed the birth of 15 babies in such homes.

Seeing the seriousness of this issue, the Bench took the advice of the Amicus Curiae and scheduled the matter for hearing on Monday, 12th of February, before a criminal bench.[2]

On the very next day, the 9th of February, the Supreme Court also showed seriousness towards the matter and took cognizance, after which the two-judge bench of Justice Sanjay Kumar and Justice Ahsanuddin Amanullah appointed Adv. Gaurav Agrawal as Amicus Curiae in this matter and directed him to do further research. [3]

What inferences can be drawn from this issue?

As per the prison statistics of 2022 by National Crime Records, there are 1537 total women and 1764 children inside the jails (as of 31st of December, 2022).

The issue at hand could make a person wonder how these women prisoners are getting pregnant inside the jail and correctional homes, and the very first assumption that could be drawn is the strong possibility of sexual harassment.

It is a shame that even after enduring a tragic life outside the jail, which might have led these women to commit crimes, they are not even safe in the premises of the jail. The other possibility of them getting pregnant inside could also be consensual sex, but even in such cases, most of the time it’s forced consent. Various studies also show that most of such cases are of coercive sexual intercourse, and in such situations, the female is a weak person and the powerful authorities make them surrender to their knees and force them into having sexual intercourse. If the women refused, they would have to bear severe repercussions such as physical and mental torture. These authorities would also starve them of the basic necessities, hence, consent which is already a grey concept becomes even darker behind the bars.

The third and last inference that could be drawn is the prisoners getting pregnant during conjugal visits. It is a right that has been given to the prisoners to spend some quality time with their marital partners to fulfill their conjugal rights and other purposes such as procreation.

Hence, all of these cases cannot be combined and should be dealt with on a case-to-case basis, however, sexual harassment being the most dangerous of all, needs to be treated as an individual issue with utmost urgency and importance.

LEGAL FRAMEWORK IN PLACE

What existing legal acts and cases are governing the Rights of Prisoners and protecting them against sexual harassment?

Be it at home, streets, or even in prisons- statistically, women are more prone to sexual harassment. However, we cannot neglect the fact that even male prisoners, though not capable of getting pregnant, are subject to the same mental, physical, and sexual harassment. A baby bump may not be a reason for suspicion for them, but they can still endure such abuses. Therefore, as per Articles 21, 22, and 14, of the Constitution of India, all of these convicts have certain rights which must be protected irrespective of their gender, and irrespective of the fact that they are criminals. They should still be given humane treatment and should be fairly punished as per the law, not as per someone’s own dictatorship. [4]

In the case of D.B.M Patnaik Vs State of Andhra Pradesh[5], the Supreme Court of India held that a detained person cannot be deprived of their fundamental rights.

Acts and Rules Governing Prisoners’ Rights in General-

The Prisons Act, 1894:

This is the very first legislation that safeguards the rights of prisoners in India. It talks about the accommodation and sanitary conditions for the prisoners, along with various other provisions on the mental and physical state of the prisoners. It also contains provisions relating to the fair treatment of the prisoners.

The Transfer of Prisoners Act, 1995:

This Act mostly focuses on the removal of any prisoner who is of unsound mind from the detention center and shifting them to a lunatic asylum to provide them with proper treatment.

The Repatriation of Prisoners Act, 2003:

This Act provides for the transfer of certain prisoners from India to a country or place outside India and vice versa.

The Prisoners (Attendance in Courts) Act, 1955:

This Act deals with recording of attendance of prisoners; to obtain evidence and to answer a criminal charge.

The Criminal Procedure (Identification) Act, 2022

This Act lays down the proper procedure for taking measurements of convicts and other persons for identification during a criminal matter and to preserve records and for matters connected therewith and incidental thereto.

Along with these Acts, we have 2 Rules, The Repatriation of Prisoners Rules, 2004, and The Criminal Procedure (Identification) Rules, 2022, and 2 Model Prison Manuals, one of 2003 and one of 2016. [6]

Specific Provisions for curbing sexual harassment against prisoners and related case laws:

Indian Penal Code, 1860:

The provisions under the code that deals with sexual harassment against female prisoners are-

Section 376 (2)- This section ranging from various sub-clauses, specifically addresses rape committed against women under various custodial settings, such as police stations, jails, hospitals, and other related places.

