Introduction:

India has always been a country rich in culture where rites and customs have played a notable role. “Dowry” prevailed as one of the customs in Ancient India where a gift in cash or kind was given to a bride by her family to maintain her independence after marriage, but eventually, it became the only legal way to get married, with the British making the practice of dowry mandatory. [1] In the present time, it has turned out to be a stubborn custom, moreover, a curse for the society as it has increased the greed resulting in harassment and violence with the women. Thus, section 498 A was inserted in the Indian Penal Code, 1860 introduced in 1983 for the protection of the women in against the gruesome cruelty and violence by the husband and the relatives of the husband.

But there are always two sides to a story, if 498 A has become a shield for the women to protect themselves from the ill-effects of the dowry system, on the other hand, it has become a malediction for the men as it has started being misused for the benefits of support payment and different remuneration. Being a non-compoundable and non-bailable offense, it has created a downside where men are being constantly victimized and abused because of false complaints and allegations.

Section 498 A, Indian Penal Code, 1860[2]

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

No law is independent but is interdependent on the status which is normal in making clarity of the problem that has arose cruelty against women within the institution of marriage and has posed certain difficulties in matters of prosecuting the accused and proving the guilt.

Section 498A which deals with the punishment to the husband and his relatives if a married women is subjected to cruelty compelling her to commit suicide or cause grave physical or mental injury to her, and harassment with a view of coercing her or any of her relatives to meet any unlawful demands of property. The offence is cognizable, non-bailable and non-compoundable. The section has been made stringent so as to punish the culprit.

Section 498A provisions have somewhat always been discriminating towards men which need deep interpretation. Women misuse the legislation that has been designed to defend themselves from the abuse and brutality and make false claims about their husbands in order to get rid of them or actually defame the family. A higher proportion of acquittals are often put forward as evidence to suggest that Section 498A of the Indian Penal Code. This position appears to focus on interpersonal violence, overlooking the various subliminal factors governing the everyday lives of women, such as the varied forms of violence and the role of gendered state institutions in conceptualizing and implementing law.

The question arises that whether such false complaints are over-shading the actual cruelty & harassment with the women?

• It surely is!

False complaints raise the suspicion and the burden of proof lies on the women. People tend to blame the woman who had actually faced the gruesome cruelty by her husband or her in-laws because of frequent false complaints being filed in the Court. Court never believes to what people say, but presenting evidences and witnesses for the act of domestic violence and mental harassment eventually becomes a big task because what happens within the walls of a house can only be assumed or interpreted. And that is why culprits get a chance to manipulate the law; no matter if it’s a woman or a man.

Legal Position[3]:

Increasing number of false cases of Dowry harassment against the husbands has now become so serious that the Government of India is proposing to amend Sec 498A to make the offence as “Compoundable” & “Bailable”, which at least gives a fair chance to the opposite party to prove their innocence before the arrest.

The Supreme Court did not shy away from observing that a large number of cases have come to light where the complaints u/s 498A IPC are not bona-fide but since it is for the legislature to legislate, no action can be taken against it which can devise mechanisms to tackle frivolous complaints under 498A, the courts would have to continue to function within the prescribed parameters of law.

Although this provision was enacted to safeguard and protect the interests of married women, but there has been a growing tendency amongst them to misuse this provision by filing false cases against their innocent husbands and families including parents of advanced age, minor children, siblings, grandparents, etc, and thereby, causing them harassment and even arrest without any verifiable evidence of physical or mental injury.

The Law Commission addressed the issue concerning abuse of this provision in its 243 reports on IPC Section 498A. The commission has recommended that the offence can only be made compoundable with the court’s permission, and precautions must be taken before granting

Thus, one who brought 498A into action conceiving it as a shield against cruelty for women, i.e., the Supreme Court, is now considering it as a legal terrorism. Because misuse of Section 498A diminishes the true credibility and the innocent is held liable for the offense which he never committed. That is one of the several reasons for calling it an Anti-male law.

Constitutional validity[4]:

Several cases have come into light where the allegations are not bona-fide and have been lodged with oblique reasons. In such cases, the acquittal of the accused does not wipe out the ignominy suffered during and before the trial in all cases. Adverse media coverage occasionally adds to the misery. New legal terrorism is created by the abuse of the clause. The provision is intended to act as a shield and not as the weapon of an assassin. A mere probability of a legal provision being misused does not invalidate it.

In the case of Arnesh Kumar v. State of Bihar[5], the Hon’ble Court held that, in an effort to ensure that police officer does not unnecessarily arrest the accused and that the Magistrate does not allow for casual and mechanical detention in cases pursuant to Section 498A IPC. Police officers not to arrest the accused immediately after the filing of a case under 498A IPC; they should satisfy themselves that arrest is necessary under parameters that flow from Section 41 CrPC (the judgment sets the parameters).

In case of, Rajesh Sharma v. State of Uttar Pradesh[6] the Hon’ble Court issued instructions to prevent the misuse of Section 498-A IPC which was further amended in the Manav Adhikar v. Union of India Social Action Forum[7].

