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Corrective rape: Obstacle to a new dawn

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Societies generally go through a series of seismic cultural changes that force individuals to come to terms with their regressive attitudes and biases. One of these changes has been the gradual positive shift in acceptance for the LGBTQIA+ community. On the other hand, India has been frustratingly slow in being inclusive and progressive when it comes to LGBTQIA+ individuals’ rights. For instance, it took almost 157 years to finally decriminalise anal sex provided under S. 377 of the IPC. The judgement of the Navtej Singh Johar case starkly divided people. Where public opinion in India’s metropolitan areas was in favour of the judgment, religious organisations and the rural populace remained firmly against the same. A sizeable population, therefore, sees homosexuality as an evil to society. There is institutionalised hatred towards this community which can come out in many forms. Instances of physical assault and other different types of violence against members of the LGBTQIA+ community is fairly common. Not to mention other ways in which members of this community continue to face social exclusion. Recently, however, there has been a concerning rise in instances of corrective rape in India.

Corrective rape or curative rape is the practice of forced sexual intercourse with an individual due to their perceived sexual orientation or gender identity. Generally, such a hate crime intends to convert the person’s sexual orientation to enforce heterosexuality or conformity to heteronormative gender stereotypes. The crime was first identified in South Africa. It was generally committed on lesbian women, mostly aided and abetted by members of their family or local community. This crime is not just restricted to South Africa and is perpetrated upon LGBTQIA+ individuals in several countries. In India, too, corrective rape is a reality that many people face. S. 375, read with S. 376 of the IPC, deal with rape. S. 375 defines different types of forced sexual intercourse by a man with a woman, while S. 376 states the punishment for rape, i.e. rigorous imprisonment, which shall not be less than ten years, but may extend to imprisonment for life. However, the act of ‘corrective rape’ is not separately defined in Indian criminal law.

Apart from being a forced sexual act, corrective rape also has different psycho-social dimensions. Corrective rape stems from the perverse notion that heterosexual impulses can be brought about, or homosexual ones can be blunted in LGBTQIA+ individuals through sexual intercourse. Female victims are told that they are being shown “what they are missing”. In contrast, male victims have related gang rape accounts where the objective is to make the experience so violent and frightening that the victim fears potential homosexual experiences afterwards.

There is another reason behind corrective rape, which seems to be that non-heterosexuality is a kind of conditioning based on one’s environment, which needs ‘fixing’. There is an outright rejection of the scientific community’s conclusions that sexual orientation flows from genetics and intrinsic biological processes rather than external environment. There is ample evidence to support that homosexuality is not a product of one’s environment. Corrective rape against lesbians, for instance, is not solely inflicted because of their perceived lack of conformity with heterosexuality but also has to do with the way we see the stark differences in representations of gender in our society. A homosexual individual is not only perceived as a deviant in relation to sexual orientation but is also seen to be deviating from the conformity to gender binary stereotypes in our society. Gay men could be perceived as more effeminate than other men. Similarly, lesbian women may be perceived as displaying more masculine character traits than their heterosexual counterparts. These illusory and subjective representations of gender that are internalised in our society, are responsible for the violence meted out to members of the LGBTQIA+ community in the form of curative or corrective rape. It seeks to submit its victims to act according to orthodox gender binary perceptions while also attempting to convert them to heterosexuality.

Corrective rape is a twisted form of conversion and submission. The Courts have taken a firm stand against conversion therapy of individuals based on their sexual orientation. The Madras High Court in S. Sushma v. Commissioner of Police, ordered a complete ban on conversion therapy and any attempts to medically cure or change the sexual orientation of LGBTQIA+ individuals to heterosexual or the gender identity of transgender people to cisgender. This was done to protect the Right to Life, Dignity, Privacy, and Freedom of Choice guaranteed by the Indian Constitution. In addition, the Court suggested that standards be implemented to provide for a framework to protect LGBTQIA+ individuals’ privacy and constitutional rights. In the case of NALSA v. The Union of India, the Supreme Court discussed the Yogyakarta Principles of the United Nations. It ultimately said that it should be a part of Indian law. Conversion therapy would then amount to a violation of Principles 17 and 18 of the Yogyakarta Principles, which state that everyone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity. No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility based on sexual orientation or gender identity.

Rape in itself is one of the most reprehensible and destructive acts known to us. Its implications and effects can be disastrous for its victims. Victims go through intense physical and mental trauma that can hamper their perception of themselves and their self-worth. S. 375, by definition, is narrow as it concludes that only men can commit rape. The Section also contends that only women can be victims of rape. This draconian and heteronormative definition of rape does not take into account the fact that a perpetrator of rape has no fixed sex or gender identity. Similarly, transgender and gender-fluid individuals can also be victims of rape. This definition of rape is another colonial relic that needs to be struck down to give way to our changing societal dynamics.

Since corrective rape occurs mainly to individuals not conforming to gender binary norms or heteronormative sexual orientations, an expansive and inclusive definition of rape under our criminal law could be a focal point for larger recognition that an evil like corrective rape exists. A legislative amendment to this Section that removes the words’ man’ and ‘woman’, thereby including every sex or gender, will be the first step to addressing the problem of corrective rape. Apart from this, when interpreting S. 376 of the IPC, Courts could be more stringent regarding punishment for instances of corrective rape. Justice Dipak Mishra, in the landmark Nirbhaya judgment, said, “Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the crime. Justice demands that the courts should impose punishments befitting the crime so that it reflects public abhorrence of the crime.”

A society always instinctively fears the unknown. That fear often turns to resentment and hatred, and in this case, the fear is directed at a community of individuals who are perceived to be deviants from the natural order. Corrective rape is the most sadistic and complete form of that fear. The most malformed and stunted pathologies give way to acts like corrective rape, and our society should not reward those pathologies. Instead of reaching out and being receptive to the needs of LGBTQIA+ individuals, our society often rebukes them or isolates them. And at its worst, our society treats them as lesser humans. What any marginalised community needs is a sensitive and understanding eye. There needs to be recognition and integration. Non-conformity to heteronormative gender perceptions and sexual orientations should not be considered as being different from the natural state of being. Inclusivity and acceptance is the only logical way forward for every society. We know that hate crime is not a product of the 21st century, but if we are willing enough, it can indeed be a relic of the 21st century.

The author is a 5th Year law student at Amity Law School, Delhi, affiliated with Guru Gobind Singh Indraprastha University.

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Legally Speaking

AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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