The main aim of this provision is to give protection to these vulnerable convicts who may be at a higher risk of violence due to their confinement and their dependency on the people who are in authority. This provision outlines that police officers and other public servants, being responsible for upholding the law, if, ever encroach on it and commit offenses such as sexual harassment and rape while performing their official duty, would be subject to even stricter punishments including a minimum punishment of 10 years extending up to life imprisonment and other fines.

Other clauses such as (2) (d) of section 376, specifically tackle the current issue, and extend the protection of law to inmates of jails, remand homes, and various other places of custody. It makes the staff and other management personnel responsible for abusing their authority by committing acts of violence against inmates. This provision also recognizes the vulnerability of certain groups such as pregnant women, other individuals who are incapable of giving consent, those who may be under the dominance of the perpetrator and have to give forced consent, or other people who are suffering from mental or physical disability.

This provision lacks in terms of gender neutrality, as the victim could also be a male or a trans person.[7]

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:

Female prisoners also have rights under this act, and they are eligible to file complaints under the same.

Case laws:

Christian Community Welfare of India vs Government of Maharashtra (AIR 2004 SC 7)

In this case, the Supreme Court of India held that women can’t be arrested after sunset and before sunrise and an arrest can only be done in the presence of a female constable.

State of Maharashtra vs C.K. Jain

In this case, the supreme court of India held that if a female filed a complaint of rape, the general presumption should be taken that no woman would make a false allegation relating to such grave offense. They also emphasized that when a woman files a complaint against a police official for rape, a delay in making such complaints would be understandable, given the condition of such a convict.[8]

Case Studies:

Custodial Torture of Soni Sori-

Soni Sori, a prominent human rights activist and school teacher from Chhattisgarh, endured horrific custodial torture at the hands of law enforcement officials. Accused of aiding Maoist groups, she faced relentless persecution, including physical and sexual abuse, electric shocks, and forced insertion of chili powder and pellets into her body. Despite clinical evidence supporting her claims, she was denied bail and confined to various prisons for years. Even after her release, she faced restrictions on seeing her children and ongoing threats, including an acid attack suspected to be orchestrated by local authorities. The government’s failure to hold accountable those responsible for her torture underscores a grave injustice and a blatant disregard for human rights. Soni Sori’s harrowing ordeal highlights the urgent need for systemic reform to protect individuals like her from state-sanctioned abuse and ensure accountability for perpetrators of such heinous acts.[9]

CRITICAL ANALYSIS

How effective are these regulations?

There are several legislations on paper, that claim to protect the rights of prisoners in India, however, the ground reality is different. Model Prison Manual of 2016, provides for the making of specific prisons exclusively for women, but, there are only 18 out of 1401 prisons that are exclusively for women.

Numerous female inmates are confined within the women’s sections of general prisons, enduring a hellish existence due to exploitation by male inmates, fellow female inmates, staff, and management personnel at various correctional facilities, as well as by police officials and other authorities who exhibit barbaric arbitrariness toward these vulnerable individuals.

The Model Code for Prison and The Prisons Act, 1894 also provides for the appointment of female staff, and other sanitation and hygiene facilities, however, there is still a lack of female staff; 1 toilet is being used by 10 women, and lack of water at these places makes it hard to maintain sanitation.

Under the Model Prison Code, 2016, it is prescribed that appointed Advocates should regularly visit the prisons and provide legal aid services; members of NHRC and other medical people should also pay regular visits to keep these prisoners in check. However these principles only look good in writing, there is very little practical applicability.

The Children who are living with their mothers are also not provided with proper facilities for their biological, psychological, and social growth. Facilities like creche and recreational activities are not properly provided in every prison. In the name of a balanced and adequate diet for children, they are only given a glass of milk.[10]

AFTERMATH

What can be done further?

Now that the issue at hand has already been highlighted by the Calcutta High Court and the Supreme Court has also taken cognizance of the same, the matter is scheduled for hearing in Calcutta High Court before a criminal bench on Monday, February 12th. The Amicus Curiae, Advocate Tapas Kumar Bhanja has Proposed mainly three suggestions, including:

  • Ban of male staff in correctional homes during the presence of female prisoners.
  • Betterment of daily life of these prisoners.
  • And thirdly pregnancy tests should be done before admitting women prisoners so that any pregnancy that would be found later would be a clear indication of sexual assault.[11]

Adding to this third point of the Amicus Curiae, the author suggests that the three inferences we drew at the beginning of the article would play a major role in curbing such situations.

