All about Law!

THE CONCEPT OF “DELEGATED LEGISLATION IN USA”

The term “delegated legislation” basically means a defined set of boundary that has been specially guarded by the constitution relying on which the legislature based on all its privileges transfers or delegates the powers to other administrative bodies assigning them for rule making . This concept of “delegated legislation” was meant with the purpose of expanding the government’s power and give a helping hand to the government in power to deal with the socio-economic situations in the nation.

In case of “United states of America”, the theoretical aspect of the state does not approves of the concept of “ delegated legislation in the state”. The USA constitution is based on two major concept of  “Separation of Power” and “Delegatus non potest delegare”.[1] There is truly no context or textual evidence through out the constitution of USA which indicates that it “delegates powers” from the “legislature” or the “executive”.

The USA historical background suggests that the federal government or congress itself derives powers from other sources then how it is suppose to “delegate its powers”. The propound political thinkers and philosophers who gave birth to the “American constitution” had reasonable views about the concept of “delegation of powers” .  The propound political philosopher John Locke was of the views that the legislature certainly cannot assign its powers legislative powers to any individual neither can it establish it somewhere. He was certainly of the opinion that the legislative body and the executive body should be ruled separately because when individuals are given the “power of law making”  or enforcing laws it goes in single hands and there is a probability that this can result in exploration and misuse of powers.[2] Further individuals can also use these set of powers to exempt the governing laws over them and can dictate these set of laws for the personal benefits. This concept of separation of legislative body from the executive body is basically knows as “Delegatus non potest delegare” which was given by Locke.

Later on Montesquieu crafted the idea of “Separation of power” . Montesquieu was of the opinion that any individual should not be handed of all the powers of the government to exercise which is the “legislative, executive and judiciary”. This concept of “Separation of power” ideated that legislature should specifically work on making laws and not enact or administer them . Correspondingly executive must not intervene with the works of “judiciary and legislative”. Likewise Judiciary too shall be free from both the governing bodies.

Each governing body should work separately based upon their functions and powers. The Congress specifically holds the power of mandating the legislation in “USA” where as president has the exclusive power of to carry out the functions of execution and lastly judiciary is carried out by the “Supreme court of USA” and necessarily to other courts as well depending on other factors.

As a result of this concept of “Separation of power” it was the congress only which exclusively functions for the rule of law making  and no other governing bodies have the rights of interfering in the process of law making. There are many a times it was argued that when the congress itself derives its powers from any other sources how can it supposedly further “delegate its powers”.

The “Supreme court of USA” clarified in the case of Field v. Clarke[3] that power bestowed in one department shall not be intervened by any other governing body. However it has certainly been noted that in several instances “non-legislative power such as rule-making power or quasi-legislative powers can be delegated by Legislature to the Executive”. It was then further noted in Wagman v. Southard[4] where in chief Justice Marshall pointed out that distinctions were not clearly crafted with respect to different subject matter , due to which significant were thus governed by the legislative and the subject matters of little less interests were passed on to the executive board in order to address the detailed framework of the legislature.

THE CONCEPT OF “DELEGATED LEGISLATION IN INDIA”

There are quiet many a instance where the status and constitutionality of “delegated legislation” has been figured in India . This concept of “delegated legislation” has been defined in two separate ways i.e “delegated legislation” before and after independence.

Before the independence era – It was evident from Queen v. Burah[5] that provisional legislation based on terms and condition was mandated by the “privy council”. The “privy council” did not approved of “delegated legislation” based upon its reasoning. The lieutenant officers were assigned with the exclusive powers of governing the administrative bodies of the “civil and criminal justice system”.  “The privy council” was of the opinion that subordinate bodies should be enumerated in the process of framing and drafting the laws and regulation as these were the people who were ultimately going to be  the  part of the  “law making” as well as held powers mandating to other bodies with the necessary legislative characteristics which again the legislature itself has derived the powers from the constitution itself.

 Further in King v. Benori Lal Sharma[6], the terms of law were again enforced by the “Privy Council”,  as showcased in Queen v. Burah. Particularly in “King v Benori lal” the fact that governor generals mandated the issues related to “emergency ordinances” were challenged under the case. The question was based on the grounds that the governor general upon acting those powers actually took the authority of the “provincial government”. Further the court decided such an act did not portrayed the ideal concept of “delegated legislation”. The “ Privy council” commented on the matter that such an act out casted a different from of legislation with certainly different “legislative powers” where by the “local administrative body” determines the local application of “province of state”.

After the independence when the British aristocracy was finally been kicked out of the country the constitution did not approved of the same set of rules as mandated by the “British province”. The Framers of the “constitution” continuously discussed on the matter  how should the “legislative powers” should be presented in the country as well as how much power shall be given to the legislation. “It cannot be said that an exhaustible right of delegation is inherited in the legislative power itself.”[7] No doubt the term “ delegated legislation” was not exclusively expressed anywhere under the “Indian constitution” however the analysis of  “Article 312” fairly indicates the concept of “delegated legislation” in the constitution. This particular article hold s ups the power of setting up new branches of “All India services” upon achieving a majority of two-third votes.

It therefore tends to mean that certain statutory powers would be transferred to the “All India Service Recruiter”. There are several situations wherein the “delegated legislation under the constitution of India” can be identified.

As seen in the case of D.S. Grewal v.The State of Punjab[8]  which challenged the “All India Service Act 1951” based on the constitutionality. The plaintiff of the case was working under the “All India services” and was sent to Punjab. Where the plaintiff was holding the post of a “Superintendent of Police” in most of the districts but he was reverted back to the post of an “Assistant Superintendent of Police” and was sent to Dharmashala. Then after his posting in Dharmashala in same month the plaintiff was informed that he has been charged in pursuant to the rule 5 of the “All India services”. Based upon the charges an enquiry committee was immediately set up against the plaintiff under Shri K. L. Bhudiraja. The plaintiff then filed a suit under the “Article 226” of the “Indian constitution” and question the constitutionality of the Act as well as raised questions upon the legal basis of the enquiry committee in the Punjab High court.

The “supreme court” while deciding on the factor of ‘delegated legislation” as prescribed under “Article 312” of the constitution stated that the power of the “central government” to post and suspend the officer without any reasonable justification is clearly misuse of the power. And as prescribed within the “Article 312” of the constitution nothing as such can take away the “powers of the legislation”.

While in the case of Panama Refining Co. v Rayan[9]in “USA” under the “Section 9(c)” of the “National Industrial Recovery Act 1933” gives  “president” the authority with some special powers relying on which the “president” may order any sort of thing and if such order are being violated that may lead to violations of the law and individuals or entities can be punished according as per the said provision.  Particularly in this case the “president” by the means of the executive board issued a restriction on the appellants business and assigned the protection of the internal board to vest all sort of power as prescribed under the mentioned Act. Following to the “president’s” order the internal board acted accordingly . This case particularly challenged the constitutionality of the “National Industrial Recovery Act 1933” as well as raised questions on the unconstitutional unsolicited “delegation of legislative power” carried by the congress.

Further the “United States” “Supreme court” while delivering the judgment addressed that the “delegation of legislative” power carried out by the “president” amounted invalid as well as void in this case.  The court clarified that it is the congress who holds such powers and who has the power to delegate it further to the “executive” based on only two circumstances.  Congress can transfer those powers to the “executive” on the first note when these principles or policies has been exclusively mentioned in the statute and on the second note when it is important to lay down the guidelines and approve the administrative body to frame rules under the subordinate limits of those powers.

