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Matrimonial discord and ‘irretrievable breakdown of marriage’ as a ground for divorce

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BEFORE the Supreme Court of India, on a regular basis, petitions are filed seeking exercise of power by it under Article 142 of the Constitution of India to dissolve the marriages which are totally unworkable, emotionally dead, beyond salvage and thus, have broken down irretrievably. Under the existing framework of law in India, ‘irretrievable breakdown of marriage’ is not recognized as a ground for obtaining a decree of divorce. Therefore, even in cases, for instance, where both the parties have been residing separately for over two decades; where custody of child is not in issue; where even though such situations exist but, one of the parties still does not give consent for divorce; the other party is constrained to approach the Supreme Court seeking divorce on grounds of irretrievable breakdown of marriage.

It is pertinent to note that as early as in the year 1978, the Law Commission of India in its 71st Report titled ‘The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce’ (“71st Report”) had examined this issue in detail and recommended amendments to be made in the Hindu Marriage Act, 1955 (“Hindu Marriage Act”) so as to make irretrievable breakdown of marriage as a new ground for granting decree of divorce. Accordingly, a Bill – the Marriage Laws (Amendment) Bill 1981, was brought in the Lok Sabha inter alia to amend the Hindu Marriage Act but, the Bill lapsed due to dissolution of the Lok Sabha. Till date, the said amendment has not been implemented. The consequence thereof is increase in hostile litigation between parties and increased burden on the Supreme Court. It is to be remembered that the Supreme Court is not a court for hearing regular appeals from the High Court but, is a court to decide constitutional issues of public importance.

However, in the absence of there being any specific provision for grant of divorce on the grounds of irretrievable breakdown of marriage, the Supreme Court is constrained to entertain such matters in those circumstances where “wedlock became a deadlock”.

COMPARATIVE ANALYSIS

The “irretrievable breakdown” theory was first introduced in New Zealand in the year 1920 by the Divorce and Matrimonial Causes Amendment Act wherein, a separation agreement for three years or more was made a ground for making a petition to the court for seeking divorce and the court had the discretion, whether to grant it or not. In the case of Lodder v. Lodder, 1921 New Zealand Law Reports 786, it was observed that the Legislature intended to consider the three-year separation period as sufficiently a good ground for divorce. It held that “when the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous”. It must be noted that in the aforementioned Act, the term ‘irretrievable breakdown of marriage’ was not defined as it was believed that every sick marriage had its own peculiar reason to be so and that there could be no fixed definition for it. Further, no guidelines were also laid down either by the Legislature or by the courts for exercise of discretion in such matters.

Under the Canadian Divorce Act also, “irretrievable breakdown of marriage” is clearly recognised as a ground for divorce, apart from the normal fault grounds of divorce such as adultery, cruelty, bigamy, etc. In the United Kingdom, the concept of matrimonial offence for divorce was replaced by the breakdown theory by the enactment of the Divorce Reform Act, 1969 whereby, a middle course was adopted. It made irretrievable breakdown of marriage the sole ground of divorce along with providing certain guidelines for obtaining evidence of breakdown. The Matrimonial Causes Act, 1973 (U.K.) allows for divorce to be obtained on the ground of irretrievable breakdown of marriage, if the court finds one or more of circumstances like – adultery, unreasonable expectation of cohabitation, desertion for at least two years, separation of two years in case of divorce by mutual consent, and a separation of five years if mutual consent is not present.

In India, the Special Marriage Act and the Hindu Marriage Act were enacted to govern marriages and divorces in the country. Over the years, the provisions of the said Acts have proved to be insufficient to deal with the situations where the marriage between the parties have broken down irretrievably. Despite the fact that the Law Commission of India had earlier submitted its Report in 1978 as well as subsequent judgments of the Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra,AIR 1985 SC 935 and Naveen Kohli vs. Neelu Kohli,AIR 2006 SC 1675 where, necessity to introduce irretrievable breakdown of marriage as a ground for obtaining divorce was recommended, till date, nothing has been done.

MARRIAGE LAWS (AMENDMENT) BILL, 2010

In fact, in the year 2009 also, the Law Commission of India suo motu took up the matter and in its 217th Report titled ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’ (“217th Report”) recommended that ‘Irretrievable breakdown of marriage’ should be incorporated as another ground for grant of a decree of divorce. Pursuant thereto, the Marriage Laws (Amendment) Bill, 2010 (“proposed Amendment”) was introduced in Lok Sabha which proposed to insert Section 13-C to the Hindu Marriage Act thereby, making irretrievable breakdown of marriage as a separate ground for divorce under Hindu Marriage Act. The Bill introduced certain safeguards to protect the interests of the woman and children which may suffer as a consequence of the divorce granted on ground of irretrievable breakdown of marriage. The Bill proposed to add Section 13-D to the Hindu Marriage Act, whereby the respondent-wife was provided the right to oppose the petition on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. Further, if the grant of divorce decree is opposed, then the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned. Upon doing so, if the Court is of the opinion that the divorce shall result in grave financial hardship to the respondent and that it would be wrong in all circumstances to grant it, then the court shall dismiss the divorce petition, or stay the proceedings until arrangements have been made to its satisfaction to eliminate the financial hardship.

Another provision was added namely, Section 13-E which provided that the court shall not pass a decree of divorce under Section 13-C unless the Court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made, consistent with the financial capacity of the parties to the marriage. The expression “children” would include minors, unmarried or widowed daughters not financial independent; and children with special physical or mental health conditions who require to be looked after and who do not have the financial resources to support themselves.

However, the said Bill also remained at ‘proposal stage’. Hence, the only recourse left for the parties to dissolve a dead marriage is to approach the Supreme Court. This has also left the discussion open for posing arguments for and against inclusion of irretrievable breakdown of marriage as a ground for divorce.

ARGUMENTS IN FAVOUR OF PROPOSED AMENDMENT

Before deciding as to whether the proposed Amendment is beneficial or not, the first step is to examine whether parties would want to continue in a relationship where there is total disappearance of emotional substratum. A dead marriage alive is more conducive to immorality and potentially more prejudicial to the public interest than the dissolution of the marriage bond. A dead marriage affects the mental health conditions of parties, welfare and growth of the child born out of wedlock, and leads to hostile litigation and harassment.

Under the existing framework of law, divorce can only be granted on the grounds as specified in Section 13, 13A and 13B of the Hindu Marriage Act. Section 13 provides for various grounds for divorces like cruelty, adultery, etc. is, thus, based on ‘fault theory’. Whereas, Section 13A deals with judicial separation and Section 13B provides for divorce on grounds of ‘mutual consent’. However, the aforementioned provisions does not at all deal with a situation where even though, the marriage has irretrievably broken down, still one of the spouses refuses to give consent for divorce. In such circumstance, should the parties be compelled to keep the marriage alive?