There are several landmark judgments given by the Supreme Court of India, which proved and gave an impression that misuse of 498 A is no joke. In the case of Bibi Parwana Khatoon v. State of Bihar (2017) 6 SCC 792[8], the relatives of the woman had alleged that the husband and the in-laws killed her and therefore, a case had filed u/s 498 A, but in the further investigation, it was found that all the complaints were false and there was no evidence to prove the offense beyond reasonable doubt.

In the recent judgments of Prem Kumar vs. The State of Madhya Pradesh[9] (M.Cr.C. No.37680/2020), Deepak vs. Smt. Radha Rani[10] (First Appeal No. 815 of 2017), court quashed the false complaints made against the husbands and their families u/s 498 A, which were filed with the intention of gaining personal profits and harassment to the other party and hence nothing could be proved against the husband and his family.

Conclusion:

As the law and rules are gender neutral, the justice must be too. Each side of the story must be examined and analyzed carefully so as to prove the real culprit guilty because Misuse of Section 498A is not a rumor, but a fact, which has been proved now. The effect on society of this example is terribly unhealthy. The abuse does not mean that we are removing the usefulness of the laws that impact the wider public interest, but the justice should prevail for every section of the society irrespective of Gender.

Misuse of Section 498A IPC isn’t a rumor, it’s proved !!

[1] https://pulitzercenter.org/projects/dowry-system-india-trend-changing

[2] https://indiankanoon.org/doc/538436/

[3] https://acadpubl.eu/hub/2018-119-17/1/98.pdf

[4] https://blog.ipleaders.in/misuse-section-498a-ipc/#:~:text=Misuse%20was%20alleged%2C%20particularly%20against,institutional%20structure%20of%20courts%2C%20police.

[5] https://indiankanoon.org/doc/2982624/

[6] https://indiankanoon.org/doc/182220573/

[7] https://indiankanoon.org/doc/81618143/

[8] https://indiankanoon.org/doc/63456150/

[9] https://indiankanoon.org/doc/143910047/

[10] https://indiankanoon.org/doc/192552263/

“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries,”

– Justice Indu Malhotra

Introduction

LGBT is the term used for defining people who are lesbians, gay, bisexuals, and transgender. The process is as universal as it gets: when a baby is born, a doctor, parent, or birth attendant announces the arrival of a “girl” or “boy.” That split-second assignment dictates multiple aspects of our lives. It is also something that most of us never question. But some people do. Their gender evolves differently from their girl/boy birth assignment and might not fit rigid traditional notions of female or male. Gender development should have no bearing on whether someone can enjoy fundamental rights, like the ability to be recognized by their government or to access health care, education, or employment. But for queer people, especially transgenders, it does—to a humiliating, violent, and sometimes lethal degree[1].

Mental health challenges are an important concern for many lesbian, gay, bisexual, transgender (LGBT) individuals in India. In September 2018, the community in India celebrated after the case of Navtej Singh Johar v Union of India[2], where the Supreme Court struck down the colonial ban on gay sex. It was an important movement for the LGBT community and was accorded all the protection of the constitution. Section 377 included any private consensual same-sex conduct within the scope of itself. This came in as a huge relief for the LGBT community who desired a life similar to other heterosexuals. Before the judgment, the status of the homosexuals in the country was as of criminals that they were left with no option but to change their orientation and change their way of living. However, even after the judgment, LGBT people in India continue to face persecution and discrimination. People are still being abused through arbitrary arrests and unfair trials. The community still lacks the rights for marriage and adoption.

This chapter investigates and considers how homo-bi-transphobia is represented and reflected in Indian social, political, and legal structures – including the healthcare system. Moreover, homo-bi-transphobia intersects with discrimination on the basis of different categories of to create deeply personalised and complex experiences. Thus any consideration or discussion about how to improve LGBT rights access to equality must be done within an anti-racist and anti-oppressive framework that acknowledges the intersectional nature of the identities of many queer individuals.

Global Advocacy on LGBTQ Rights

Around 80 counties in the world still criminalize LGBT relationships in some way and many other types of law deny even the basic rights and dignity to the community. The countries that allow same sex marriages have not addressed all rights based concerns. Voices have been raised globally by the community to acquire their basic rights such as marriage and adoption. In the lead-up to the 2014 Winter Olympics in Sochi, LGBTQ rights be came a central theme in Western media proclamations of a new Cold War.1 The focus on Russia’s anti-gay politics was subsequently overshadowed by the crisis 95 between Russia and Ukraine, which has dramatically altered Russia’s image on the world stage and ended the “reset” era of Russian relations[3].

The conceptual frame of “homonationalism” for understanding the complexities of how “acceptance” and “tolerance” for gay and lesbian subjects have become a barometer by which the right to and capacity for national sovereignty is evaluated[4]. The language of homonationalism is appearing in academic and activist projects across North America, Europe, and now India. For example, a Paris- based group called “No to Homonationalism” has contested for the campaign proposed for Gay pride in Paris because of its taking up of the national symbol of the white rooster. A 2011 conference on sexual democracy in Rome took issue with the placement of World Pride in the area of the city housing the highest percentage of migrants and staked a claim to a secular queer politics that challenges the Vatican as well as the anti-migrant stance of European organizing entities[5].