BENEFIT OF A “DELEGATED LEGISLATION IN THE COUNTRY”

• Helps in reducing the burden of the “Parliament” –  “The Parliament” must enact a range of laws within a limited time of its existence. Such extensive study must be carried out in such a way that the rules of the law can hardly be enacted in depth. In such a case where “parliament” dedicates all of its time in laying down legislation for every minor specifics it will indeed require a lot of time and this will ultimately reduce the amount of work the “Parliament” actually needs to deal with. Thus it’s a huge time taking process as well as often considered to be costly to manage the procedures. There is also a need to resolve this burden and it can only be achieved by delegating one “legislative authority” to the “subsidiary or to the executive”.
• In the matters of particular expertise– As since we are evolving everyday with technology and are achieving milestone in the technical field and advancements. Where there is such a rapid growth in the technical field bringing changes in the lives of the common people it needs to be regulated by set of rules and for which parliamentarians need to be fully educated in the subject matter to address and understand the concerns. But as a universal fact its is indeed known that “we cannot be experts in every field” . Therefore it is indeed required that parliamentarians should discuss and develop upon the board lines issues and the subject matters which needs the understandings of experts needs to be delegated to the experts of the particular field. In this way the “law making” process will also function smoothly without much dig pits being in the way.
• Decentralized power of decision making– In the matters of local constituencies its is indeed considered that the local authorities have better understanding of the situations than the parliament as they are much familiar with the circumstances and the concerns of the local people . Hence they can be better in enacting laws for the local constituency , therefore in such cases “delegating” powers and the theory of separation of powers acts aptly.
• In the time of emergencies- At the time of emergencies , “delegated legislation” is best way to figure out for solutions in proper time where as “parliamentarian” process are much more time taking an d needs to have a proper number of majority in order to conclude any sort of thing. At certain times “parliament” does not have the adequate amount of time to frame a legislation as well as keeping up with the safety policy of nation. For example – “The Prevention of Terrorism Act” was drafted in order to deal with terrorism in the “United Kingdom” but now the same Act stands invalid and restricted in the state as a matter of safety procedure. Hence this concludes that the concerned “delegate authorities” must deal it in their way.
• In the concept of “delegated legislation”, “Parliament”  frames the laws in a wider abstract form and now the executive will now have to draw in the minute details. Consequently, these small information may be modified automatically even without amendment being made by the Parliament. It is also versatile and the laws made in this manner will better address the requirements of the modern society.

“JUDICIAL CONTROL OVER DELEGATED LEGISLATION”

The concept of “delegated legislation” in “India” can be questioned in the court every time when it is found to be unreasonable, excessive beyond its region of power or in the cases where it violates the “constitutional principles”. This can be done in two ways , firstly on the basis of “substantial ultra vires” and up next on the basis of “procedural ultra vires”. The standards through which the law enacted by that same “executive” can be found invalid by the court is it shouldn’t be treated as incompatible by the “constitution or ultra vires” the “parent act” through which it might have the authority to make the law. The ability to review the concept of “delegated legislation” is has been vested upon the “Supreme court” or the “High court” of the country.[10]

Every “delegated legislation” somewhere in the other or once in a while clashes with the guaranteed “fundamental rights” and every time when such a situation takes places , if the crafted Act violates the provision of “fundamental rights” the “delegated legislation” is then paralyzed and is not functional in the country. This concept has been same through out both in “USA” as well as in “India” as in both the countries the “judicial control over delegated legislation” is mandated by the way through of the “doctrine of ultra vires”.

However in “USA” there are basically two major approaches through which the “judiciary” justifies the “delegated legislation” that is-

• “Filling up the details approach”
• “Intelligible approach”

The first principle of approach states that , over here the congress frames certain polices and guidelines and being within the limits of it the “executive” further have the fill up the loopholes that has been left out by the congress.[11]

The second set of approach is basically the court reviewing the provided “delegate legislation”.

CONCLUSION AND SUGGESTIONS

“Delegated legislation” literally explains that legal principles developed in compliance with the provisions of the Act of “Parliament” by a competent individual. Despite the fact that “legislation” is within the competence of the “legislative body”, it can, by resolution, transfer its ability to separate bodies or persons. The motion that transfers these power is recognized as the “Enabling Act”. Through “Enabling Act” the congress shall lay down broad rules as well as the standards of adequate principles by the “delegated authority”. In India the where delegated legislation is controlled by the “Parliament” and in such a case it is important to strengthen the “advisory boards” functions in order to develop new laws in the country relying on adequate standards of theories and principles.

There is certainly differences in the administrative system of “USA” and “India” in terms of “delegated legislation of power”. There is no such expressed sources or agreements that dictates the “constitution” to approve of any authoritative power. When the founding fathers of the “constitution” mandated the constitution they framed it with the motive of the flexibility of the “constitution” and keeping in mind when from time to time certain principles needs to be changes as per the changing times. In case if we want the “delegated powers” in the hands of the governing bodies not to be misused it is vital to adopt powerful modes of control as applicable in the USA which India has not yet adopted.

No matter how much  fascinating is the concept of “delegated legislation” but along with the advantages there is certainly a different view too. The concept is overlapping in nature as it works to change the legislation it is more likely step up into the responsibility of the “legislature”. There are concerns as there is a probability of being misguided for the political gains at times. On the other note scholar have also pointed out that it is more likely to be against the concept of “separation of power” as given by “Montesquie”.

However in a country like “India” the “parliamentary” control of “delegated legislation seems to be right but certain features from the “American delegated  legislation” like fast decision making process will make the system more likeable .

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[1] Saad Abdulbaqi Sabti,  YP Rama Subbaiah, A comparative study of delegated legislation: With special reference to United States of America and United Kingdom, 3 INTERNATIONAL JOURNAL OF LAW, 70(2017) .

[2] John Locke, Second Treatise of Civil Government 314-322 (Oxford :B. Blackwell, 1948).

[3] Field v. Clarke 143 U.S. 649 (1892).

[4] Wagman v. Southard, 23 U.S. 10 Wheat. 1 1 (1825) .

[5] The Queen v Burah: PC 5 Jun 1978 .

[6] King v Benori Lal Sharma AIR 1943 SC 36 35 .

[7] The Union Of India (Uoi) … vs S. Narayana Iyer .

[8] D.S. Grewal v.The State of Punjab, 1959 AIR 512 .

[9] Panama Refining Co. v. Ryan, 293 U.S. 388

[10] Jain MP, Jain SN. Principles of Administrative law, (5 ed) 47(2007).

[11] Golligon DJ. Administrative Law, (Oxford University Press, New York, (4th Ed), 18(1996) .

                                           INTRODUCTION

The case was decided in the light of the Human Rights commission directives of protection of human rights in reference with criminal procedure code and constitution of India. The case attracted the certain principles from section 41 and section 46 of Criminal procedure code that referrers to powers conferred by the police officer in relation to arrest and detention as well as the manner of arrest.

According to the legal dictionary by Farlex “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.”[1]

The term “Arrest” implies apprehension of a person by legal authority so as to cause deprivation of his liberty.[2] The reason of an arrest is to bring the arrestee some time recently a court or something else to secure the organization of the law. An arrest moreover serves the work of informing the community that a person has been charged of a wrong doing and may advice and discourage the arrested person from committing other wrong doings. In this case Bombay High court in order to maintain the dignity and nobility of a woman , There are constitutional provisions supporting the same, though we have Article 14 in the Indian Constitution stating that both men and women should be treated equally, we also have Article 15(3) which gives the state powers to make some special provisions for women so as to remove the gap between both the genders and to ensure their vulnerability in view with this point followed  a rule where by females cannot be arrested in the absence of a lady constable neither can any female be arrested after the sun set . But this case absolutely stood as an exception to the certain section sections of the CrPc where by the Supreme Court crushed the previous judgment given by the lower court and opined at certain exceptional cases where the nature of the crime is serious and there’s adequate reasons for arresting a female , even in the absence of a lady constable they can be arrested. There are a lot of South Asian countries which have provisions regarding the procedure for arrests and custody. They talk about the medical examination of the arrested or detained persons. They have some special laws for the safety of women.

In India, after this judgement has been passed in 2005 the CrPC has been amended which gave a middle view of the Bombay High Court and Supreme Court. But still there are a lot of violation of these regulations and a lot of injustice is being done. There are a lot of arrested persons who are in the custody of the police and are being mistreated and are being killed under the disguise of encounters. In a nutshell I conclude there should be proper guidelines  made for punishments as well as a clear custodial procedure should take place before every trail.