PROBLEM WITH ‘FAULT THEORY’

Under the “fault theory” of divorce, guilt has to be proven on the part of one of the spouse. The nature of the guilt being proved must pass the litmus test as prescribed by the law, and only then a decree of divorce will be granted. But, in such circumstances, sometimes proving the fault becomes difficult due to lack of evidence, non-production of evidence, etc. For instance, proving mental cruelty is very difficult. Hence, the burden to prove fault also make parties to engage in mud-slinging which brings the institution of marriage into disrepute.

Another limitation of the “fault theory” of divorce is that it requires both – an innocent party in need of relief and a guilty party against whom the relief is sought. No relief would be granted if it is found that both the parties are at fault. In such circumstances, a gradual shift from “fault theory” to ground of “irretrievable breakdown of marriage” will come to the rescue of the parties. For instance, in Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263 the Supreme Court after considering that the wife, who has been living separately for more than four decades, had instituted frivolous cases against the husband, observed that the marriage is dead from every angle and is impossible to revive and thus, no purpose would be served in keeping both the parties retained in marriage. Thus, it dissolved the marriage on the grounds of irretrievable breakdown of marriage.

DILEMMA OF ‘MUTUAL CONSENT’

Further, Sections 13(1-A) and 13B of the Hindu Marriage Act are insufficient to deal with all the situations pertaining to the matrimonial remedies. In this context, it is pertinent to understand the difference between obtaining a decree of divorce by mutual consent and obtaining a decree of divorce on the ground of irretrievable breakdown of marriage. The Law Commission of India in its 217th Report explained that ‘mutual consent’ requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available. On the other hand, ‘irretrievable breakdown of marriage’ is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties, but on the Court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably broken down. Thus, irretrievable breakdown of marriage as a ground for divorce comes as a possible recourse when both parties aren’t at consensus to obtain a divorce.

R. Srinivas Kumar v. R. Shametha, AIR 2019 SC 4914is a classic example of this kind. In this case, though, the husband and wife were living separately for 22 years but, the High Court dismissed the divorce petition filed by the husband on the ground that mental cruelty was not proved. The wife had also refused to give consent for divorce. The Supreme Court specifically held that separation of more than two decades was conclusive enough to prove that the marriage was irretrievably broken and even if, one of the parties does not give consent for divorce, under Article 142, it has the power dissolve the marriage. Hence, in the instant case, it proceeded to dissolve the marriage on payment of reasonable permanent alimony by the husband to the wife.

ARGUMENTS AGAINST THE PROPOSED AMENDMENT

Further, it is to be noted that the development of the “irretrievablebreakdown” theory occurred as a result of shift from the “fault theory” to “no fault theory” in divorce laws. Under Section 13B of the Hindu Marriage Act, divorce can be obtained by mutual consent without requiring one party to prove fault on part of the other. Additionally, under Section 13(1-A) of the Hindu Marriage Act, the parties may file for divorce if – (a) the parties don’t resume cohabitation after a period of one year or upwards after the passing of a decree for judicial separation, or (b) no restitution of conjugal rights happens between the parties for a period of one year or upward after the passing of a decree of restitution of conjugal rights. The Bombay High Court in Madhukar v. Saral, AIR 1973 Bom 55 observed that the enactment of Section 13(1-A) is a legislative recognition of the fact that if there has been a breakdown of marriage there is no purpose in keeping the parties tied together.

DIVORCE CAN ONLY BE GRANTED IN TERMS OF THE PROVISIONS OF HINDU MARRIAGE ACT

However, there have been many circumstances, where the courts have showed their reluctance in dissolving the marriage on grounds of irretrievable breakdown. Time and again, the courts have emphasized that since there is lack of legislative intent to introduce irretrievable breakdown of marriage as an additional ground for divorce, no divorce must be granted on such grounds by courts. In Reynold Rajamoni v. Union of India, AIR 1982 SC 1261 and Vishnu Dutt Sharma v. Manju Sharma, AIR 2009 SC 2254, the Supreme Court observed that when legislative provisions specify the grounds for granting a divorce, they constitute the only conditions on which the Court has jurisdiction to grant divorce. Granting a divorce on the ground of irretrievable breakdown, would mean adding a separate ground for divorce which can only be done by the legislature.

Irretrievable breakdown cannot be used as a magic formula to obtain divorce:

Also, another arguments against the proposed Amendment is that when the existing grounds for divorce aren’t proved, the concept of irretrievable breakdown of marriage shouldn’t be used as a magic formula to obtain a divorce decree. For instance, in cases, where the husband or wife utterly failed to prove grounds of cruelty, the Court held that the husband or wife will not entitled to a decree of divorce. In a country like India, where marriage is considered sacramental, allowing dissolution of the marriage in a light manner is unacceptable.

WELFARE OF CHILD IS OF PARAMOUNT CONSIDERATION

Other concerns raised were regarding welfare of child born out of the wedlock that is, whether he/she will be able to get the love and affection of parents in case the marriage is dissolved in a light fashion. For instance, in Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637, the Supreme Court refused to grant divorce on ground of irretrievable breakdown of marriage in order to secure the future of the child born out of wedlock. Thus, divorce on such a ground becomes a disadvantage for the survival of the wife who is not financially independent and also, has the responsibility to fulfil the needs of the child born out of the marriage being dissolved.

NO ONE CAN BE ALLOWED TO TAKE ADVANTAGE OF THEIR OWN WRONG

Lastly, there are two other major grounds for opposing the proposed Amendment : firstly, it will allow the spouses to terminate the marriage at their will; and secondly, it will allow the guilty spouse to take advantage of his/her own fault. For instance in Chetan Dass v. Kamala Devi, AIR 2001 SC 1709, the Supreme Court refused to grant divorce on the grounds of irretrievable breakdown of marriage to the husband after observing that it was the husband who had meted out cruel treatment to the wife. Therefore, allowing the divorce in such circumstance would mean the husband is allowed to take advantage of his own wrong.

EXERCISE OF POWER BY SUPREME COURT UNDER ARTICLE 142 OF THE CONSTITUTION OF INDIA

Article 142 of the Constitution empowers the Supreme Court to pass such decree or order as may be necessary for doing complete justice between the parties in a cause of matter pending before it. Thus, the provision vests the Supreme Court with vast powers to issue any directions or order (irrespective of the fact whether the issue is covered by any legislative provisions exists or not) for the purpose of doing complete justice between the parties. Such an orders or direction is binding in terms of Article 141 of the Constitution of India. It is to be remembered that such a power is only vested with the Supreme Court and no other Court has similar power.