Firstly, we can keep a separate list for married inmates, and keep track of the scheduled conjugal periods provided to them, so that it would be relatively easy to separate whether the individual got pregnant because of harassment or other reasons such as the right given to her for procreation.

Secondly, if it is claimed, after the complaint comes in front of the authority, that the sex was consensual, the first thing that should be done is to check the mental and physical condition of the female convict, to know whether it was a case of coercive sexual intercourse or not, and even if it was clearly consensual then to lay down guidelines whether it could be allowed, keeping the decorum of these custodial places in mind.

Thirdly, if the case of an individual doesn’t fall under any of the grounds, then it would clearly be a case of sexual assault against the person, which should be strictly dealt with and the victim should not be kept in the same place as their perpetrator.

Some of the other suggestions in general which are drawn from other literature reviews are[12]: –

  1. Public Oversight of Prisons: National Policy suggests involving eminent public figures to visit prisons and provide independent reports to authorities for constructive feedback and transparency.
  2. Prisoners’ Panchayat and Grievance Redressal: The National Model Prison Manual advocates for the establishment of a Prisoners’ Panchayat and frequent meetings like Maha panchayat to address prisoners’ concerns and grievances, including specific councils for women prisoners.
  3. Special Provisions for Pregnant Women: Temporary release of pregnant women prisoners for childbirth outside the jail, suspension of prison terms for casual offenders, and proactive judicial intervention for bail before delivery.
  4. Improvement in Living Conditions: Enforcement of the Mulla Committee Report’s recommendation for self-contained family units for women prisoners, ensuring better living conditions and facilitating their rehabilitation into society.
  5. Elimination of Inhumane Prison Practices: Revision of prison laws to eliminate inhumane practices like prohibitions on singing or laughing, criminalizing refusal to eat, and strict footwear regulations.
  6. Establishment of Grievance Redressal Mechanisms: Implement a Grievance Redress System with complaint boxes for women inmates, review of grievances by committees, and mechanisms for reporting severe allegations like sexual harassment or torture.
  7. Access to Legal Recourse and Support: Facilitating communication between inmates, their legal advisors, and family members to address frustrations with imprisonment, along with avenues for submitting complaints during visits by authorities.
  8. Female Representation in Grievance Redressal Committees: Inclusion of high-ranking female police officers in grievance redressal committees to impartially review complaints made by women prisoners.
  9. Improvement of Basic Amenities: Strict enforcement of state prison manuals to ensure basic privileges for women inmates, including suitable living quarters, bedding, toilets, and adherence to hygiene standards.
  10. Safety Measures for Female Prisoners: Implementation of strict measures to prevent sexual harassment, including segregation from male prisoners and appropriate search protocols respecting privacy and dignity.
  11. Alternatives to Physical Searches: Consideration of alternatives to physical and intrusive search methods, such as body screeners and metal detectors, while maintaining safety and health standards.
  12. Record Keeping and Oversight: Maintenance of written records detailing search procedures and frequency, available for review by official visitors to ensure accountability and transparency.
  13. Segregation of Under-Trials and Convicts: Separate housing for under-trials and convicts to prevent violent incidents, coupled with discussions on gender concerns and human rights within the prison system.
  14. Employment of Female Workers: Adequate employment of female workers to handle ferocious incidents, coupled with strict disciplinary measures and consideration of retaliation risks.

CONCLUSION:

In Conclusion, despite having various legal acts, rules, regulations, guidelines, and model prison guides on paper, we are still failing in the implementation part, as the people who are appointed to enforce these laws are the encroachers of these laws and the culprits. To put it very simply, every human despite being on trial, being a convict, or a  criminal, deserves a certain level of humane treatment. The biggest problem or the root cause behind these issues is apathy towards these prisoners. Also, as per Professor Crenshaw’s theory of intersectionality, women have to face multiple kinds of harassment, a lot of these prisoners and victims are women which already makes them prone to sexual abuse and if she is from a lower caste as well, it would increase her chances of being subjected to multiple kinds of harassments. Hence all these points should be kept in mind while dealing with such issues.