RESEARCH OBJECTIVES

1. To understand what is arrest, detention and custodial deaths
2. To understand the history and the background of the case of State of Maharashtra v. Christian Community Welfare Council of India.
3. To analyse the judgement given by the Hon’ble Supreme Court of India.
4. To explore case laws in relation to the same.
5. To understand the statutory provisions given in India regarding arrests of females and custodial deaths.

RESEARCH QUESTIONS:

1. What are the legal provisions relating to the procedure of arrests of females and custodial death in other countries?
2. What was the condition in India before the passing of the judgement passed in the case of State of Maharashtra v. Christian Community Welfare Council of India?
3. What is the main Object behind the particular statutory provision?
4. What are the consequences of the judgement given by the Supreme Court in 2003?

         LEGAL PROVISIONS REGARDING ARREST OF WOMEN

‘Arrest’ means deprivation of liberty of a person by legal authority.[1] The term arrest has not been exceptionally defined under any particular section of criminal procedure code . Arrest is considered to one of the important ingredients of the criminal justice system as well as considered to be the essence of the criminal law.  It is severed on purpose to prevent the offenders from committing crimes and represent them in the court of laws.

But however the arrest needs to be justified with a reasonable cause otherwise any arrest by any lawful person without any reasonable cause and apprehension does not amounts to a lawful arrest. This was held in the case of Joginder Kumar v. the State of UP[2].

Generally the Criminal procedure code gives the provision which states who can arrest any person and according to the provision on reasonable grounds a police officer in power, a magistrate in power and any private person has the power to arrest any person who appears to have committed a crime but this provision is not applicable in case of the arrests of women. Criminal law is generally known to be gender biased. That is true to a certain extent. It seems that in the course of its development the criminal law system has held’ fair-man’ as its basic unit in view. This much is also evident from the current practice. Still now, the’ reasonable man’ sneaks into the judge’s mind when reviewing the facts or judging the actions.

 But According to Article14 of the Indian Constitution, men and women are equal, but at the same time Article15(3) empowers the state to make arrangements for women because of their vulnerability. Because of biological facts women are more prone to violence. Most enactments and courts bridge the gap, if any created by law, were enacted to remove such limitations and to countenance her modesty legislature.

So in the case of arrest of women Under the Criminal Procedure Code  a woman can be arrested by male constables, though in due regard to decency she may be searched by a female officer only.[3]

The CRPC’s concern to protect women’s interests is expressed in the proviso of Section 47 which requires that if an apartment to be searched by the police is in the occupancy of a woman who does not appear in public according to tradition, then the police should provide her with a notice to leave the place during the quest.

Recognizing the importance of arrest of a woman, it has been suggested that a male officer should avoid touching the woman’s body while effecting arrest. It has also been suggested that a woman shall not be arrested after sunset and before sunrise.[4] If she is to be arrested, the police officer has to seek prior permission of his seniors. If this is not possible then the arrest can be made but the fact has to be reported to the senior officers with reasons for not taking prior permission. The magistrate is also to be informed of this fact.[5]

The law commission report has suggested number of provisions satisfying the condition of protection of women even in the case of arrest of and one of such proviso which is incorporated in the section 46 of CrPc is “Provided that where a woman is to be arrested then, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation’, of arrest shall be presumed and unless the circumstances otherwise require or unless the police officer arresting is a female, the police officer shall not actually touch the person of the woman for making her arrest.”[6]

Section 46(4) of the Code of Criminal Procedure in Chapter V specified that the arrest was totally illegal in terms that it was clearly stated in Section 46 for “Arrest how it was made.” The said clause is a salutary one that provides protection against a woman’s arrest after sunset and before sunrise, and the protections have to be strictly adhered to according to the learned counsel. Therefore, on documenting the petitioner’s grievances and considering the facts and circumstances of the case, the Honorable High Court briefed on the point that the precious protection of ‘ Life and Liberty ‘ enshrined in Article 21 of the Indian Constitution can not be denied to a prisoner or accused at trial and it is the duty of the State to ensure that the right is not infringed.

However, the Court concluded by noting that any deviation in the manner of arrest from the prescribed procedure could therefore not be countenanced and could be declared illegal. Allowing the written appeal, it was held that the officials responsible for the violation of Section 46(4) of the Code of Criminal Procedure will be liable for the arrest of the accused after sunset.[7]

LEGAL PROVISIONS REGARDING CUSTODIAL DEATH

The term custody in general signifies guardianship or protective care under the guardianship of a person and to the condition where it is applied in the case of arrest and detention, violence and torture is not justified in custody.

According to the legal terminological mean the term custody implies imprisonment of a person or in a lay mans language it a manual possession of a person under the legal justified provisions.

A petitioner must be “in custody” to be entitled to Habeas Corpus relief which provides for release from the unlawful confinement in violation of constitutional rights.[8]

All around the world no civilized law in any civilized society never prescribes custodial torture , custodial cruelty or custodial torture is considered to be an inhuman trait which is morally as well as legally against the human rights of a person. A civilized society represents the norms of rule of law according to which a society is governed but in a society where custodial torture is justified it not only violates the human rights but it is against the rule of law too. Prisoners have human rights, and slavery in jail is a declaration of failure to do justice to living human beings. All fundamental rights are an enforceable truth for an inmate, although limited by the fact of imprisonment. Simply stated, a person in custody, whether from the police or the judiciary, is going to die in custody. No doubt the police have a crucial role to play in protecting our lives but

It is also the duty of the police as a part of the legal fraternity to uphold the provisions of law and respect the provisions of human rights .

According to a statistical data by Amnesty International of 1992 reports suggests that the number of deaths that occurred between 1985 to 1991 due to custodial torture was something around 415.

As per article 21 of the Indian constitution , Right to life and liberty is a fundamental right that encompasses everybody and gives the rights of basic conditions of life to everybody even to the prisoners. Any person subjected to torture or to cruel, inhuman or degrading treatment or punishment can move the higher Courts for various judicial remedies under Article 32 and 226 of the Constitution.[9]

The Supreme Court initiated the development of “Custodial Jurisprudence” in D.K Basu v State of West Bengal.[10] In this particular case a writ petition was under article 32 of the Indian constitution by a NGO , A notice was brought into the attention of the chief justice of India through a newspaper that was published in a well known newspaper editor which mentioned about the custodial deaths that happened in west Bengal in a substantial year. In this case the Court outlined the following requirements that should be taken as preventive measures in all cases of arrest or detention:

1. Police personnel performing the arrest and handling the arrester’s interrogation should   bear correct, visible and clear identification , name tags with their designation so that police staff conducting  the investigation. The identification of all such police personnel who performs the arrester’s questioning must be documented in a register.
2. The police officer performing the arrest of the arrested person shall prepare a memo of arrest at the time of the arrest and such memo shall be approved by at least one witness, who may be either a member of the arrested person’s family or a respectable person of the place from   which the arrest is made. This shall also be countered signed by the arrester and shall include date and time of detention .
3. Any person who has been detained and is kept in the police custody for interrogation has the right to have a friend, relative or any person very c lose to him/her who has interest in the welfare of the detained person .
4. The date, place of arrest and place of custody of an arrested person shall be informed by the police if the next friend or relative of the arrested person resides outside the district or city by telegraph through the District Legal Aid Organization and the police station of the region concerned within 8 to 12 hours of the arrest.
5. As soon as the person is arrested and kept in the custody for interrogation , the arrested person must be given the reasons of his arrest and must be told under what grounds the person has been arrested .
6. The entries regarding the arrested person shall be made in a small diary just after his arrest which shall record the details of the arrestee , the next friend who is along with the arrested person as well as the details of the officer who is appointed as the custody for the detained person.
7. The arrester should also be checked at the time of his arrest, if he so asks, and major and minor injuries must be reported at that time if any injury is found on his / her body. The “Inspection Memo” must be signed by both the arrester and the police officer making the arrest and supplying the arrester with a copy thereof.
8. During his detention in custody, the arrestee should be subject to medical examination by a trained doctor every 48 hours by a doctor on the panel of approved doctors appointed by the Minister, Health Services of the State or Union Territory concerned. Health Services Manager, should also plan such a panel for  Tehsils and Districts.
9. Copies of all records, including the arrest report referred to above, should be sent for reporting to the Magistrate.
10. During this detention period the arrestee has the rights to meet and talk to his lawyer at the time of interrogation.
11. A police control room should be given to all district and state offices where the arresting officer shall communicate information about the arrest and position off custody of the arrested person. It should be shown on a conspicuous board within 12 hours of the arrest and at the police control room.