Talking about matrimonial matters, generally, the Supreme Court doesn’t exercise its power under Article 142 to dissolve the marriages. However, the recent trends have shown that where grave injustice is being caused; where parties are indulging in frivolous litigation, or where welfare of child is involved, etc. the Court has exercised its power and dissolved the marriage on grounds of irretrievable breakdown of marriage on payment of reasonable permanent alimony. In the landmark judgment – Anil Kumar Jain v. Maya Jain, AIR 2010 SC 229, the Supreme court held as under:

“(1) Although irretrievable breakdown of marriage is not a ground for divorce under Sections 13 or 13B of the Hindu Marriage Act, 1955, it can be applied to a proceeding under either of these provisions only if the proceedings are before the Supreme Court. Neither the civil courts or the High Courts can pass such orders.

(2) Only the Supreme Court in order to do complete justice, can by way of Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13B and pass a decree for mutual divorce, without waiting for the statutory period of six months.”

Since the year 1990, there are about 20 to 25 cases where the Supreme Court has exercised its powers under Article 142 to grant decree of divorce on the ground of irretrievable breakdown of marriage. But, in all such cases, power has been exercised with much care and caution, for the interest of both the parties to the marriage, and in exceptional circumstances only.

The purpose of exercising the power has been to put quietus to all litigations between the parties and to save them from further agony. It is pertinent to note that there is no straight-jacket formula which the Supreme Court applies for granting divorce on the grounds of irretrievable breakdown of marriage. It depends on facts and circumstances of each case. However, various judgments of the Supreme Court would show that the important facts which are considered while granting divorce by exercising power under Article 142 are:

Long period of continuous separation between the parties;

Numerous litigations initiated by parties against each other and which has been pending for years;

Harassment and mental agony being caused to the parties due to litigations;

No possibility of reconciliation or amicable settlement either through Court or through family members;

Interest of the child born out of wedlock. For instance, his custody, education, general welfare, etc.

Maintenance of the wife if she is dependent;

Alternate accommodation for the wife and the child born out of wedlock.

The judgment rendered by the Supreme Court in Naveen Kohli v. Neelu Kohli,AIR 2006 SC 1675 is a landmark judgment on this issue and is still being followed. In fact, relying upon the said judgment, in Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220 and Sukhendu Das v. Rita Mukherjee, AIR 2017 SC 5092, the Supreme Court dissolved the marriage as there was total disappearance of emotional substratum. Therefore, in order to ensure that the parties may live peacefully in future, it put a quietus to litigation between the parties. This was also considered to be in the interest of the child. Also, in Satish Sitole v. Ganga, AIR 2008 SC 3093, the Supreme Court dissolved the marriage as both parties had been living separately for the past 14 years and there was no scope of any reconciliation despite the birth of a male child.

Increased burden on the Supreme Court and pendency of cases:

However, the effect of this is increased burden on the Supreme Court. It is in public knowledge that the courts in India are overburdened with cases and a matter instituted in a court takes years to get decided. As of September 2020, there are over 55,000 cases pending in the Supreme Court, 51 lakhs cases pending in the High Courts, and 3.5 crore cases pending in the subordinate courts across India. Considering the fact that the Supreme Court is not a regular court of appeal and a large number of cases are already pending, shouldn’t the Parliament implement the proposed Amendment?

After perusing the proposed Amendment and also, various judgments of the Supreme Court, as aforementioned, it is clear that both provide for adequate safeguard for protecting the interest of spouses and the child. However, in the absence of implementation of the proposed Amendment, the burden on the Supreme Court is unnecessarily being increased. There have been instances where though parties have not been residing together for more than a decade; all attempts of reconciliation failed; custody of child was also not in dispute even then, the Family Court or the High Court did not grant divorce on the sole ground that it is only the Supreme Court which can dissolve the marriage on grounds of irretrievable breakdown of marriage. Therefore, after spending years in litigation awaiting the judgment of courts below, the party ultimately is constrained to approach the Supreme Court. Such cases can be taken care of without approaching the Supreme Court if the amendment, as proposed, is implemented. It would save a lot of time and money of parties, prevent unnecessary harassment due to long-drawn litigations, and reduce the burden on the Supreme Court.

Conclusion:

Therefore, the time is ripe for the Parliament to implement the proposed Amendment and include irretrievable breakdown of marriage as an additional ground for divorce in the Hindu Marriage Act. This will ensure that the parties aren’t forced to continue in a marriage which has broken beyond salvage with no possibility of reconciliation. Moreover, it is both – in public interest and in the interest of parties and their family members concerned to dissolve an emotionally dead marriage. The proposed Amendment, if implemented, would solve many problems such as:

No separate petition under Section 125, CrPC would be required to be filed for claiming maintenance;

No separate petition would have to be filed seeking custody of the child;

Before granting divorce, it would be seen that adequate protection is given to the parties to protect their financial and other interests;

Mud-slinging which leads to unnecessary and long drawn litigations will be avoided, and;

Such issues can be resolved in Family Court itself without approaching the High Court or the Supreme Court for that matter, thus, reducing the burden on them.

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Legally Speaking

Duty to defend: Lawyer’s moral obligation to represent unpopular client

Article 1 mainly focuses on the aspect of equality in dignity and rights. Equality is very essential and even social justice is intrinsically connected to it. Therefore, promoting equality helps in providing legal aid to everyone. Article 7 is even more relevant since it provides that each and every individual is equal before the law and everyone is entitled to legal protection and legal aid without any discrimination.

Jayant Malik

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Maintenance of law and order within a society is of utmost importance and lawyers play a key role in ensuring that law and order is maintained. The profession of a lawyer is a noble one and a lawyer is often seen as someone who fights for the rights of individuals and defends them in the trickiest of situations. But a lawyer is not always applauded or appreciated for his acts and many a times he faces condemnation from the society for defending the guilty or who is often called as the “unpopular client”. So it can be said that the lawyer is equated to both the God and the Devil depending upon the situation.

Even within the Indian legal system the situation is no different. Often the lawyers (especially the criminal lawyers) who decide to defend a client irrespective of the offence they have committed howsoever grave it is, face condemnation and public outrage for their decision of defending such a client. Moreover it is not just the public front from where they face the heat, but they also face fury from the media houses at times. All in all, on several occasions the lawyer is associated to the actions of his client due to which he faces such condemnation. This gives rise to a very important issue i.e. whether the lawyers should be guided by ethical values and notions of justice while selecting to represent any client?.

In this piece I shall deal with this issue and discuss the whole idea of the duty that a lawyer has, to defend his client in great detail along with a client’s right to legal representation. Moreover, I would argue as to why it is important for the lawyers to represent their clients even though they are considered as unpopular clients. Over the years there has been a lot of debate on whether it is morally right for a lawyer to represent an accused. Indian society has most of the times looked down upon such advocates who have decided to defend the accused. 