One of the first opportunities for global engagement on sexuality was the 1975 UN Conference in Mexico to mark International Women’s Year. This pivotal moment brought together lesbians from the North and South, who engaged with the feminist movement on sexuality and fostered development of networks that were to play a key role throughout the UN International Women’s Decade to follow. Around the same time (1978), the European-based International Gay Association (now known as the International Lesbian, Gay, Bisexual, Trans and Intersex Association, or ILGA) was founded. One of its aims was to maximize the effectiveness of gay organizations by coordinating political action on an international level, in particular applying concerted pressure on governments and international institutions Sexual and gender minorities have increasingly sought to organize in important regional politics sites as well[6].

International LGBT advocacy organizations and programs are increasing in number and influence. Though financially small, the global LGBT rights movement has the potential to increase its impact in the coming years. This impact could be even greater  and positive changes could happen faster, if funders could make key investments in supporting collaborative work among organizations and programs, building research, data and information for the field and helping organizations and programs connect with other funders and capacity building resources. This groundwork is seen as a crucial step in the fight to secure LGBT rights and equality around the world.

Marriage Rights and LGBTQ Youth

In terms of anthropological theory, sexual prejudice constitutes a form of structural violence that impugns human dignity and development. The dilemma of an young person is unexplainable who is attracted to the same gender but who, in the course of growing up, was told by her family, science, and religion that homosexuality is abnormal. She was likely to perceive herself unfit for any of the normative functions of her gender, social class, ethnic or religious community resulting in psychological distress, depression or worse. India is a country where straight sex is seen more as a blessing whereas gay sex is viewed as a sin. There is a generational split in India between younger and older people with a majority of younger people supporting the notion of “gay” marriage or marriage rights for gay, lesbian, and bisexual couples. This enhanced support paradoxically comes in light of increasingly restrictive state-based marriage laws[7].

In this milieu, the most satisfactory course would be the recognition of same-sex marriages under Indian personal marriage laws. In India, Christians, Muslims and Hindus have different laws in relation to marriage, succession etc. The Hindu Marriage Act that governs Hindus, Sikhs, Jains and Buddhists states that a marriage may be solemnised between any two Hindus[8]. It also specifically provides that the bridegroom should have attained the age of twenty one and the bride eighteen[9]. The Christian Marriage Act provides that the age of the man shall be twenty one and the age of the woman eighteen[10]. Since Muslim marriages are not governed by a statute, there is no statutory definition of ‘marriage’, but they are normally considered to be a contract for the purpose of procreation[11]. Thus, all Indian personal laws appear to envisage marriage as only a heterosexual union.

There are two aspects of marriage in India, one is the social aspect of two consenting adults decide to go through a ritual in the presence of friends and family and treat his or her partner as a spouse in India. However, there is a legal aspect of marriage that bestows rights and responsibilities on two people which include property inheritance, maintenance of the spouse and so on. While in heterosexual marriages, such rights and responsibilities comes in a package, for the queer people such a law isn’t there in India. The Special marriage act is only meant for heterosexual couples and doesn’t even take into account transgender people. The strong opposition that a vocal section of Indian society has against the aspirations of LGBT community cannot be gainsaid. In India, along with rapid modernization, there has been growth of conservative and revivalist ideas, this opposition in the name of tradition, religion and culture however misguided will be strong and will act as an impediment to liberal legislation[12].

Many same sex same sex couples wish to marry simply because they are part of a culture in which marriage has long been represented as the ideal institution of connection and commitment and this belief transcends the bounds of sexual orientation. They also believe that the choice of marital partner is an important personal decision, over which particularly the state, should have no control[13]. Thus the straightforward argument in legalizing the same sex marriage is that if two people want to make a commitment of marriage, they should be given the liberty to do so and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity[14]. Many homosexual individuals might have the dream of being a part of the social structure by entering into wedlock. In a democratic country like India, where the constitution guaranteed the right to equality and life, discriminating a minority group and denying them the rights is completely contradictory to the laws of the land. The law should not be discriminatory towards genders. It should treat every individual equally as same sex and heterosexual relationships do not differ in their psychological dimensions[15].

Legal Rights for the Community

After the Central Adoption Resource Authority (CARA) issued guidelines for adoption, same sex couples, single persons and unmarried couples have found it increasingly difficult to adopt[16]. Based on sexuality alone, many citizens of India have been denied equality in various aspects of their lives. This can be seen in the struggles for marriage equality, adoption rights, the opportunity to serve openly in the military, and many other struggles to end sexual orientation-based discrimination.

A crucial point in the discussion on the politics of liberation is the gay and lesbian assertion on their rights – “to be treated equally, fairly, and equitably as citizens of India; that respect should be given to who they are, what they are; the right to choose, the right to be unmarried and the right to their own sexual orientation”. The demand for freedom and equality of gays and lesbians in India was first put forth in an organized manner in the end of 1991. The Charter of Demands which contains 19 elements was published in the last chapter of the report Less than Gay. The significant elements include: Repeal of all discriminatory legislation including Section 377 of IPC and relevant sections of Army, Navy and Air Force Act: enactment of Civil Rights legislation; amend the Constitution to include equality before law on the basis of sex and sexual orientation; establish a commission to deal with human rights violations; amend the Special Marriage Act to allow same sex marriages[17].