In the further observation by the court it was concluded that these requirements are necessary and these points flow through the guidelines given under Article 21 and 22(1) of the Indian constitution which strictly needs to be followed while arresting any person.

In another case of Nilabati Behra v State of Orissa[11] The court while deciding this case opined that the prisoners or the detained person are denude of their fundamental rights its just they are restricted under this provision . And under this article , a person who is detained is subjected to adhere to this provision . In this case Court granted the mother an amount of Rs. 1.5 lakhs as her son had died in police custody. The judgment of the Court also referred to Article 9(5) of the International Civil and Political Rights Treaty, which states that an enforceable right of reimbursement is not foreign to the principle of protection of a guaranteed right. Anyone who has been the victim of unlawful detention or arrest shall have the enforceable right to compensation.

salus populi est suprema lex and salus republicae est suprema lex , the latin maxims basically means State security is the supreme law is not only an essential but is the center of the doctrine that an individual’s well being must yield to that of the nation.

In the case of  Sunil Batra Vs. Delhi Administration[12]the question before the court of law was to determine the validity of solidarity confinement , Justice Desai opined that there is no such specific provision in the Indian constitution in comparison to the eight amendment to the American constitution that prohibits cruel and unusual punishment . Nevertheless, he pointed out that conviction did not weaken the convict as a non-person, subject to severe penalties levied by the prison authorities without proper procedural guarantees.  He too stressed upon the duty of the courts towards the detained persons . He held “We cannot be oblivious to the fact that the treatment of a human being which offends human dignity imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14”.[13]  In another case of Raghubir singh v state of Haryana[14]the court opined that the diabolic recurrence of police brutality leads to horrifying remarks in the minds of the ordinary citizens that their lives and freedoms are under new threat and unjustified cause torture violates human rights and rule of law. Further the supreme court quoted Abrahim Linconl in its judgment “ if you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all people some of the time and some of the people all the time but you cannot fool all the people all the time”.[15] Prisoners’ rights have been recognised not only to protect them from physical discomfort or torture in the prison but also to save them from mental torture.[16]

                                       Critical analysis of the case

The fact of the prominent case stated that some police men of the crime branch department of Nagpur police station while being in their duty took into custody to a person named Junious Adam Illamatti , it was later on found that Adam died in the custodial interrogation . The facts of the case stated that further when his wife reached the police station to enquire about his husband she was allegedly molested by the cops in the police station and later on a charge sheet was filed against all the officers under section 302 of Indian Penal Code.

Here the question before the court of law was whether the their was an abuse of power on behalf of the officers , whether the fundamental principle of rights of an arrested person was violated and whether the arrest of the female was justified or not.

The court in this case stated about the abuse of power of the officers and held them guilty as well as opined about the rights of the arrested person , mentioning the guidelines as given in the case of D.K Basu v state of West Bengal[17]. Further the court answered with regards to the question raised on the arrest of the women where in the court stated The arresting authority must be told  that, while the female person is being arrested, every effort should be made to have a lady constable present However, in situations where the arresting officers are reasonably satisfied that such presence of a lady’s constable is not necessary or practicable and/or that the delay in arresting a lady’s constable will preclude such arresting officer from carrying out the investigation for reasons to be reported either before the arrest or immediately after the arrest.

Conclusion

The case state of maharastra v Christian community welfare society is one of the landmarks judgments which brought about a new change in the judicial procedures regarding Rights of an arrested person , it answered fundamental questions relating to arrest of women and established a whole new concept and procedures that needs to be followed while the arrest and detention of a female person. It not only declared custodial tortures unconstitutional and violent but also restored the faith of the ordinary citizens in the justice system by punishing the officers.

---

[1] Chapter V. CrPc  1973

[2] Joginder Kumar v. the State of UP (1994) SCC 4 260

[3] Section 51, CrPC 1975 and the observations in Kamalabhai v. State of Maharasthra AIR 1962 Sc 1189.

[4] The proposed provision runs as follows: Except in unavoidable circumstances, no woman shall be arrested after sunset and before sunrise, and where such unavoidable circumstances exist, the police officer shall by making a written report, obtain the prior permission of his immediate superior officer not below the rank of an Inspector for effecting such arrest, or if the case is one of extreme urgency and such prior permission cannot be obtained before making such arrest, he shall after making the arrest, forthwith report the matter in writing to his immediate superior officer with the reasons for arrest and the reasons for not taking prior permission as aforesaid and shall also make a report o the magistrate within whose local jurisdiction the arrest had been made, ” Lae Commission of India, 135 the Report on Women in Custody, Controller of Publications, Delhi, 1989, p.33.

[5] Law Commission of India, 84th Report Rape and Allied Offences: Some Questions of Substantive Law Procedure and Evidence, Controller of Publications, New Delhi, 1980, p.14. The Law Commission in its report, Supra n.3 at p.33 has reiterated this suggestions.

[6] Section 46 of Crpc.

[7] Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095.

[8] https://legal-dictionary.thefreedictionary.com/custody by Farlex legal dictionary.

[9] Sukhla V. N., Constitution of India. Eastern Book Compnay, 10′” edition. (200 I). reprinted (2007) , Lucknow, p-277 and 542.

[10] D.K Basu v State of West Bengal AIR 1997 SC 3017

[11] Nilabati Behra v State of Orissa, (1993) 2 sec 746.

[12] Sunil Batra v Delhi Administration, AIR 1980 SC 1579.

[13] Ibid.

[14] Raghubir Singh v state of Haryana, AIR1980 SC 1088.

[15] Ibid

[16] Kishore Singh v State of Rajasthan, AIR 1981 Sc 625.

[17] Supra note 12 .

---

[1] https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320

[2]   http://hanumant.com/CrPC-Unit2-Arrest.html

surrogacy laws and operation

There has been lots of debates and discussion going on with regards to the issues of the legitimacy of surrogacy in various countries. It is rather a tumultuous point of law as there are only a handful of nations recognizing it and there is also a lack of uniformity in the principles being followed in these nations with respect to the phenomenon of surrogate birth.[1] The united Kingdom was the first country to enact the legislation, It passed the Surrogacy Arrangements Act in 1985 whose main aim was to abolish commercial surrogacy[2].  The relevant sections and provisions of Human Fertilization and Embryology Act, 2000 states that any commissioning parents is legally considered to be the legal parents provided if the commissioning parents are genetically related to each other[3]. The very first instance of surrogacy was captured in 1986 in the case of Baby M , In re [4] where the supreme court of New Jersey defined the custody of the child and answered the question raised upon the motherhood stating that the surrogate mother who conceived the child via artificial insemination has visitation right only and the natural father was awarded custody of Baby M but the rights of adopted mother was denied.[5] Further this decision of the court acted as a guideline for other cases and prohibited the process of surrogacy in the state unless and until any lady voluntarily willingly accepts for the process of surrogacy without any payment.  As per the laws of Florida it has been explicitly mentioned that both gestation and traditional form of surrogacy agreements are allowed under its ambit and it is no more restricted to the  married heterosexual couples only.[6]  Virginia and Washington allow uncompensated surrogacy arrangements but deems illegal and unenforceable any agreement involving any payment to the surrogate mother other than medical and legal expenses.[7] California is generally accepting of surrogacy agreements, particularly when the couple seeking surrogacy has contributed some of the genetic material. Therefore, California’s policy on surrogacy is based on genetics.[8]

 The Australian Capital Territory has the most liberal surrogacy laws among all Australian States.[9]  The Canadian law prohibits for the commercial surrogacy as per given by the 2004 Assisted Human Reproduction Act though it permits for the Altruistic surrogacy .  In the province of Quebec, any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.[10] In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements.[11]

                                    Commercial surrogacy in India

“Childless Asian and British couples are rushing to Anand in Gujarat as the city famous for its thriving dairy industry is fast becoming a hub for outsourcing surrogacy.”[12] – — Indian Express Report, 10-12-2007.