Through this piece, I would further discuss the concept of “Cab Rank Rule” and would analyse why it becomes important for the lawyer to represent a client irrespective of the guilt of the accused and the thinking of the society. The piece would further throw some light on several landmark judgments wherein the criminal lawyers defended unpopular clients and fulfilled their duty and moral obligation of being a lawyer. Cases where the lawyers defended the accused irrespective of the fact that, they knew the accused had committed the offence and the whole society was against them, such as defending Ajmal Kasab, the terrorist who was involved in the 26/11 attacks, the rapists in the Nirbhaya Rape Case, the case that shook the entire nation and several such other matters. In the end, I would conclude by arguing in favour of a lawyer’s duty to defend and would try and devise a new defensive strategy that can be adopted by the lawyers to justify their actions and to fight against the moral condemnation that they face by the society or the media whenever they defend an unpopular client. 

CLIENT’S RIGHT TO LEGAL REPRESENTATION

While discussing a lawyer’s duty and the moral obligation that he has to defend his client, it is very important to understand that a client is also entitled to legal aid and representation and it becomes essential to discuss a lawyer’s duty to defend vis-à-vis a client’s right to legal representation. An individual is entitled to legal aid and representation and at times when a situation arises where the person who is in need of legal aid is not that financially sound then in such situations there are instruments which state that such person has right to free legal aid. There are several international instruments that provide for an individual’s right to legal aid and representation.

First, it is the Universal Declaration of Human Rights, 1948 (UDHR). A declaration that came into force so as to protect the basic human rights of the individuals. The UDHR has emphasized a lot on the welfare of poor and one of the main objectives of it has been to protect the basic fundamental rights of the people. If the Preamble of the Declaration is looked at carefully it recognises that the rights of the individuals are indeed the foundation of freedom, justice and peace. From its language it is pretty much evident that equality and justice are the main objectives of the declaration and that providing legal aid to the needy becomes sine-qua-non for the achievement of the objective enshrined in the preamble of the UDHR. Some of the relevant articles of the UDHR are Article 1, 7 and 10.

Article 1 mainly focusses on the aspect of equality in dignity and rights. Equality is very essential and even social justice is intrinsically connected to it. Therefore, promoting equality helps in providing legal aid to everyone. Article 7 is even more relevant since it provides that each and every individual is equal before the law and everyone is entitled to legal protection and legal aid without any discrimination. It also states that no person should be denied legal protection and representation just because he does not have the financial capacity and in such situations it is the duty of the state to provide all such people who are in need even if it is out of state expenditure. Moreover it is important to note that several articles of the Indian Constitution hold a close similarity with this provision such as Article 14, 15, 16 and 39A. Article 10 is also pretty relevant as it provides that everyone should get an opportunity to be heard by an independent and impartial tribunal in determination of his rights. Additionally, ‘hearing’ means that the aggrieved person should be heard through a counsel (lawyer). Furthermore, Article 50 of the Indian Constitution holds similarity with this with this provision of the UDHR and is based on a similar concept.

Another international instrument that mandates legal aid and equality before the courts is the International Covenant on Civil and Political Rights (ICCPR). Article 14(1) of the ICCPR explicitly provides that all the persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Moreover, Article 14(3) lists out certain minimum guarantees that an individual is entitled to while determination of any criminal charge against him, in full equality:

To be informed promptly the nature and cause of the charge against him;

To have an adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

To be tried without undue delay;

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

Now looking at the Indian perspective, Article 39A of the Indian Constitution provides for the right to legal aid and representation. It provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Importantly, we must consider the case of Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, a landmark judgment, where the Supreme Court held in favour of the under trial prisoners who were imprisoned for long periods without any justification. Moreover the key take away from the case is that Article 39A is a constitutional directive that emphasizes on the fact that free legal aid and a proper representation is an essential element of the ‘reasonable, fair and just’ procedure. Further this right is to be considered implicit in the guarantee of Article 21.

THE MORAL OBLIGATION OF LAWYER TO DEFEND THE UNPOPULAR CLIENT

As discussed above the lawyer’s duty to defend arises out of a client’s right to legal aid and representation. Even the individuals who have been accused of committing heinous crimes also have right to legal aid and representation and are entitled to have a fair and just trial.

“Innocent until proven Guilty” is a well-known saying which implies that any individual cannot be convicted for a crime until he is proven guilty of committing the said offence. According to this, the onus of proving the guilt of the accused lies on the prosecution and the job of the defence counsel is to poke holes in the theory of the prosecution. Consequently, a defence lawyer plays an important role during a legal proceeding. But at times the defence lawyers face the heat of the public and media for defending clients who have been accused of committing heinous crimes such as rape, murder, an act of terrorism etc. and in such situations the dilemma that arises is “whether a lawyer should be guided by ethical values and notion of justice while selecting to represent any client” or “whether a lawyer should be affected by personal opinions and public opinions while choosing to represent a client”.

Especially in India, it is even more relevant because the public more often than not associates a lawyer to the actions of his client and questions his moral and ethical values. Moreover, the public condemns the lawyer who chooses to represent a client that is unpopular or who has committed a grave offence. In response to the aforementioned dilemma, it is first important to understand that a lawyer is an officer of the court and it is his duty to defend his client irrespective of the offence that the client has committed. In other words, a lawyer has not only a moral but also a legal and constitutional obligation to defend his clients to the best of his abilities and that a lawyer cannot allow his personal beliefs or morals to affect his professional duties. This obligation is based out of an English concept known as the “cab-rank” principle/rule.

CAB RANK PRINCIPLE

The “cab-rank” principle basically states that every lawyer must accept the brief that comes before them and provide the necessary legal assistance unless there are compelling reasons to do otherwise. The principle is based on the idea of a cab driver who is standing at the head of a queue at a taxi stand and is supposed to offer his services to the first passenger who approaches for a ride.

It is also pertinent to note that Section 1 of the Advocates Act explicitly mentions about the duties of an advocate towards his client and its rule 11 is based on the “cab-rank” principle. So the “cab-rank” rule has some relevance within the Indian legal system as well. Rule 11 of the Advocates act provides that “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case: “Special circumstances may justify his refusal to accept a particular brief”. This provision within the Advocates act makes it pretty much clear that the lawyer has a moral obligation to represent his client irrespective of the offence that he has committed. Usually in the practical world, it is not followed though. At times the lawyers refuses to take up a particular case because he fears that taking up such a case would invite public outrage or where he himself feels that his personal morals would not allow him to defend such a client. There have been various landmark cases where either the lawyers refused to take up the case or they faced massive public outrage for defending the accused.