Till date, only the first cause, i.e., repealing of the discriminatory section in the IPC have been addressed and other demands have been left untouched. Lesbians and gays are increasingly seeking to form families through the adoption of children. However, same-sex couples face substantial difficulty in attaining equitable treatment from the courts in adoption proceedings. An examination of judicial opinions reveals that courts routinely discount empirical evidence and disregard the specific facts of a case in denying adoption to lesbians and gays. The family arena is one in which it has been particularly difficult for lesbians and gay men to gain equal footing with heterosexuals[18]. Proponents of same-sex adoption contend that “discrimination against homosexuals is prevalent in the family law context where judges and agencies are able to exercise broad discretion”[19]. Lesbians and gay men who wish to raise children often confront prejudice and misconceptions about their sexual orientation that “turn judges, legislators, professionals, and the public against them, frequently resulting in negative outcomes such as loss of physical custody.

The idea of human rights rests on the central premise that all humans are equal. It follows that all humans have dignity and all humans should be treated as equal. Anything that undermines that dignity is a violation, for it violates the principle of equality and paves the way for discrimination. The human rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI) are coming into sharper focus around the world, with important advances in many countries in recent years, including the adoption of new legal protections. The legal protection should include the protection of law regarding job opportunities, marriage and adoption which would place the community in par with the heterosexuals.

Conclusion

For many years homosexuality had been considered to occur in an individual due to being a part of wrong environmental influences. There also was a point in time when homosexuality was considered to be a mental illness/disease even by the American Psychiatric Association, but sometime in 1973 they removed homosexuality from the diagnostic and statistical manual of mental illnesses. But many people till date live with the impression that homosexuality is an illness. In the recent past we have witnessed many ministers and government officials who wish to open rehabs for homosexuals, so as to “fix” their “problem” for the “betterment” of society.

A person’s choice of partner should not be restricted because of his or her sexual orientation. It not only restricts their basic fundamental rights of equality and privacy but it also takes away their right to live with dignity enshrined within the right to life and liberty. In India, just because a person is born out the two major genders they are ostracized and are they rejected on the grounds that they belong to a third gender. In order to create better-living place for LGBT community, the Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stakeholders to identify the measures and to implement the constitutional goal of social justice and the rule of law.  There are no laws protecting gays and lesbians from discrimination at the workplace or laws that allow them to marry their partner of choice.

The emerging gay and lesbian movement offers not just alternate identities but prospects for social reconstruction. In spite of its marginality, the movement rejects the monolith and the mass. It is a reminder that if forced conformity is to be resisted it must be by representing human lives as multiple; selfhood as several; communities as voluntary and various. A new definition of political pluralism would be one that judges a society not only by the plurality of groups it tolerates, but also by the plurality of identities it allows individuals to assume. There are still places in India where people haven’t even heard about the LGBT and still think homosexuals and trans people should be ostracized from the society. However the Researcher strongly feels that India can be considered free only when society no longer differentiates in its treatment of people who may be lesbian, gay, bisexual, transgender, cisgender or straight.

References:

[1] Neela Ghoshal and Kyle Knight, Rights in Transition: Making Legal Recognition for Transgender People a Global Priority, Bristol University Press, Policy Press. (2016).

[2] Navtej Singh Johar v Union of India, AIR 2018 SC 4321

[3] Michele Rivkin-Fish and Cassandra Hartblay, When Global LGBTQ Advocacy Became Entangled with New Cold War Sentiment: A Call for Examining Russian Queer Experience, The Brown Journal of World Affairs, Vol. 21, No. 1 (Fall/Winter 2014), pp. 95-111.

[4] Jasbir Puar, Terrorist Assemblages: Homonationalism in Queer Times (Durham, N.C.: Duke University Press, 2007).

[5] Jasbir Puar, Rethinking Homonationalism, International Journal of Middle East Studies, Vol. 45, No. 2, SPECIAL ISSUE: Queer Affects (May 2013), pp. 336-339.

[6] Kim Vance, Nick J. Mulé, Maryam Khan and Cameron McKenzie, The rise of SOGI: human rights for LGBT people at the United Nations, University of London Press, Institute of Commonwealth Studies. (2018).

[7] Michelle A. Marzullo and Gilbert Herdt, Marriage Rights and LGBTQ Youth: The Present and Future Impact of Sexuality Policy Changes, Ethos, Vol. 39, No. 4, Psychological Anthropology and Adolescent Well-Being: Steps Toward Bridging Research, Practice, and Policy (December 2011), pp. 526-552.

[8] Hindu Marriage Act, 1955, S. 5.

[9] Id.

[10] Christian Marriage Act, 1872, S. 60.

[11] Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer relationships in India, Orinam, http://orinam.net/resources-for/law-and-enforcement/same-sex-marriage-in-india  (last visited March 31, 2020).

[12] Vikram Raghavan, Taking Sexuality seriously, The Supreme Court and the Kaushal case, Law and other things, (December 2016, 2013), http://lawandotherthings.blogspot.in/2013/12/taking-sexuality-seriously

[13] Mary. L. Bonauto, Goodridge in Context, 40 Harv. C.R.- C.L.L, Rev. I (2005).

[14] Martha Nussbaum, A right to Marry? Same sex marriages and Constitutional Law, Dissent Magazine (2009).