“The commissioning parents pay anything between Rs 40-45 lakhs for a surrogate baby, but these women get barely Rs 2-3 lakhs.”[13]      – Ranjana Kumari, Director of CSR

“If this was really as bad as they (the Government) have made it out to be, then you wouldn’t find so many of us here. Some of us are here for the second time. The option of carrying a child inside me to give joy to another woman and improve my own financial situation has empowered me.”[14] — Manisha, aged 36, a surrogate expecting twins

All of these statements highlights the situation how India evolved as a hub of commercial surrogacy , the second statement somehow tries to prove that due to the weak links in the regulatory framework and loopholes is  the reason behind the exploitation of the surrogates in India, the surrogates are only paid somewhat around 5-10% of amount from the commissioning parents and the third statements shows  A perceived reaction to that abuse as disproportionate. The death of Pramila Vaghela, a surrogate mother who died in an Ahmedabad hospital recently after delivering a surrogate baby generated little public attention.[15] Whereas just a few months ago, news reports celebrated the “blessing” and “miracle of science” that made the birth of Aamir Khan’s baby possible.[16] India is fast becoming the surrogacy capital of the world; commercial surrogacy already having become a multi-million US dollar industry and estimated to generate USD 2.3 billion per year by 2012.[17]  India was given the tag of the market for commercial surrogacy or fertility market for the tourist who wanted to hire any surrogate which estimated somewhere to be around Rs 25000 in todays date. In the case of Baby Manji Yamada[18] the supreme court opined that “commercial surrogacy” reaching “industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms like wombs for rent, outsourced pregnancies or baby farms”[19]. Surrogacy in India is neither illegitimate not prohibitory as no laws in India absolutely discards it nor permits it. However the modern laws ushers upon the new concept of “rent a womb law” or commercial surrogacy law as legalized in India in 2002.  Couples from all over the world flock this place in the hope of realizing their dreams of parenthood through an easily affordable surrogate mother.[20] Proliferation of commercial surrogacy arrangements is fuelled by lack of legal framework on the subject, abundant supply of cheap surrogate services[21]. In India, a typical surrogacy process costs about USD 25-30,000 which is around one third of that in developed countries.[22] In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to check the use of Assisted Reproductive Technology (ART)[23].  But these guidelines are silent on many major issues and therefore, “exploitation, extortion and ethical abuses in surrogacy trafficking are rampant, go undeterred and surrogate mothers are misused with impunity”.[24] In the case of Jan Balaz v. Anand Municipality[25] the question before the court of law was whether a child born in India from a surrogate mote  would be recognized as an Indian national where in the gesatational mother is an Indian and the biological father is a foreign nationalist in such a case will the child get the citizenship of India. The court in this case due to the absence of legislative principles governing the cases of surrogacy concluded that neither the genetic mother nor the wife of the biological father would be considered as a natural mother. This decision threw a new angle to the Indian legislation making the terms of surrogacy more difficult to understand , court had completely ignored the terms of a contractual relationship between the commissioning parents and the surrogate mother , stressing on the fact that the child was delivered by the surrogate and still would have the rights as same as a biological child with regards to inheritance and successions. Further the decision was appealed before the Apex court and it was ordered to frame the issues reffering to the matter of concern that is legality of commercial surrogacy which needs to through the test of Article 21 of the Indian constitution upon the grounds of violation . (a) the dignity of Indian womanhood, (b) commoditisation of human life due to importation of human embryo, secondly, the Constitution under Article 23 for trafficking in human beings and whether renting of womb was involved; thirdly the Indian Contract Act under Section 23 prohibiting immoral and anti-public policy acts, and fourthly violation of human rights of the child as the same would face psychological and emotional problems. Besides the Court posed issues regarding determination of the motherhood amongst genetic, gestational and commissioning parents[26]. However, it is important to juxtapose the same with right to privacy under Article 21 of the Constitution which was held by the Apex Court in R. Rajagopal v. State of T.N.[27] the court opined that it is necessary to repect the privacy of the surrogates relating to their marriage, motherhood, procreation , child rearing etc.  However, whether reproductive choices of a person are part of right to life and personal liberty is still a matter that has not been adjudicated by the Apex Court. Furthermore, women in India have been earning healthy livelihood by gestating (many consider the same to be form of physical labour), which further complicates the analysis under the article, since right to livelihood is also considered to be a part of Article 21.[28]

Commercial surrogacy is not only an issue of money and merits , it also does deals with ethics and morality. Yet , it’s become a fundamental reality in the society. The ethical and moral problems aren’t going to be resolved quickly, so it’s important to consider how the legal framework should handle things like “share a womb.” Unfortunately the regulatory bill introduced by the policy makers suffers from lots of irregularities and loopholes and these irregularities were apparently seen in the drafted bill of Assisted Reproductive Technologies (Regulation) Bill, 2010 which opens up the gate for number of criticism . This has made the current form of the Bill insufficient to adequately protect the interests of surrogate mothers; however, a mechanism can be developed to minimize exploitative practices.

                     Transnational commercial surrogacy and Ethical Issues

Supporters of surrogacy arrangements, such as Richard Posner, premise their argument on the fact that it is an exercise in procreative choice, economic autonomy and a woman’s freedom to contract.[29] This method of outsourcing pregnancy through a rented womb was a sensational as well as a controversial topic that pulled questions upon its legality as well as ethnicity. This trade’s business volume is estimated to be around $500 million and the numbers of cases of surrogacy are believed to be increasing at galloping rate in India.[30]

Further under the ART bill of 2020 the surrogacy agreements were legally considered to be surrogacy contracts , which was deemed to be  recognized under the ambit of the Indian contracts Acts, 1872 but on the other side it was also argued that such a contract is prohibited under the ambit of Indian contracts Act 1872 as the very nature of the contract was against public policy which includes public morality and conscience.  However section 23 of the Indian contracts Act explicitly states that :-

What consideration and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless— —The consideration or object of an agreement is lawful, unless—” it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.[31]  In all of these cases the object and the consideration of the agreement is deemed to be unlawful and hence every agreement wherein the purpose / object or the considered is unlawful automatically the agreement to becomes void.

In the honor of the section 23 of the Indian Contracts Act 1872 it has been argued by the people that the very purpose of commercial surrogacy is immoral as due to the reason of renting of the womb which raise questions upon “motherhood” as well as the involvement of  giving up the material rights and the selling of babies for money and henceforth surrogacy must be banned.

But this area of matter remains a grey arena of matter and due to this reason every society , every country all around the world have a different thinking about it differ approach towards this concept and therefore have responded in a different way all around the world. Almost all the developing countries around the world have given a thumps up to the idea of commercial surrogacy , such as countries like Argentina, South Africa have legalized commercial surrogacy in their countries but the matter of surrogacy differs from case by case, it is reviewed based upon the ethnic committee . Severing a woman’s tie with a child by contract as in case of surrogate agreements dismisses bonds between the surrogate and child that can be created by pregnancy.[32]

When Child bearing or the act of pregnancy is modified and served through the process of commercial surrogacy motherhood necessarily tends to commoditization. More over there are number of cases where there has been instances that the mother does not desires to do so but due the reason of money she forces herself to do so. This however concludes that treating human life like any other commodity and surrogacy contracts as contracts for the sale of goods, which is not desirable and morally as well as ethically also not acceptable.[33]

At the same time it has been universally acknowledged that It is also universally accepted at the same time that morality varies from time to time, and from place to place. It’s not moral, but it represents society’s will and can therefore only be modified by society’s will. There is no point in arguing for or against the moral codes of established cultures. Society is quite arbitrary in deciding its moral codes. Change should be attempted only through delicate moves and by consent.[34]  Our very own law and morality obviously  prohibits unnatural activities but morality must concern with people living together and promoting peace and harmony in their communities, societies and countries.  Unlike most types of actions, however, a reason is required to breach these prohibitions so as not to behave immorally. Only when the cumulative direct and indirect results would be greater is it acceptable to breach moral rules. Public morality must therefore accept surrogacy because it offers endless barren mothers the opportunity to enjoy motherhood.