One such case is the case of Ajmal Amir Kasab, the only terrorist who was captured alive during the 26/11 attacks. There was a massive public outrage which was quite understandable considering the horrendous crime that he had committed killing hundreds of innocent people, but does that mean that he should have been hanged straight away without following the due process of law? The answer to it is “No”. An individual who is a dreaded terrorist also has a right to fair trial even if the offence that he has committed and charges that have been levelled against him are as clear as a daylight. In this case the Bombay metropolitan magistrate’s court bar association unanimously decided not to represent the terrorist in court and hence the government appointed Senior Advocate Raju Ramachandran as a state appointed amicus curiae in the case. Post the verdict while giving an interview, Senior Advocate Ramachandran acknowledged the lawyer’s duty to defend and stated “when an accused is undefended the court appoints a lawyer to defend him. To refuse to assist the court, when asked, is a dereliction of duty”.

He further emphasized on the fact that within an adversarial system it is important for an accused to have counsel for a fair trial. He stated that a counsel is important for an accused because the accused has a right to assert his or her innocence and to poke holes in the case of the prosecution. The counsel must say everything in the favour of the accused that needs to be said.

Another prominent criminal lawyer, late shri. Ram Jethmalani also pressed on the fact that no lawyer can refuse to defend an accused until and unless there are compelling reasons for the same and it is the moral duty of a lawyer to provide his services to the accused howsoever unpopular he is. With several lawyers declining to take up the case of the terrorist Ajmal Kasab and denying to provide their services back in 2008, Mr. Ram Jethmalani stated that “there is express rule of Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular”. Further in an interview he state that “no lawyer has the right to say that he will not defend an accused”. So it is pretty evident that over the years, even the biggest names in the business, have advocated for a lawyer’s duty to defend even though they faced heat of the public and media for defending an unpopular client.

If we look at the Nirbhaya Rape case wherein the four accused were hanged previous year, the situation was a bit different. The lawyers representing the accused in the case gave their all to reduce the death penalty to life imprisonment and to delay the hanging. They tried their best to make a strong case for the accused even though it was an open and shut case. Although the ‘public speeches’ and ‘conduct’ of some of the Nirbhaya Lawyers may be problematic in the eyes of the people, however, they did succeed in providing qualitative legal representation to the convicts throughout the judicial proceedings. In this way, the lawyers representing the accused fulfilled their moral obligation and their duty to defend the accused despite the fact that the crime they committed was a heinous one.

CONCLUSION

In my opinion, the lawyer has a duty to defend an accused irrespective of the crime that he has committed. It is not that a terrorist or a rapist should not be punished for the crime that they have committed but punishing them is the duty of the court when there guilt is proved. A lawyer’s duty is to provide his services to the client and put in his best effort when representing the client. It is also important because if an accused be it a terrorist or rapist is not given a proper representation or an opportunity to present his case, then the fairness of the trial would come into question. When it comes to public outrage or a parallel media trial, a lawyer should not that take that into consideration while choosing a client and instead they should give priority to their professional duties. Lawyers are officers of the court and their primary duty is to provide assistance and aid to their clients and assist the court in deciding the guilt or innocence of individuals. In conclusion, I would like to recall the with wise words of the legendary criminal lawyer late Sh. Ram Jethmalani: “I decide according to my conscience who to defend. A lawyer who refuses to defend a person on the ground that people believe him to be guilty is himself guilty of professional misconduct.”

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Can government impose restriction on movement?

An analysis of restrictions being put on movement in the light of Covid-19 pandemic.

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INTRODUCTION

At the end of December 2019, the first case of the Coronavirus was reported from the Wuhan Municipal Health Commission, China. Subsequently, the virus spreads around the globe. Later on, at the end of January 2020, the first case of the Coronavirus was reported from Kerala. Before this first case, Indians including the citizens and the government were indulged in their work and no one was worried about the same. However, the situation gets in its worst form in just two months. Whereby, the cases increased from one to thousands and the government have no option other than to put the whole nation under the Janta curfew. On the 22nd of March 2020, the Janta curfew was announced and from here the entire citizens were directed to remain in their homes. Furthermore, on the evening of 24th of March, 2020, as per the need of the situation, the ruling government announced the lockdown for twenty-one days whereby it restricted the movement of 1.38 Billion citizens of India. Furthermore, during this time every Everything including Shops and all other services like Flights, Buses, Trains, and all other public transport were on the stand. However, very limited things which include the essential daily goods were permitted which was also subjected to a huge restriction. Moreover, as of the 29th of May 2021, it has affected more than 100 million people and resulted in more than 3.5 million deaths globally. During this time many slogans like ‘Ghar me rahe, surakshit rahe’ were also promoted to tackle this unnatural and unwanted pandemic. In this article, we will see the constitutionality of the Lockdown. Furthermore, we will also see whether the government is authorized to infringe the ‘right to Movement’. 

FREEDOM OF MOVEMENT UNDER ARTICLE 19 OF THE CONSTITUTION

The Supreme law of the land, the constitution of India by virtue of its article 19 gives the right to movement. Article 19 (1) (d) reads as:- Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right (d) to move freely throughout the territory of India. However, this article is not absolute in nature and the government can impose some restrictions on it. However the same is subject to certain conditions. Article 19 (2 ) authorizes such reasonable restrictions, which reads as:- Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It means that if the restrictions imposed are reasonable and if it fulfills the other conditions it will not be violative of the rights given under article 19 (1) (d). In the current scenario, the lockdown was the need of the hour, and thereby it was reasonable and hence the government action was legitimate.

EPIDEMIC ACT AND DISASTER MANAGEMENT ACT

Epidemic Act is India’s 123- years old law which was formulated pre-independence mainly to control plague in the late 1800s. This act authorizes the central and state government to take special measures to control the epidemic. Section 2 of the act reads as :- Power to take special measures and prescribe regulations as to dangerous epidemic disease.—(1) When at any time the 2 [State Government] is satisfied that 2 [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the 3 [State Government], if 4 [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as 4 [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

(2) In particular and without prejudice to the generality of the foregoing provisions, the 2 [State Government] may take measures and prescribe regulations for— (b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.

Furthermore, Section 2 A of the said act, talks about the power of the central government, which reads as “:-When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, 8 [the Central Government may take such measures, as it deems fit and prescribe regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or aerodrome, as the case may be, in the territories to which this Act extends and for such detention thereof, or of any person intending to travel therein, or arriving thereby, as may be necessary.]

Disaster Management act is an act of 2005. It stipulates the establishment of a National Disaster Management Authority (NDMA), State Disaster Management Authorities and District Disaster Management Authorities. It was an special act which was passed with the view to tackle with the disaster including the natural as well as man-made. As per the definition provided under Section 2 (e) of the act, a disaster has been defined :- ‘disaster’ as a catastrophe, mishap, calamity or grave occurrence in any area – arising from natural or man-made causes, or by accident or negligence – which results in substantial loss of life, human suffering, or damage to and destruction of property or the environment; and its nature or magnitude is beyond the coping capacity of the community in the affected area.