[15] Gregory.M.Herek, Legal Recognition of Same Sex Realtionships in the United States: A social Science Perspective,61(6) Amer Psycho. 607-621 (2006).

[16] Siddharth Narrain & Birsha Ohdedar, supra note 11.

[17] Sherry Joseph, Gay and Lesbian Movement in India, Economic and Political Weekly, Vol. 31, No. 33 (Aug. 17, 1996), pp. 2228-2233.

[18]  Hollandsworth, Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom, 3 Am. U. J. Gender & L. 183, 184-85 (1995).

[19]  Rhonda R. Rivera, Legal Issues in Gay and Lesbian Parenting, 199 Frederick W. Bozett ed., 1987.

Introduction:

Society is a group of people living with each other. The basic need of human being is peace and security through human beings nature is competitive and self-assertion, due to this nature, conflicts in society is the common problem. Peace and security needed for the development. Certain moral sentiments develop in the history of human society. There is a relationship between crime and immorality. In early societies, these crimes arrow out of the feeling and conduct that offended, which direct threatened to the general security. Crime is a changing phenomenon dependent upon the social development of a people that are upon the fundamental interests and values dominating their common beliefs. Due to the different common beliefs, conflict arises among the individuals, to resolve a conflict the set patent rule is to require therefore the laws are developed in every society.

With the development of society, the laws are known as criminal laws, civil laws. The act which is prohibited by that different laws is known by the different name that is civil wrong or crime. Initially, the concept is not as wrong but it is recognized as a sin, and mostly it generally regulated by the religious institution. Because the religious institutions are more powerful, then the sovereignty concentrates towards the kings, and the source of law has undergone a change. Now the king or crown is the law-making authority and for the settlements of the conflicts, he set the pattern, which divides the wrongs into civil wrongs and criminal wrongs. In other words, on the basis of the gravity of the wrongful act, it is going to meager, and more grievous acts are considered against the state and going to be regulated by different laws of the rule of patter. This rule of set patterns are known as criminal law, thought the criminal act directly affects the individual but it reflects on the entire society therefore the state is taking its cognizance more seriously and it gives more importance to the criminal law

DEVELOPMENT OF CRIMINAL LAW IN INDIA      

CRIMINAL JUSTICE IN ANCIENT INDIA

The development of the Legal systems in India ascends from the ancient period when various kings ruled the land of India right from 3000 B.C.E to 1001 C.E and beyond. India had a similar system of law for over 4000 years. The Neethi and Dharma gave by the great Hindu lawgiver Manu were common or similar in nature The Dharmasutras and the Kautilya‟s Arthashastra, however, present a more detailed and well-developed system of criminal adjudication prevailing in their time. The Niti shastra mentions King as the fountain of justice and it was his sacred duty to punish the wrong-doers and if he flinched from discharging this duty, he was bound to go to hell. In early society, the victim was supposed to punish the offender in a manner that was rather retaliatory and revengeful. This was, naturally, governed by chance and personal passion. The advanced Rig-Vedic period highlights that the punishment of a thief rested with the very person wronged. These rules helped in determining the appropriate behavior of people and the action that was to be taken against those who disobeyed. The code of conduct governing the affairs of the people came to be known as Dharma or law. With advancing stages, the man felt that it was more convenient to live in society rather than in small groups. Organizations based upon the principle of blood relationship yielded, to some extent, to larger associations in the societies. In the very early period of the Indian civilization great importance was attached to Dharma. Everyone was acting according to Dharma and there was no necessity of any authority to compel obedience to the law.

CRIMINAL JUSTICE IN THE SULTANATE PERIOD

The sultans implemented Shariat or the Islamic Criminal law and provided punishments as the main sources of which were the Quran, the Hadis, and Ijma. The ecclesiastical cases were separated from the criminal and civil suits. The durbar of the sultan constituted the highest civil and criminal court of justice which took original as well as appellate cases. The sultan was superior to the court which consisted of the qazi-i-quzat or the chief justice of the empire. Muhtasib the censor of public morals acted as police cum judge in the observance of the canon law by the Muslims. The village panchayats were provided with the sanction of the state to administer justice according to the customs, traditions, and the personal law of the populace. The penal code was strict and provided physical torture and capital punishment.

CRIMINAL JUSTICE SYSTEM IN BRITISH INDIA

• Changes in Criminal Law 1772

Warren Wastings brought to light, his judicial strategy for the administration of justice in Bengal, Orissa, and Bihar. In justification of the rigorous punishment proposed to be inflicted it was pointed out that dacoits were very different from the robbers in England, they are robbers by birth. In 1773 a certain proposal for its modification was formulated and Hastings suggested abolition of the privilege granted by the Muslim law to the son or nearest the kin to pardon their murderers of their parents. Warren Hasting contended that it was a law of Barbarus construction and contrary to the ideology of civil society and yet the matter did not proceed to any conclusion for the rest of his tenure as the governor-general.

• Changes in Criminal law 1790-93

The first initiative for the modification of the Muslim Criminal law was taken by Cornwallis in 1790. He abrogated crucial Muslim laws which were then formulated by Abu Hanifa which illogically maintained that a person was not liable for punishment of murder if the crime was committed by strangling, drowning, poisoning, or with a weapon that was not made of iron. According to the law of then, the kin of the deceased didn’t have any right to remit the sentences of the person convicted. Also, earlier the Muslim law did not allow a Hindu witness to testify against the Muslim accused. However, this law was abolished.