That’s where Lord Partrick Devlin rightfully mentioned in his article “Morals and the Criminal Law”  that  “No act of immorality should be made a criminal offence unless it is accompanied by some other feature such as indecency, corruption or exploitation … It is not the duty of law to concern itself with immorality as such … it should confine itself to those activities which offend against public order and decency or expose the ordinary citizen to what is offensive and injurious”[35]. With regards to this contention the move towards legalizing commercial surrogacy must be welcomed as the decision with respect to commercial surrogacy leads to no negativity and detrimental in a way but rather works for the upliftment for the society and anything that helps in the upliftment in the society and brings about a change in the society must not be covered under the shield of morality and the policies of ethnicity. However strong the moral indignation is not a valid basis for violating the fundamental rights of dignity and privacy of individuals. Constitutional morality in our culture will outweigh the public morality claim, even if it is the majority view.  Though ethically and morally it is considered that commercial surrogacy must be banned but if we go through the pure facts and statistical analysis  it will show that in a world plagued by abject poverty, how will the government body ensure that people don’t consent to surrogacy just to eat two square meals a day? On the other hand when it comes to the question of legal recognition it is a controversial question that riggers women’s right to make decision about their bodies as well as procreation as guaranteed under Article 21 of the Indian constitution So, it is better to give legality to this concept of surrogate contract because “prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational[36]. So, in the end, such legalization would create opportunities for poor women to earn a better living.

         Conclusion and Suggestive Model for Commercial Surrogacy

The Government’s proposed model would cause further damage to the aspirations of countless couples apart from surrogate livelihoods. It would be very difficult for couples to find relatives, especially with breaking down traditional family ties and the rise of nuclear families, to find someone willing to make such an undertaking. Therefore, a model (adopting some of practices followed in Israel and some from the Ukrainian law) suggested by scholar Victoria Guzman for US to adopt, seems to be suitable for India as well[37]. At this point of time it is very important to form a proper legitimate committee that would help in screening  , reviewing and approving the terms and condition of  a  surrogate contract between the commission parents and the surrogate. he committee could oversee adequate legal representation from both sides, and ascertain that all potential issues that may crop up during the entire procedure.[38] This model would help in stopping the unwanted exploitations of the surrogates and fundamentally would bring about a change in the society pertaining to psychological and sociological change in the minds of the people that stresses upon the factor that such form of labor does not amounts to engaging in some body selling activity.

However following points should be taken into consideration while legislating a bill for surrogacy –

• The surrogacy agreement should mention the clause pertaining to the financial support provided to the surrogate mother.
• All of the surrogacy cases leading to the termination of pregnancy must be governed by the Medical Termination of Pregnancy Act, 1971.
• The terms as such legal guardian as well as the rights and duties of the legal guardians must be properly defined in the bill.
• To govern all such matters a special court or a bench of legal authorities must be appointed to deal with such matters.

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[1] Reetu and Basabdutta, “Surrogate Birth”, AIR 2009 Jour 108.

[2] Peter de Cruz, Nutshells: Medical Law (2nd Edn., Sweet and Maxwell Publications, London 2005) 168.

[3] Julie McCandless* and Sally Sheldon , 2010. ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form’. Modern Law Review 73(2) 175-207

[4] 537 A 2d 1227 : 109 NJ 396 (New Jersey, 2-3-1988)

[5]  <http://www.answers.com/surrogate-mother> last accessed 10/03/2020

[6] https://surrogate.com/surrogacy-by-state/florida-surrogacy/florida-surrogacy-laws/ last accessed 10/03/2020

[7] Uniform Parentage Act, 2000, Section 803.

[8] Hari Dev Kohli, Law and Illegitimate Child (Anmol Publishers, New Delhi 2003) 55.

[9] Artificial Conception Amendment Act, 2000, Gazette on 28-9-2000.

[10] Civil Code of Québec, 1991, C. 64, Article 541.

[11] <http://www.japantoday.com/jp/news/430424> last accessed 10/03/2020

[12] “Anand in Gujarat Surrogacy Hub for Childless Brits” Express India, 10-12-2007 http://expressindia.indianexpress.com/karnatakapoll08/story_page.php?id=248727 last accessed 10/03/2020.

[13] “As India emerges as a hub for surrogacy, surrogate mothers are underpaid and uncared for” DNA, 17-7-2013 http://www.dnaindia.com/india/report-as-india-emerges-as-a-hub-for-surrogacy-surrogate-mothers-are-underpaid-and-uncared-for-1862252 last accessed 10/03/2020.

[14] “Aditi Raja, Surrogacy (Regulation) Bill, 2016: Money, jobs frame another side of debate” Indian Express http://indianexpress.com/article/india/india-news-india/surrogacy-regulation-bill-2016-money-jobs-frame-another-side-of-debate/ last accessed 10/03/2020

[15] R. Smitha, Pramila’s Family claims yet to get contract money, DNA India, 26-5-2012, http://newindianexpress.com/editorials/Article542128.ece.

[16] Shara Ashraf & Navdeep Kaur Marwah, Hindustan Times. 6-12-2011, http://www.hindustantimes.com/Entertainment/Bollywood/Aamir-Khan-flooded-with-queries-on-IVF-surrogacy/Article1-778618.aspx.

[17] Jason Burke, India’s surrogate mothers face new rules to restrict “pot of gold”. The Guardian, 30-7-2010, available at http://www.guardian.co.uk/world/2010./jul30/india-surrogate-mothers-law.

[18] Baby Manji Yamada v. Union of India, (2008) 13 SCC 518, 523, para 13.

[19] Ibid.

[20] Sreeja Jaiswal, Commercial Surrogacy in India: Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights, 16 Gender. Tech. & Dev. 1, 2 (2012).

[21] Sreeja Jaiswal, Commercial Surrogacy in India: Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights, 16 Gender. Tech. & Dev. at 2.

[22] Law Commission of India, Report No. 228. Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to A Surrogacy (2009).

[23] National Guidelines for Accrediation, Supervision and Regulation of ART Clinics in India.

[24] Kshitij Bansal, “The Legality of Surrogacy, Legal News and Views” Vol. 25, No. 3, March 2011.

[25] Jan Balaz v. Anand Municipality 2009 SCC OnLine Guj 10446 : AIR 2010 Guj 21

[26] Union of India v. Jan Balaz, Civil Appeal No. 8714 of 2010, order dated 14-10-2015 (SC)

[27] R. Rajagopal v. State of T.N. (1994) 6 SCC 632

[28] Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.

[29] Richard Posner, Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. Contemp. Health L. & Poly, 21, 24 (1989).

[30] <http://www.merinews.com/catFull.jsp?articleID=136421> last accessed 10/03/2020

[31] Section 23 of the Indian contracts Act

[32] Babu Sarkar, Commercial Surrogacy: Is it Morally and Ethically Acceptable in India? (2011) PL December S-11

[33] Ibid.

[34] The Sunday Statesman, Kolkata, 5-7-2009, 6

[35]  R.M. Dworkin (Ed.), The Philosophy of Law (Oxford University Press) 68

[36] The Hindu, Kolkata, Monday, 10-8-2009, 13

[37]  Victoria R. Guzman, “A comparison of surrogacy laws of the US to other countries: Should there be a uniform Federal Law permitting commercial surrogacy” 38 Hous J Int’l L 619 at p. 645-49 (2016).

[38] Ibid.

Introduction

The Indian criminal Justice system complicates things when it comes to the matter with regards to offences dealing with marriages, so as in the case of marital rape. The Penal laws and the criminal justice system contradict themselves, defining rape as a heinous crime as well as a criminal offence but refuse to recognise the existence of marital rape.   The legislators and the lawmakers term marriages sacred followed by the Vedas which considers marriage as one of the “sanskaaras” , marriages might be sacred and sacrosanct but the question lies on the fact whether violence is  justified within a marriage.