Furthermore, the ‘Disaster management’ under section 2 (e) of the act is defined as a continuous and integrated process of planning, organising, coordinating and implementing measures necessary to prevent the danger or threat of a disaster; mitigating or reducing the risk of a disaster or its consequences; capacity-building; preparedness to deal with a disaster; prompt responses to a disaster; assessing the severity or magnitude of a disaster; evacuation, rescue or relief; and rehabilitation and reconstruction.

Moreover, Section 6 and Section 10 of the Act, PM Modi, who is the chairperson of the authority, declared Covid-19 as a national disaster so that the entire country has uniform lockdown regulations, which are easier to implement, especially on which services and functions are allowed and what are not. Like, just before lockdown was imposed to whole India, the state specific lockdowns and a lockdown of 82 districts by the federal government — both under the epidemics law — were inconsistent about the use of private vehicles. Under the Disaster Management Act, states are required to implement the national plans.

CODE OF CRIMINAL PROCEDURE, 1973

It is one of the Prominent acts of which are currently prevailing in India. The code of criminal procedure is procedural in nature except for some sections which are substantial in nature. Section 144 of the code plays a vital role in order to tackle the issues where the administration has to prohibit the gathering of the people at one place. This act also helps in order to tackle the current ongoing pandemic. Section 144 of the code prohibits the assembly of four or more people in an area. The competent authority prohibits any presence or movement of one or more persons in public places or gathering of any sort anywhere, including religious places subject to certain conditions. All movement of one of more persons in the city is prohibited between 9 pm and 5 am at many places.

CONCLUSION

Whether the Coronavirus is a natural virus or it is a man-made virus was a controversial issue, which was a hot topic of discussion among prominent scientists around the globe. However, this controversy doesn’t matter at all, what matters is that this virus has not only disturbed the life of people but also have taken many lives around the globe. To tackle such a pandemic Indian government has restricted the movement of its citizens. At the beginning of this article, we have seen that the question before us was that, whether such restriction imposed was legitimate or do the government has any power to impose such restrictions.

In the light of the above discussion we have seen that there are certain laws including the Code of Criminal procedure, 1973, and some special acts like the Epidemic disease Act, and Disaster Management Act which authorizes the central and state government to impose some restrictions and take some special measures to tackle such natural or man-made disaster. We can defiantly conclude ourselves that the act of the government was the need of the hour and the action taken by the government was as per the laws which are currently prevailing in the nation. Thereby, the act of the lockdown was legitimate and no rights of the citizens have been violated. The action of the government was in the interest of the citizens as well as it was justified too.

The Epidemic Act is a 123-year-old law which was formulated pre-Independence mainly to control plague in the late 1800s. This act authorises the Central and state government to take special measures to control the epidemic. Section 2 of the Act reads as: Power to take special measures and prescribe regulations as to dangerous epidemic disease.—(1) When at any time the 2 [State Government] is satisfied that 2 [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the 3 [State Government], if 4 [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as 4 [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

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Role of experts cannot be undermined in shaping the opinion of courts

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To start with, before I venture to elaborate exhaustively on the role played by experts in shaping the opinion of the Courts, it is imperative first and foremost to understand who really an expert is. In layman’s language, an expert can be inferred as “Someone (a person) who has special knowledge, skill or experience in any particular field like foreign law, science, art, handwriting or finger impression etc by virtue of having acquired it through years of unremitting focus, learning, practice, observation and proper studies which others don’t have and which is what distinguishes them from the rest.” This alone explains why the opinion of experts is so sought after and is valued immensely in shaping the opinion of not only people but also of the Courts and very rightly so!

Quite ostensibly, Section 45 of the Indian Evidence Act also discloses who all can be called experts. It says that, “When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.” Section 45 itself proves beyond a straw of doubt that the court in all such cases when it has to pronounce judgment in a case where the opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions is required, it prefers to take the opinion of those persons who are specially skilled in it by virtue of which they are called experts and such opinion certainly constitute relevant facts. Also, here it must be borne in mind that the opinion of such experts which constitute relevant facts play a major role in shaping the opinion of the court and in arriving at a reasonable and right decision.

Be it noted, as per the Stroud’s Judicial Dictionary, “Expert witness is one who has made the subject upon which he picks a matter of particular studies, practicing or observation and he must have a particular and special knowledge of the subject.” According to Black’s Law Dictionary, an expert is defined as “A person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may render their opinion that will assist the fact hindered.” Sukumar Ray in his book ‘Outlines of Indian Evidence Act’ on page 156 writes that, “An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice or observation; and he must have a special knowledge of the subject.” It is also pointed out by Sukumar pertaining to the object of expert opinion that, “The purpose of expert opinion is two fold. Firstly, to obtain opinion as to the matter of skill or science which is in controversy and Secondly, to exclude the opinion as to the effect of the evidence in establishing controverted facts.”

What’s more, Phipson narrates the role and duty of an expert in his own words in his book on ‘Evidence’ in 14th edition on page 829. He writes that, “An expert is not a witness of fact. His evidence is of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgement by the application of the criteria to the facts proved by the evidence.” No sane person will ever dare to disagree with what Phipson has said. The sole job of an expert is to furnish the judge with the opinion on any matter with the necessary scientific criteria and logical reasoning by virtue of which a judge can after taking into account the opinion so furnished arrive at a rational and independent decision without getting biased in any manner!

It is worth noting here that Lawson defines expert in his book on ‘Expert Testimony’ in 2nd edition on page 229 as: “An expert is a person who has special knowledge and skill in a particular calling to which the inquiry relates.” The basic parameter of deciding the competency of an expert as put by Lord Rusell in US Shipping Board v Ship “St Albans”, 1931 PC 189 is this: “Is he peritus Is he skilled? Has he adequate knowledge?” Let me tell my readers here that ‘peritus virtute official’ means the holder of some official position which requires and, therefore, presumes a knowledge of that law. Cross in his book on ‘Evidence’ on page 322 writes that, “The courts have been accustomed to act on the opinion of experts from early time.” Thus, the value of experts in enabling the court to determine the right conclusion in any given case especially where the case hinges on the expertise opinion cannot be overstated.

There can be no gainsaying that the Apex Court in Bal Krishna Das Agrawal v Radha Devi, AIR 1989 SC 1966 points out that an ‘expert’ was defined as “a person who by his training and experience has acquired the ability to express an opinion” but an ordinary witness does not possess this quality. In Ramesh Chandra Agrawal v Regency Hospital Ltd (2009) 9 SCC 709 , it was held by the Supreme Court that, “The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialised and perhaps even esoteric, the central role of an expert cannot be disputed. The other requirements for the admissibility of expert evidence are :

1. that the expert must be within a recognised field of expertise;

2. that the evidence must be based on reliable principles, and

3. that the expert must be qualified in that discipline.”