• Changes in 1797

There were times when certain confusions and overlaps arose in the law of homicide and it was restated in 1797 for the purpose of regulation. The intention was to do away finally with all operations of the will of the heirs. In the case of murder, it was laid down that a prisoner convicted of willful murder was to be punished without any reference to the heirs of the person killed. Another innovation made at that time was to substitute imprisonment for blood money. According to Muslim law, a person convicted of homicide was liable to pay blood money. The court of the circuit was to commute the fine to imprisonment for such period as it’s considered adequate for the offense. The Regulation XIV of 1791 was an important measure that was inspired by humanitarian and benevolent spirit as it granted relief to the person already in prison on account of their inability to pay blood money. Regulation 17 of 1797 brought out the concept of rigorous punishment for it.

• Changes in the Criminal Reform 1807-32

The process of modifying and adapting the Muslim law of crimes continued. Punishments for perjury and forgery were enhanced through Regulation II of 1807. Exemplary punishments were prescribed for Dacoity through Regulations VIII of 1808 as the crime has increased enormously. By Regulations XVII of 1817, the law relating to Adultery was modified. The need for four competent male witnesses was rigorously insisted upon and the presumptive proof was not regarded sufficient to warrant a conviction for the offense. The regulation laid down that conviction for the offense of adultery could be based on confessions, creditable testimony, or circumstantial evidence. The maximum punishment to be inflicted for the offense was fixed at thirty-nine stripes and imprisonment with the hard labor of up to seven years. Married women were not to be prosecuted on such charges.

THE CODIFICATION OF THE LAWS

An All India Legislature was created after 1833 and through subsequent reforms, the Indian Penal code in 1860 was enacted. During the period from 1833-1860, the criminal law was enhanced and it was developed that thugs came to be punished with imprisonment for life the hard labor, the concept of slavery was declared to be non-recognizable in any court of the company, transportation for life for dacoits was introduced with imprisonment for any shorter term with hard labor. It may also be mentioned punishments prescribed for offenses by the British Administrators were very strict in nature at first, with an intent to suppress crime. But as society stabilized, and law and order situation improved, and the incidence of crime lessened, liberalizing tendencies set in and the rigors of punishment were somewhat mitigated.

THE INDIAN PENAL CODE 1860

The government in Britain in 1833 appointed a commission known as the „Indian Law Commission‟ to inquire into the jurisdiction, powers, and rules of existing courts and to make reports setting forth the results of the inquiries and suggesting reforms. The law commission worked on the developments of Anglo-Indian Codes from 1834 to 1879 and one of the most important contributions of the First Law Commission was submitted by Macaulay in 1837 as the Indian Penal Code which was passed into law in 1860. Another important law that was codified was the code of criminal procedure. When it was first passed in 1861, the Code of Criminal Procedure fiercely guarded “privileges” or “rights” as they were alternatively described as and made the law both a symbolic and an actual marker of imperial power The code secured the legal superiority of “European-born British subjects” by reserving to them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments, all this while maintaining and displaying European power and prestige. As Legislative Council Member Thomas was of the view that whether the planter gets justice or not at the hand of the Native Magistrate is rather a secondary consideration; the mere fact of his having, on some trifling charge, had to appear before and be tried by a Native Magistrate, of the same caste and family. The codification of such law of the criminal motion established a structure in the Legal System of India and it continued to dominate through the years of British Rule in India.

CRIME IN PRESENT ERA

Initially, criminal law preserves public order and morality. Then the phase of civilization comes, during that period also, criminal law was plain and crime was simple and limited in nature. The jurisprudence today knows that no crime can be committed unless there is a mens rea and actus reus. Almost all the crime requires proof of a mental element of some sort. Some court has held that all crime exists primarily in the mind. Every offense requires a particular state of mind expresses in the particular provision of the law by the words, ‘with intention’, ‘recklessly’, ‘unlawful’, ‘malicious’, ‘willful’, ‘knowingly’, ‘knowing or believing’, ‘fraudulently’, ‘dishonestly’, ‘corruptly’ etc. there is the various state of mind which are different from each other. However, these all states of mind are coming under the fundamental tenets of criminal liability. Due to the technical development, human activities are subjected to statutory liability whenever any person performs an act though he is not having any special state of mind, as required in the initial period, then also still he is criminally liable. This is called strict liability; a statute imposes such a liability.

Thus, criminal law has evolved from the times immemorial to the cyber age and is being developed constantly. It should not forget that criminal law is an instrument of criminal law that is gearing up for a revolution. This revolution gives a common way to commit a crime without going to a particular place that is the computer. In present days the offenses regarding money or documents can be committed by way of a computer or by using cyberspace or by trespassing the authorized cyberspace without the permission of the concerned person or legal occupier. It means the criminal law though not change along with the time but the way of committing the same crime has undergone a change.

CONCLUSION

The essential object of criminal law is to protect society against criminals and law-breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed punishments for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law and the procedural (or adjective) criminal law. Substantive criminal law defines offenses and prescribes punishments for the same, while the procedural law administers the substantive law.