Moreover the denial of the fact that a woman loses her rights over her body after her marriage is a black mark on Article 21 of the Indian constitution which deals with the fundamental rights. In accordance with the Indian constitution and the preamble it not only raises questions upon equality, dignity, integrity of her body but sexual autonomy too ,which needs to be addressed by the so called  bureaucrats who frame and safe guard the laws.

Objective

The comprehensive study of the research paper is to find out why India still finds it difficult to criminalize marital rapes.

To identify marital rape as a criminal offence.

Research Questions

What constitutes marital rape and what would constitute non marital rape?

Whether it is possible to declare marital rape as a criminal offence under the frameworks of the Indian laws?

                                                  LIST OF CASES

Maneka Gandhi v Union of India AIR 1978 SC 597

            Maharastra v  Madharkar Narayan AIR 1991 SC 207

            Justice Puttuswamy v Union of India 2017 10 SCC 1

                                   Analysis of the rape laws in India

The Indian Penal Code takes into consideration actus Reus, and mense rea while recognizing any  cognizable crime , actus non facit reum , nisi mens sit reum which means a person cannot be punished for any crime committed by him/her if there is an absence of a guilty mind. The Indian penal code pertaining to the definition of rape considers the presence of both actus Reus and mens rea while advocating Rape as a cognizable offence.

Rape-A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

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

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

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

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) in the Exception, for the word “fifteen” substitute the word “thirteen[1]

According to IPC section 375 of the mentioned code describes that  “ a person is alleged to commit the crime of rape who had a sexual intercourse with a women without her consent , or when the consent has been taken by putting her into such a situation by the fear of death or grievous hurt , or by taking her consent by the reason of unsoundness of mind or either by intoxicating her , in a case where she is unable to understand the nature and consequences of the act so happened ,or either sexual intercourse with  a girl who is below the age of sixteen years of age where her consent won’t be recognized as a valid consent . The only exception to this section is sexual intercourse by a man with his legal wife in case if the girl is not less than fifteen years old won’t amount to rape. The criminal justice system of India in short is more gender specific when it comes to define rape as a criminal offence , it too contradicts when it comes to the question of marital rape. It denies the existence of marital rape but it considers rape when a person haves a  sexual intercourse with his legally wedded wife who is less than sixteen years old, certain fact  raises questions whether rape as a crimes is based on the age of the victim .

 Under the section 375 of the Indian penal code  states that , sexual intercourse of a man upon his legally wedded wife won’t amount to rape provided the wife should not be less than fifteen years of age.

                         Role of Judiciary in Identifying Marital Rape

In India marriages are termed to be sacred and sacrosanct, its been referred within the boundaries of law that sexual intercourse between a husband and wife is a conjugal right and one of the marital obligation which needs to be fulfilled is one of the reasons why marital rapes still exits in India.

In  the case of  Saretha v T. Venkata Subbaih[2] it was observed by the court that , there are certain rights and duties in a marriage that needs to be performed as these are termed as the conjugal rights . certain rights like Right to privacy is not lost upon the performance of marital associations, and relying to the statements by the court it was inferred that there is no such thing as marital rape which exits as well as such nuances cannot be punished as per se.

In another case , where the union government represented on behalf of the wife , the husband in his contention submitted to the Delhi high court that a wife cannot be raped by his  husband as Marital rape as any such of  any crime is not specifically mentioned in any of the statues or provisions of the Indian laws , unless and until section 375 of the Indian penal code does not widens up its scope , marital rapes will remain unrecognizable in the census of the society. Something’s that is interpreted as marital as per the contention of an individual cannot be referred as a specific definition for one and all, therefore the law needs to be progressive with the time and certain terms needs to be specifically defined in the statues.

Its implied that marriage is an implied form of consent for cohabitation with the husband as inferred through the legislation. The Indian law makers firmly belief  that the very focus of the notion  decriminalization of  marital has the tendency to destroy the institution of marriage . The Indian law defines marriages as a contract between two individuals but any contract that allows one party to harass another party either by mentally or physically must be declared void .

In the recent amendment of the criminal laws the three member committee of Justice J.S Verma recommended various reforms for marital rape . The committee said it is not a valid defence for the crimes like rape or sexual assault, the very fact that the victim and accused are in a intimate relationship or are married to each other does not gives the rights to the husband to take away fundamental rights over her body, such factors must not justify the crimes .   

According to section 375 , explanation 2 of the Indian penal code which reads as such

 consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates a willingness to participate in the specific sexual act. Thus, to absolve a person of criminal liability, consent must be given freely and it must not be obtained by fraud or by mistake or under a misconception of fact.[3]

It is no one’s dispute that “all sexual acts” will qualify as conjugal assault. The doomsayer ring to “all” is unmissable . As it were non-consensual acts come beneath investigation. There are occurrences of courts denouncing within the nonattendance of restorative prove, and in cases where complaints are brought to the police, weeks, months or along time after commission of an offense. The simple trouble of showing proves cannot be ground for not criminalizing an offence.

But article 21 of the Indian constitution which also includes bodily integrity and personal liberty , article 21 implies that an individual has soulfully all the right to take decision over his/ her body but the very notion that  a women looses her rights over her body after her marriage is wrong concept and the nuance that marriage is an implied consent for sexual intercourse with the husband stands as a question mark upon a the fundamental rights of a women .

But in the case of Maneka Gandhi v Union of India[4] , it the court defined the term “personal liberty”  and opined that any law which is passed by the legislation go through the rule of golden triangle and any law passed by the law makers must not interfere with fundamental rights of an individual, and must be fair , reasonable and should not be arbitrary.

In the case of Maharastra v  Madharkar Narayan [5] it was opined by the jury that  the very objective behind Article 21 is “right to life with human dignity” , and every women has the right to sexual privacy .

But in the case of Justice K.S Puttuswamy v Union of India[6] it was noted by the court , it is high time that the Indian society stop relying upon the arguments of privacy with regards to a women’s right and the nation must focus on the point of Personal autonomy of a women whenever there is question with regards to a women’s right.

On 2017 a PIL was filed by RTI NGO challenging the provisions of section 375 of IPC contending section 375 of IPC must not an arbitrary question on a women’s right over her own body and forcible sexual intercourse of a man with his wife must be considered as rape . The appointed judges for this case were  chief  Justice Gitta Mittal and Chief Justice Hari Shankar , who while hearing the PIL opined that issues like marital rape are not simple matter these are great matter of concerns , until and unless the constitution does not provides any such laws against marital rape its going to contribute in promoting the rape culture in a civilized society.

Further the government of India filed an affidavit contending before the honorable court that Marital rape must not become an easy weapon for the married women to harass their husbands and highlighted the point that such laws should not be a vulnerable tool to destabilize the marriages.

The legislation while arguing on the concerned matter highlighted few points that, the law treats married women and unmarried women differently when it comes to the matter of rape laws. While it is known that rape as a crime is a violation of a women’s right under Article 21 still it is declared as a reasonable classification under article 14  just to maintain  the institution of marriage . Moreover , when the Indian laws recognizes rapes within the every degree of relationship then why it faces blanks answering rapes by husbands and this fails as a legal defense or an applicable exception to the crime.

Comparative Study of other Jurisdictions outside India where marital rape has been declared as a criminal offence

All over the world there are 52 countries which legally recognizes marital rape as an criminal offence  yet the Indian law fails to accept the existence of marital rape as such . Its high time that we should look outside the Indian jurisdiction and analyse how all these 52 countries have termed this offence as an criminal offence and what are punishments for such a heinous crime.

USA

Almost in every legislation , rapes within in a marriage is an exception but around 1993 when people were growing more concerned about women’s right and activist were taking up the women’s fight for equality and rights they raised their voice against marital rapes . The district court of Colombia passed a law against marital rape and within a year this law was applicable in all over the state in USA.