“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.”

Written by- Aditi

[1] Dev, A. (2024, February 9). Prison Staff Regularly Sexually Abuse Women Prisoners – How Can We Address This Issue? Women’s Web. https://www.womensweb.in/2024/02/women-prisoners-are-fair-game-for-sexual-abuse-from-staff-what-can-be-done/

[2] Singh, S. S. (2024, February 8). Women prisoners in custody getting pregnant: amicus curiae tells Calcutta HC. The Hindu. https://www.thehindu.com/news/national/other-states/women-prisoners-in-custody-getting-pregnant-calcutta-hc-prohibits-entry-of-male-employees/article67825476.ece

[3] P., & P. (2024, February 9). Supreme Court takes cognisance of women prisoners getting pregnant in Bengal jails. Deccan Herald. https://www.deccanherald.com/india/west-bengal/sc-takes-cognisance-of-women-prisoners-getting-pregnant-in-jails-in-west-bengal-2888837

[4] Harassment in Indian Prisons. (2021, October 5). Law Insider India. https://www.lawinsider.in/columns/harassment-in-indian-prisons

[5] D.B.M. Patnaik Vs State of Andhra Pradesh, AIR 1974 SC 2092

[6] PRISON REFORMS. (n.d.). Ministry of Health & Family Welfare. Retrieved February 11, 2024, from https://www.mha.gov.in/en/divisionofmha/Women_Safety_Division/prison-reforms

[7] Ibid

[8] Physical Abuse of Women Behind the Bars in India. (n.d.). https://www.legalserviceindia.com/legal/article-7263-physical-abuse-of-women-behind-the-bars-in-india.html#:~:text=Irrespective%20of%20whether%20she%20decides,and%20Redressal)%20Act%2C%202013

[9] Dhawan, & Singh, Dr. (n.d.). SEXUAL HARASSMENT OF WOMEN IN INDIAN PRISONS: A STUDY. BiblioMed.Org.

[10] Dev, A. (2024, February 9). Prison Staff Regularly Sexually Abuse Women Prisoners – How Can We Address This Issue? Women’s Web. https://www.womensweb.in/2024/02/women-prisoners-are-fair-game-for-sexual-abuse-from-staff-what-can-be-done/

[11] Ibid

[12]Dhawan, & Singh, Dr. (n.d.). SEXUAL HARASSMENT OF WOMEN IN INDIAN PRISONS: A STUDY. BiblioMed.Org.

 

 

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Uttarakhand’s UCC Bill: Unravelling the Impact and Implications for Uttarakhand.

INTRODUCTION:

Uniform Civil Code (UCC) seeks to establish a uniform body of laws that regulates personal affairs, including inheritance, property rights, marriage, and divorce, regardless of a person’s religious beliefs. The Directive Principles of State Policy (DPSP) are policies that the Indian Constitution seeks to implement for the benefit of society. The DPSP is defined in Chapter IV of the Indian Constitution, which states that the state shall strive to establish a Uniform Civil Code (UCC) throughout India’s territory. Personal laws in India are currently governed by scriptures, which can be confusing and discriminatory towards women’s rights. The DPSP, which was enacted to ensure civil law uniformity, has yet to be enforced.

The fundamental goal of the UCC is to treat every citizen equally under the same set of civil laws, irrespective of their race, religion, caste, or section. According to Article 44 of Chapter IV of Indian constitution, “The State shall endeavour to secure for its citizens a Uniform Civil Code (UCC) throughout the territory of India.”

HISTORICAL BACKGROUND OF UCC:

The Uniform Civil Code (UCC) first appeared in the British government’s 1835 report on colonial India, which emphasised the need for uniformity in the codification of Indian law in terms of crimes, evidence, and contracts, and specifically suggested that personal laws of Hindus and Muslims be kept out of such codification.

Increased legislation dealing with personal issues in the far reaches of British rule compelled the government to establish the B N Rau Committee to codify Hindu law in 1941. The Hindu Law Committee’s task was to investigate the necessity of common Hindu laws. The committee, following scripture, recommended a codified Hindu law that would grant women equal rights.