REFERENCES

• Criminal Justice system, Science Direct, available at: https://www.sciencedirect.com/topics/psychology/criminal-justice-system , last visited on 23^rd March, 2021.
• The Criminal Justice System, Introduction to Sociology, Lumen Learning, available at: https://courses.lumenlearning.com/wm-introductiontosociology/chapter/the-criminal-justice-system/ .
• History of Criminal Law Procedure and Criminal Justice Reforms in India, Legal Service India, available at: http://www.legalserviceindia.com/legal/article-2096-history-of-criminal-law-procedure-and-criminal-justice-reforms-in-india.html#:~:text=By%20the%2018th%20century%2C%20European,govern%20a%20group%20of%20people.
• Evolution of Criminal Justice Systems, Criminal Lawyer group, available at: https://www.criminallawyergroup.com/the-evolution-of-criminal-justice/ .

INTRODUCTION

The general principle of law is that the evidence which is not tested or proved is not admissible in the court of law. That means the administration of oath and cross-examination of pieces of evidence plays a major role. So, we can say that hearsay shreds of evidence are not admissible in the court of law. But here comes an exception to this basic principle of law due to the necessity in imparting justice to people e.g. The statement was given by the person in a death bed stating the cause and circumstances leading to his death. It is believed that a person in his death bed who is going to leave this earth will speak the truth and his words have a great value in our culture. Ignoring such statements will lead to injustice so our Law of Evidence has a great for these statements known as Dying Declaration.

PROVISION RELATING TO DYING DECLARATION IN LAW OF EVIDENCE

Dying declaration in the law of evidence is mention in section 32 subclause 1. Section 32 (1) of the Indian Evidence Act explains that, ‘the statement made in respect to cause of his death or tells the circumstances that lead to death of that person or certain transaction lead to loss of life, where the causes leading to the death of person come in the question frame. Those statements are said to be relevant by the court at time the person who made the statement is alive or dead, to which it is under the expectation of death caused, the nature of case proceeding come with a question of the cause of death of that particular person.

MEANING OF DYING DECLARATION

It is derived from the word ‘leterm motem’ which means words said before death. In very basic meaning, a dying declaration is a statement of the person who is dead. [1]We can also say that person’s last words before dying explaining the cause of death. It governs on the principle ‘Nemo Moriturus Praesunitur Mentire’. This principle states that, a man after death will not be able to encounter his maker (god) with a lie in his mouth. 

Section 32 of the Indian Evidence Act provides 8 circumstances by a person who is dead, who is unable to give evidence in court, or whose attendance cannot be counted at the trial of court, or by the delay which is: it relatable to the cause leading to death, or who cannot be found at specific time without delay and expense or it should be made in the cause of some business, it must not be with the interest of maker, there must be the existence of any sort of relationship or relating will deeds or family affairs, or it must be giving opinion relating to the topic of public right, custom, or general interest, or made by several persons, expressing feeling towards the same topic occurred, or a matter in question, or related to a transactional document relating to section 13 clause a.[2]

Illustration: A and B have a fight in which A hits B with a knife. B falls. On seeing B on the ground C asks him and B answers that A had hit him with a knife so the statement giving to c is a dying declaration and C can move to court.

FORMS OF DYING DECLARATION

Dying declaration can be given orally or written. Although oral pieces of evidence are always directly admissible section 32 and section 33of the evidence act are its exceptions. And even they are the exceptions of the fact that hearsay evidence is not applicable. Two types of hearsay evidence are First-hand hearsay evidence and another one is Second-hand hearsay evidence. First-hand hearsay evidence is needed to be proved means they require corroboration and even require oath and cross-examination by the opposite party. Second-hand hearsay evidence is the derivative evidence. these are the other person’s evidence than the actual (best evidence) when he is not available. This other person is not required to take an oath and cross-examining the document for the reason of circumstantial genuineness. The Gestures are also involved in the form of dying declaration. This was held in the case of Queens Empress v. Abdula.

There is no format for dying declaration. In the case of Sant Gopal v. State of U.P. 1995 it was held that the best way of dying declaration is a question-answer form and in narration. But the dying declaration is not complete if it doesn’t reveal the relevant fact, names, and circumstances which have led to the death of that person.

VALUE OF DYING DECLARATION

Although the dying declaration doesn’t need to be recorded by Judicial Magistrate. But if it is so then recording by a judicial magistrate has more value than a recording by a police officer. There is no need for corroborative evidence to support the death statement if it is recorded by the Judicial Magistrate. 

APPREHENSION OF DEATH NECESSARY OR NOT?

In English law, there must be an expectation of death but in India expectation of death is not important. Illustration: A is a wife of B who does cruelty to A. A written letter to C who is a sister of A about the cruelty done to her by B and also asked her not to tell their parents about this as they would get worried. After 3 months the dead body of A was found in the bedroom of A. At this time letter given to C by A can be used as a Dying declaration and is admissible under the Indian Evidence act. But it is necessary to corroborate the evidence. 

In the case of Pakala Narayan Swami, the deceased person told his wife that he is going to the accused home to collect a loan but then the deceased got dead then the statement given by the deceased was admissible in the court but that need to supported by other evidence.