It was also held in this very case that, “The opinion of an expert may not have any binding effect on the court. The court does not become functus officio because of an expert opinion. It is not the province of the expert to act as judge or jury.”

Needless to say, it is not always that the expert evidence is imperative. There have been many such instances where the expert evidence has been dispensed with as it was felt that the evidence of an ordinary witness is sufficient. As for instance, in Rajinder Bajaj v Indian Tanning Industries, AIR 2008 Delhi 62 (D.B.), where glaring discrepancies were visible even to the naked eye in the admitted signature and disputed signature, the Delhi High Court said that the reference to a handwriting expert in such a case was not necessary. Also, there are many such cases where the courts have held that absence of an expert report is not fatal to the prosecution case. As for instance, in Vineet Kumar Chauhan v State of UP, AIR 2008 SC 780, the Supreme Court has held that where fire-arms are used in a crime, the absence of the report of a ballistic report is not always fatal to the prosecution case.

Let me clarify here that experts evidence in no manner helps the court in interpretation of the law and is only an opinion evidence and it is entirely within the discretion of the court whether to accept it or not. In fact, in Forest Range Officer v P Mohammed Ali, AIR 1994 SC 120, it was held by the Supreme Court that, “Expert opinion is only opinion evidence and is not helpful to the Court in interpretation of the law.” Let me point out here that in another case – Fakhruddin v State of MP, AIR 1967 SC 1326, it was held by the Apex Court that, “Both under this Section and Section 47 the evidence is of an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon.”

Needless to state, it thus becomes ostensibly clear that the courts must not believe unflinchingly in experts evidence and before accepting it must satisfy itself completely about whether it is worth to be acted upon or not. The guiding principle for courts who have to deal with experts opinion have been aptly summed up by Supreme Court in Dayal Singh v State of Uttaranchal, AIR 2012 SC 3046 wherein it held that, “The expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence. The purpose of expert testimony is to provide the court with useful, relevant information. The purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion. Such report is not binding upon the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not.” In Kanchan Singh v State of Gujarat, AIR 1979 SC 1011, it was held that credibility and competence of an expert are material questions. Where the High Court did not believe an expert the Supreme Court did not interfere.

Let me reveal here that the expert evidence which is rendered as opinion of the third person is admissible under Sections 45 to 51 of the Evidence Act. Under these provisions a third person even though he/she is unknown to the facts of a particular case is called upon by the court wherever and whenever it feels imperative to seek such opinion on a particular point on which the expert by virtue of expertise on that point is best suited to give an independent, unbiased and logical opinion by virtue of which the court can also rely on it and give a sound and logical judgment based on it. It is however solely the discretion of the court on whether to accept the opinion rendered by expert or reject it and the opinion rendered by expert is not binding on it.

Let me also reveal here that the expert opinion is a very weak type of evidence and is usually advisory in character. It also cannot be glossed over that the Courts generally refrain from passing an order of conviction solely on the basis of expert evidence because they are not conclusive and may be biased in favour of the party who calls him. As for instance, it was held in Gulzar Ali v State of Himachal Pradesh, (1998) 2 SCC 192 that, “It must be borne in mind that an expert witness , however impartial, he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him.” Moreover, let us not be oblivious of the palpable fact that a witness who is remunerated always has an unconscious bias in favour of the party who called him even though he may not be tutored. Also, it cannot be lost on us why Wellman had very candidly remarked that, “Expert witness become so warped in their judgement by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of expressing candid opinion.”

It is worth paying attention here that Charles Hollander in his book on “Documentary Evidence” in 8th edition in para 21-23 has quoted the observation of Cresswell in the Ikarian Reefer’s Case (1993) 2 Lloyd’s Rep 68(81) to highlight what all precautions an expert witness should take so that it remains unblemished and appears reliable for courts to fall back upon while pronouncing judgment and these are as follows : –

1. “Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considered that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6. If after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports….”

Let me tell for my esteemed readers exclusive benefit that while it is true that in many cases the courts have refrained from convicting a person solely on the basis of expert evidence or opinion but what cannot be denied is that it has also accepted expert opinion many times. As for instance, in Murrarilal v State of MP, AIR 1980 SC 531, it was held by Apex Court that the opinion of finger print expert is of higher value in comparison to the opinion of handwriting expert because science of identification of finger print is so perfect and therefore the rise of an incorrect opinion is practically nonest. In Jaspal Singh v State of Punjab, AIR 1979 SC 1708, it was held by the Supreme Court that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. So, the opinion of an expert regarding identification of thumb impression is relevant within the meaning of Section 45 of the Indian Evidence Act. Also, in Kanbikarsar Yadab v State of Gujarat, AIR 1966 SC 821, it was held by the Supreme Court that opinion of hair expert is admissible in evidence because by the microscopic examination of the hair it is possible to say whether they are the same or of different colours or sizes and from the examination it may help in deciding where the hairs come from.

We must also bear in mind that there have been many such cases where when there is any inconsistency and the direct evidence is not satisfactory, the evidence has been corroborated by that of expert in a particular field. As for instance, in Gurucharan Singh v State of Punjab, AIR 1963 SC 340, it was held by the Supreme Court that where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or oral evidence can be corroborated by the evidence of a ballistic expert.

It is worth noting that there have been many cases where opinion of expert have been relied upon when corroborated by circumstantial or other evidence. As for instance, in Lall Chand v State of Punjab, 2010 CrLJ 699, it was held by the Supreme Court that opinion of a handwriting expert can be relied upon when due corroboration of such opinion through ocular and circumstantial evidence is provided. In yet another case – Shashi Kumar v Subodh Kumar, AIR 1964 SC 529, it was held by Apex Court that, “Expert opinion is opinion evidence and it cannot take the place of substantive evidence . It is a rule of procedure that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence.”

All said and done, it can be said with considerable certainty that the role of experts in shaping the opinion of the courts cannot be undermined as they form an inescapable opinion even though they cannot be always relied on unflinchingly and this is more true in case of handwriting experts which I have already discussed above in considerable detail. But at the same time we have also seen that on many occasions the courts have not refrained from basing their conviction on expert evidence as in the case of fingerprint expert. So it all varies from case to case but it must be underscored here that no court will ever take the risk of completely undermining the evidence of expert and whatever opinion is given by them in front of court is always taken with full seriousness and very rightly so!

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No ‘honour’ in killing the young & innocent: Fighting a long, arduous battle

‘Religion’ and ‘culture’ cannot and must not be used as excuses for murdering women, because religion and its rules are always a subjective interpretation. No ‘culture’ has the right, based on their sense of morality or integrity, to murder or mistreat women. Unfettered faith does not imply free killing and activist laws are thus the only remedy to such dishonest activities.