The Rau Committee report was submitted to a select committee chaired by B R Ambedkar, which met in 1951 following the adoption of the Constitution. While discussions were ongoing, the Hindu Code Bill lapsed and was resubmitted in 1952. The bill was then passed as the Hindu Succession Act in 1956, which amended and codified the law governing intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs.

WHY UCC IS IN NEWS:

The Uniform Civil Code has been a source of contention and discussion in India for decades. Recently, the state of Uttarakhand took a significant step towards implementing a UCC.
Previously, the State government formed a five-member committee led by Desai to develop a draft proposal for implementing the UCC. The committee prepared a draft bill, which the chief minister introduced in the assembly. Following deliberations, the Uttarakhand assembly passed the Uniform Civil Code Uttarakhand 2024 Bill, making it the first state in India to implement a Uniform Civil Code.  

The Bill establishes common law for matters such as marriage, divorce, property inheritance, and so on, and it applies to all Uttarakhand residents with the exception of scheduled tribes.

HIGHLIGHTS OF THE UCC ACT:

  • The Uniform Civil Code establishes a common law for marriage, divorce, and property inheritance, replacing personal laws from various religions. The common code prohibits bigamy and polygamy, and provides equal property rights to both sons and daughters.
  • It eliminates the distinction between legitimate and illegitimate offspring, ensures equal property rights after death, and applies to both adoptive and biological children.
  • The law requires live-in couples to be legally registered. According to the proposed legislation, people who are in a live-in relationship must officially register their relationship within a month of starting it and obtain parental consent. Registration of such partnerships is required for “any individual residing in Uttarakhand or in a live-in relationship outside of the state.” Registration, however, may be denied if one partner is married, a minor, or if consent to the relationship was obtained through coercion or fraudulent means. Partners can also end their relationship by submitting a statement to the registrar.
  • The UCC Bill sets the marriage age at 18 for women and 21 for men across all communities. Furthermore, it is not permissible to file a divorce petition until at least one year after marriage.
  • The Uniform Civil Code will not apply to Scheduled Tribes (ST) community members.

WHY IS IT OPPOSED?:

  • The opposing views on the current bill stem from a variety of reasons. The passage of this legislation would potentially violate various communities’ religious autonomy by interfering with religious customs and traditions without their consent.
  • Some argue that a single code may not adequately accommodate the diverse customs and sensitivities of various communities. This, in turn, may limit the diversity of religious and cultural practices in India.
  • On the issue of live-in relationships, critics claim that the bill allows the government to intrude into citizens’ personal lives. They believe that the rules governing live-in relationships are an invasion of privacy.
  • The state’s opposition parties oppose passing the bill because they believe there was insufficient debate on it, and they have proposed that the bill be referred to a select committee of the House to examine its provisions.
  • Some religious leaders have questioned the government, asking why Scheduled Tribes are excluded but cannot be Muslims.
  • People also felt that personal-related practices are deeply ingrained in the religious and cultural identities of various Indian communities. Implementing a uniform civil code may require them to give up their identities, which could lead to turmoil in society and communal tension.

CONCLUSION:

For decades, the Uniform Civil Code (UCC) has sparked debate and discussion in India. It seeks to establish a uniform set of laws governing personal matters such as marriage, divorce, property rights, inheritance, and others, regardless of an individual’s religion. The implementation of the Uttarakhand Uniform Civil Code is a significant step towards equality and social justice. It reflects the state’s commitment to ensuring that personal laws are uniform regardless of religious affiliation. Though the bill has both supporting and opposing views, it will be interesting to see how the bill affects the lives of Uttarakhand residents as it works its way through the legislative process.

 

“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.”