U.K

The exception of marital rape was removed by the appellant committee in England and wale in 1991 in the case of  R v R The exclusion had never been a run the show of statute, having to begin with been declared in 1736 in Matthew Hale’s History of the Supplications of the Crown, where Sound expressed: But the spouse cannot be blameworthy of a assault committed by himself upon his legal spouse, for by their shared marital assent and contract the spouse hath given up herself in this kind unto her spouse which she cannot withdraw. Comparing alteration to the statutory law was made through Area 147 of the Criminal Equity and Open Public Orders  Act, 1994. This judgment was moreover confirmed by the European Court of Human Rights within the choice of SW v. UK.

Most of the jurisdiction around the world including Nepal has already criminalized Marital rape but India still lags behind in amending its laws. A country like Nepal which has just recently abolished monarchy, the supreme court of Nepal has ruled that forced sex within marriage constitutes marital rape.[7]

                                                            SUGGESTIONS

If we turn down the pages of History it has been proved that India has criminalized many practically cultural practices like sati, Dowry etc which  used to stand as a crime against humanity at a certain point of time so it is not very difficult for India to put an end to such an heinous crime but for that the very first thing that we must do is examine light of the existing area for rape, i.e. section 375 of the IPC. Our primary point in this section is to grant a draft enactment that will guarantee that the complexities of assent, burden of verification and prove are taken into consideration.

Up next our law must recognize as well as specify that marriages can not be held as an valid defence, as recommended by the J. verma committee the removal of the exception from the section 375 is not sufficient but it is the very urgent need that the law seeks at this point of time is to cover up all the necessary circumstances under the section 375.

                                                             CONCLUSION

The wrangle about of Marital rape  is significant in setting up substantive uniformity for married ladies who are something else consigned in open and lawful talk to the limits of their domestic. It is vital to perceive that this is often a major lacuna in criminal law at present defeating the protected arrangements that give ladies uniformity and independence. As we have continually outlined, there have been hardened political, legitimate and social contentions against criminalization.

Moreover its high time that the Indian laws must recognize this crime against humanity and women must not be subject to sexual assaults or violence. If the Indian culture presumes to one  marriage of the greatest “sanskaaras” and something sacred then violence within the sanctity of a marriage must not be justified.

The very notion of the paper is to highlight certain laws like section 375 must not obstruct and be arbitrary to  the fundamental rights of women. Relationship of husband and wife between the accused and the woman will not be a defence.

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[1] Section 375 of the Indian Penal code

[2] Saretha v T. Venkata Subbaih AIR 1983 AP 356

[3] Section 375, explanation 2 of IPC (meaning of the word consent)

[4] Maneka Gandhi v Union of India AIR 1978 SC 597

[5] Maharastra v  Madharkar Narayan AIR 1991 SC 207

[6] Justice Puttuswamy v Union of India 2017 10 SCC 1

[7] http://www.i siswomen.org/womenet/lists/we/archive/

BACKGROUND OF THE CASE:-  The cited case  deals with basic sections of the Indian contract    Act 1872, which includes offer and acceptance as the basic ingredient of a valid contract. The very focus of the mentioned case significantly deals with the section 3 of the Indian contracts Act 1872  which affirms about the importance of communication in a valid contract.

CASE DESCRIPTION :- The defendant Gauri Dutt settled in the city of  Cawnpore . The defendant’s nephew went missing on a certain day . He asks all of his servant to search for his nephew , the plaintiff  Lalman shukla who happened to be one of the munibs working in the defendants firm was sent to Hardwar along with some maintenance for his railways expenses and fares to search for the boy. In the mean time the defendant Gauri Dutt publishes posters of his nephew all around the city declaring who ever finds his nephew is entitled to a reward of Rs. 501 . The plaintiff  Shukla finally traces the boy in Rishikesh and brought him back to Cawnpore , the defendant rewarded shukla with two sovereigns and a twenty rupees on the return of his nephew. The plaintiff continued his service and continued working under him for a period of six months and he did not asked for the further payment . But when he was dismissed from his services, the plaintiff filed a suit against the defendant stating that he was entitled to the reward for finding his nephew , he claimed that the defendant promised him to pay the reward amount along with the  payment for the travel expenses as well as additional gifts. The certain allegations were found to be false , baseless and untrue as the posters were issued after the departure of the plaintiff to hardwar but the plaintiff claimed that the posters were sent to him too.

So, the issues which were raised in the court of law were –

1. Whether the defendant was entitled for the reward ?
2. Whether there is need of acceptance to the offer for the binding of a contract ?
3. Whether the contract is a valid contract or not?

The court dismissed the claims of the plaintiff on the contentions made by the defendant’s counsel , the counsel stated that claims can only be maintained when there is contract between any two parties or more , there needs to be an offer and relying upon the offer there needs to be an acceptance but here in this case the plaintiff was obligated for the task to find the boy, therefore he is not entitled for the reward. Further the plaintiff’s counsel contended  that privity of a contract is absolutely irrelevant neither knowledge and motive are necessary for it.

The plaintiff’s counsel cited Williams v Carwardine[1] and Gibbons v Proctor[2] where in mere actions or performance of the parties constitutes of an offer and acceptance, as well as entitles the parties for the reward .  In case of Public advertisements the declaration of a reward is an offer and performance for such an act regarding the advertisement affirms an acceptance, this contention has already been affirmed in the section 8 of the Indian contracts Act which states that “performance of the conditions of a proposal is an acceptance of the proposal.”[3] Were in a particular advertisement is made declaring a reward and a particular act has been performed to achieve the notion of the advertisement then the overall act in itself constitutes of a valid contact.

ANALYSIS

Based upon the arguments and contentions made by the counsels in this case , I feel the plaintiff is not entitled for the rewards he claimed for.

As in the present case , a mere claim cannot give rise to a valid binding contract. In the present case the plaintiff was obligated to do the certain work , neither there was any form of offer nor there was any form of acceptance. Thought the nature of the work for which the plaintiff was obligated for was beyond the scope of a munib as it is not a primary duty of a munib to search for a missing person but he gave his assent to go and search for the boy , he gave acceptance for the particular work he was assigned for. Moreover the advertisement or the declaration of the rewards was done after his departure to Hardwar and before that he had already assented to perform his assigned duty , therefore the performance of the act cannot be substantiated as an consideration in reference with the defendant’s promise .

In my opinion a very crucial part of a valid binding contract can only take place when an offer has been communicated to the subsequent party . It is the very basic element to constitute a contract , which has been stated in the section 3 of the Indian contracts Act 1872. In the present case the plaintiff was unaware of the advertisement as the declaration was made after he departed to Hardwar , he came to knew about certain thing as such reward after he came back to Cawnpore. Neither the Defendant ever exchanged any such words with the plaintiff nor he promised him for any such things.

As  seen in the case of Carlil v carbolic smoke ball[4] and referring with to the present case it has been found that an appellant cannot claim for any such reward where there has been absence of the knowledge of the offer and prior to that if any acceptance has been assented to it won’t be considered to be a valid acceptance either. The same was also seen in the case of  Ramchandra Chintaman v Kalu Raju [5] affirming about the absence of knowledge of offer.

CONCLUSION

Adhering to the principles of  a general offer the court laid down the requisite conditions for a valid contract , stating the important elements and requirements such  as offer, acceptance , communication of the offer and under what conditions such fundamentals of a contract determine whether a party claiming for a certain reward is entitled for it or not. Here the nature of the contract was little confusing and ambiguous in nature as two contracts were clashing or overlapping each other , but as such the plaintiff was never a party to the contract neither any communication of offer was seen between both parties which could establish a contract between them, though it was a mere general offer as it was accepted before the communication of the offer , it never fell under the scope of rewards as the plaintiff was obligated to do the task as given by his master (defendant). The performance of the act with the absence of knowledge of offer cannot be taken into consideration for the claim . Hence in my opinion I firmly believe the court  passed  an order relying upon the relevant sections of the Indian contracts Act 1872 and justified itself by denying the plaintiff for the rewards.

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[1] Williams v Carwardine [1833] 4B, & A, 621

[2] Gibbons v Proctor [1891] 64 L.T. 594

[3] Section 8 of the Indian Contracts Act 1872

[4] Carlil v carbolic smoke ball  [(1893) 1 QB 256]

[5] Ramchandra Chintaman v Kalu Raju [1878 ILS 2 Bom 362]

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