 Sharad Bhirdi Chand Sarda v. State of Maharashtra 1984 is one of the case in which court held that it is not very important that the person giving a declaratory statement should be in expectation of death.[3]

Similarly, in the case of Kulwant Singh v. State of Punjab 2004, It was held that apprehension to death and death statement made to the judicial magistrate is not necessary.

Moreover, in another case of Bhagirath v. State of Haryana 1977, the court was of the opinion that it is known that the person has died at the time when a statement was being recorded there was no cause of death then too the dying declaration is admissible. 

In the cases of dowry death, bride burning where the death took place in a short period then dying declaration of that women would be admissible in the court of law. Moreover, where there is a case of Dowry’s death, the dying declaration should be noted or recorded soon in the medico-legal register by a medical officer and it should importantly be signed by him. In the case of the state of U.P v. Harimohan, the victim wrote a letter to her father to take her home otherwise his mother-in-law and brother-in-law would murder her, two days before when the murder took place. Then in this case the dying declaration in the form of the letter given by women.

CORROBORATION OF DYING DECLARATION WITH THE HELP OF CASE LAWS

Mumma Raja v. State of M.P. 1976: In this particular case it was held that there is neither a rule of prudence nor the rule of law that dying declaration necessarily be acted with corroboration of other evidence means that there is no mean that it cannot be acted without corroboration.

State of U.P. v. Hum Sagar Yadav 1985: It was held that the dying declaration is true and voluntary in the eyes of court, then the case can move further without corroboration. So, it means that the satisfaction of the court is a necessary element while using dying declaration as evidence.

Rashed Begam v. the State of M.P.: It was held said that if dying statement is suspicious in the eyes pf court then it must be supported with other facts and circumstances of the case. The evidentiary value of the dying declaration depends on the circumstances of the case.

Khusal Rao v. the State of Bombay: This case is very important regarding the dying declaration as it provides us some principles dealing at the time of dying declaration.

• The true dying declaration does not require any corroboration as there is neither a rule of law nor the prudence that a dying declaration cannot act without corroboration.
• A dying declaration is not weak evidence as a whole but if the court is not satisfied with the genuineness and circumstances it can take the help of other supporting evidence.
• It is imperative to look into the facts and circumstances of the case in which a dying declaration is being made.
• It is most reliable when it is given in a written competent manner and its authenticity is explained with the help of the signature of the victim.
• Every court must check the circumstances under which the dying declaration is recorded like whether the room was properly lighted, the person given statement is in the right state of mind, the declaration is made without any delay, or inconsistent with the facts and circumstances of the case, or if there are any circumstances to tutor the victim to what to explain while declaring a statement. 

K Rama Chandra Reddy v. Public Prosecutor 1976: It was held that if the admission of dying declaration under section 32 is done without oath and cross-examination, then a court must satisfy that there was no tutor for that statement or the person wasn’t in the undue influence of any other person or it is not any product of the imagination of that person means he should be in a better state of mind. Muthukutty v. State: It was held that it is relevant when dying declaration is corroborative but it is not any well-established rule that should be followed.

DIFFERENCE IN DYING DECLARATION WHEN COMPARED TO ENGLISH LAW

In English law, this dying declaration is applied to Homicide and Men’s laughter but in India, it is also applicable in the cases of suicide. In English law, it is only applicable in criminal law when death was declarant is in question but in Indian law, it is admissible not only in criminal but also in civil cases even if there is not a question of declarant’s death. Apprehension or expectation of actual death plays an important role in English law but in the India Evidence Act, it is not necessary as mentioned above.

COMPARISON BETWEEN DYING DECLARATION AND DYING DEPOSITION

The Dying Declaration is recorded by any person, police officer, magistrate and also by a doctor but Dying Deposition is recorded by a magistrate in the presence of the accused or his lawyer. In Dying deposition, the witness can be cross-examined by the lawyer whereas cross-examination is not allowed in Dying declaration. The administration of oath is not so important in dying declaration but it is important in dying deposition. The Dying Declaration is applicable in India and provisions are given under the Indian Evidence Act whereas there is no provision for dying deposition. Moreover, dying deposition has superior value as a comparison to dying declaration.

CONCLUSION:

Dying Declaration has a significant part in the Law of Evidence. Even when a Dying declaration should not be brought through compulsion or pressure whereas it should be free from any bias-ness or undue influence. Also, in the case of Krishna Lal v. Jagun Nath the same judgement was held by court. In this particular case, the women was set to fire by her husband-in-law and her mother-in-law, in her dying declaration she wrote that she was not burnt by her in law and the court believed her statement as the statement was free from any sort of bias-ness. Due to the importance of the Dying declaration in imparting justice the court has laid different principles for governing it. It should be free from all kinds of modifications and errors. It should be genuine and should be satisfactory and if it isn’t so the court must check other evidence and facts relating to the statement before moving to the conviction of the accused.

REFERENCES:

[1]Legal Information Institute, Dying Declaration, https://www.law.cornell.edu/wex/dying_declaration Dated:20.03.2021

[2]I Pleader, Admissibility of Dying Declaration, https://blog.ipleaders.in/admissibility-dying-declaration/ Dated:20.03.2021

[3]Indian Kanoon, High court of Rajasthan, https://indiankanoon.org/doc/67143/ Dated: 21.03.2021