 

Written by – Surya Venkata Sujith

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Regulatory Conformity in Digital Finance: Paytm’s Compliance Journey with RBI Directives

Introduction

In the fast-changing field of digital finance, regulatory compliance is essential for ensuring confidence, stability, and security. Paytm, India’s top digital payment provider, has faced numerous hurdles in complying with the RBI’s rigorous standards. The crux of the matter involves RBI issuing orders barring new deposits after February 2024. Restriction upon Paytm payment bank limited was imposed to not allow deposits, credit transactions, top ups in any customer accounts, wallets, FASTags, etc. after February 29, 2024

Legal background

The Reserve Bank of India, in exercise of its powers under section 35A of the Banking Regulation Act, 1949, had directed Paytm Payments Bank Ltd (PPBL or the bank) to stop onboarding of new customers with immediate effect The Comprehensive System Audit report and subsequent compliance validation report of the external auditors revealed persistent non-compliances and continued material supervisory concerns in the bank, warranting further supervisory action. Accordingly, in exercise of its powers under section 35A of Banking Regulation Act, 1949 and all other powers enabling it in that behalf, the Reserve Bank of India, has today directed PPBL as, [1]

After February 29, 2024, no more deposits, credit transactions, or top-ups will be permitted in any customer accounts, prepaid instruments, wallets, FASTags, NCMC cards, and so on, with the exception of any interest, cashbacks, or refunds that may be credited at any moment.

Customers may withdraw or use balances from their accounts, including savings bank accounts, current accounts, prepaid instruments, FASTags, National Common Mobility Cards, and so on, without restriction, up to the available balance.

After February 29, 2024, the bank should not provide any other banking services, including fund transfers (regardless of the name or type of the services, such as AEPS, IMPS, etc.), BBPOU, or UPI facilities.

The Nodal Accounts of One97 Communications Ltd. and Paytm Payments Services Ltd. will be cancelled as soon as possible, but no later than February 29, 2024.

Nodal accounts – Nodal Accounts are bank accounts that businesses open to hold funds on behalf of their customers and vendors. It was implemented by the RBI to ensure that no business or intermediary withholds illicit funds from its clients.

Challenges faced by Paytm

Paytm faces various hurdles in conforming to RBI requirements, including KYC compliance. The RBI requires strong KYC rules to verify customers’ identities and reduce the risk of financial crimes such as money laundering and terrorism financing. However, executing KYC rules presents practical hurdles, particularly in distant places with limited access to documentation. Paytm faces the tricky issue of balancing regulatory compliance with user comfort and accessibility.

The RBI-imposed transaction limits provide another problem for Paytm. While these limits are necessary to avoid misuse and ensure financial prudence, they can occasionally impede the smooth operation of digital payment platforms, especially for high-value transactions or during busy hours.

Paytm continues to prioritize data security as part of its regulatory compliance efforts. The RBI stresses strong cybersecurity measures to safeguard users’ sensitive information and avoid data breaches. Paytm will need to invest considerably in technology and infrastructure to ensure compliance with these severe security requirements.

Furthermore, ensuring interoperability with other payment platforms and banks, as required by the RBI, poses technological and operational problems. Interoperability allows for easy transactions across different payment systems, which increases user convenience. However, establishing interoperability necessitates substantial coordination and standardization efforts from multiple stakeholders.

Addressing regulatory issue

Paytm has a multifaceted approach to dealing with regulatory obstacles. The organization invests in cutting-edge technology and robust infrastructure to improve data security and compliance. Paytm also employs novel methods, like as biometric authentication and e-KYC, to streamline the KYC process and improve customer experience. Additionally, Paytm works closely with regulatory authorities and industry stakeholders to ensure that its operations are in line with developing regulatory standards. The company actively participates in industry forums and working groups to inform policy discussions and build regulatory frameworks that promote digital innovation and financial inclusion. Furthermore, the company, part of One97 Communications, is a leader in Indian fintech and faces challenges of regulatory scrutiny and customer uncertainty. The organisation also announced that it will set up a three-member advisory committee to strengthen the governance matters.[2]

Conclusion

Lastly, as India’s leading digital payment platform, Paytm has substantial hurdles with regulatory compliance. Paytm, on the other hand, addresses these difficulties head on by leveraging technology, engaging with regulators, and emphasizing user education, reinforcing its commitment to regulatory compliance, consumer trust, and financial integrity. As India’s digital economy evolves, Paytm’s path to regulatory compliance demonstrates the need of innovation, collaboration, and responsible governance in building a strong and inclusive financial ecosystem.

[1] https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=57224

[2] https://www.business-standard.com/companies/news/paytm-payments-bank-rbi-controversy-how-will-it-impact-the-customers-124020901485_1.html

“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.”

Written by- Namitha Ramesh

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