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The so-called ‘honour crimes’ are acts of violence, typically killings, perpetrated by members of the family against women who have brought the family into supposed ‘disgrace’. A woman may be targeted by (persons in her own family) for a number of reasons, including: refusal to enter an arranged marriage, being the victim of sexual assault, seeking divorce even from an abusive spouse or in cases of adultery. The mere notion that a woman has acted in a manner that “dissonates” her family is enough to assault her life. Our nation was extremely selective of the kind of development it underwent. At the world level with the nuclear agreement, 8% growth rates, and India’s acknowledgment of its position, it appears that ‘India shines.’ But delving deeper into this growing country’s dark secrets, we still discover widespread murder of young couples by their family members in order to preserve their ‘honor’ because of the couple’s differential social status.

The “traditional” khap panchayat claims that marriage between individuals of the same village is deemed incestuous since they are considered siblings, and thus these weddings are not ethical. The panchayat thus orders the assassination of the couple and hangs their bodies at the village crossing as an example to other prospective couples. Two adults are allowed to marry and, according to the Chief Justice of India Dipak Misra, speaking out against honor murders in India,

“No third person” may harass or injure them. Women are regarded as property and the vessel of family honor in India, with its patriarchal culture. And any conduct that may block the prestige of the family gives the male members an unequivocal right to kill the girl, ‘correct’ their mistakes and gain back the honor.

JUDICIAL PRECEDENT IN HOMICIDE, ‘HONOUR KILLING’

Honor killings, as defined by the Human Rights Watch, are “acts of violence, usually murder, perpetrated by male family members against female family members who are perceived to have brought dishonour to the family by being romantically involved with or choosing to marry men outside their caste, class, or religion.” Frequently camouflaged and reported as suicides by relatives, women account for over 97 percent of honour killing victims in India itself, because “the regime of honour is not able to forgive a woman on whom suspicion has fallen” and remove the stain on their honour by attacking the woman.” Often named as homicide, Honour killing is a heinous crime and a greater evil, homicides may affect public interest whereas the offence of Honour killing shakes public conscience. The lack of a specific law to deal with these particular crimes, in which ‘honour’ is the common motive, results in them being reported under myriad laws, making them nearly impossible to track. These crimes against honour being grossly violative of the constitution, attract the violation of various enactments like-

• The Indian Majority Act, 1875

• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

• The Protection of Women from Domestic Violence Act, 2005

• The Indian Evidence Act, 1872

• The Special Marriage Act of 1954 and

• The Indian Penal Code, 1860

In spite of being violative of the law on so many levels, honor killings are notoriously underreported – not by the media, but by the State. The institutional reluctance to enact specific laws, fearing a sway on political outcomes, results in a convenient scapegoat and the resulting underestimation.

To discover a remedy for such atrocities, it must be investigated from the very heart. The fundamental foundation of such a marital taboo in the same “gotra” is that it’s considered incest. The 1954 Hindu Marriage Act prohibits the marriage of sapindas, individuals falling in the third generation of the mother and the fifth generation of the father. In addition, marriage between specific ‘degrees of forbidden connections,’ including between sisters and brothers, is also prohibited. The law thus sets out the components for a legal marriage and excludes marriage between close family members.

THE HONOUR AND TRADITION BILL: POSITION IN 21ST CENTURY

Although the state action against this crime has been active, most of the state reforms have died in latency. The Prevention of Crimes in the Name of Honour and Tradition Bill, 2010, was introduced in Parliament, however it never progressed from its embryonic stage. On August 2010, the Supreme Court imposed the capital punishment in the case of U.P. v. Krishna Master & Ors to three defendants in the event of the ‘honour’ killing of six people in a district of Uttar Pradesh in 1991. The Divisional bench of Justices, H.S. Bedi and J.M. Panchal overturned the judgement of acquittal issued by the High Court of Allahabad after which, death penalty was handed over to them by the court. The Bench upheld the decision of the trial court and stated that: “murdering six people and squandering nearly the whole family on the weak basis for preserving the family’s honour would be one of the most unusual instances” As a condemnation of the crime,in the case of Lata Singh Vs State of Uttar Pradesh and others, a single Judge bench of the Supreme Court headed by Justice Markandey Katju had said, ‘’Honour killings are nothing but barbaric cold blooded slaughter and no honour is involved in such killings.’’ Thus, the stance of the judiciary, executive and the legislature on such cases, analyzed with the help of judicial precedents and other codified laws, hold such practices unacceptable. Honor killings violate various provisions and there exist distinct legislation and punishments against this, however each of these sections offer certain exceptions, and aren’t cut out for adept dealing of these crimes. For example: the Indian Evidence Act puts the burden of proof on the victims, this makes most of the crimes go unreported, as the victims don’t live to testify. A suggestive reform would be to amend it to place the burden of proof on the accused, however amending each of the provisions to meet the demands of penalizing this crime would be a futile exercise. The IPC, offers an exception for homicides, triggered by sudden provocation and honor crimes, done by family members through brutal, clever planning mostly hidden behind this. Thus is the requirement for a distinct law so that no innocent voice is stifled in demand of justice.

THE INDIAN STANCE: STILL FOGGY?

The government steadily took steps to prohibit honour killing by the time various laws were modified. We end our piece by referring to the most distinguished example given by the then Chief Justice Dipak Misra, who made a substantial improvement in the case of Shakti Vahini against the Union of India in 2018, one of the most significant cases and judgement by declaring that “liberty, using the word in its practical connotation includes right to choose.” Feudal thought must dissolve into darkness and provide the pleasant path towards freedom. The right to freedom must be kept constantly and fiercely to blossom with power and splendor. Rajasthan Government has adopted strict measures and changes by adopting a new bill on the prohibition against interference in the freedom of matrimonial alliances in the name of honour and tradition in 2019. ‘Religion’ and ‘culture’ cannot and must not be used as excuses for murdering women, because religion and its rules are always a subjective interpretation. No ‘culture’ has the right, based on their sense of morality or integrity, to murder or mistreat women. Unfettered faith does not imply free killing and activist laws are thus the only remedy to such dishonest activities.

The remedy to this problem is largely to eradicate the myths in people’s thoughts. They need to be informed about the requirements of the Hindu Marriage Act and what types of weddings are truly invalid. Given the difference in the idea of Gotras and Sapindas, they should be clarified.

‘Honour killings’ violate various provisions and there exist distinct legislation and punishments against this, however each of these sections offers certain exceptions, and isn’t cut out for adept dealing of these crimes. For example, the Indian Evidence Act puts the burden of proof on the victims, this makes most of the crimes go unreported, as the victims don’t live to testify. A suggestive reform would be to amend it to place the burden of proof on the accused, however amending each of the provisions to meet the demands of penalising this crime would be a futile exercise.

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Sexual violence and victim’s story: Believed or blamed?

Aprajita Singh

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Introduction : “Violence is defined as the use of physical force against another person with a high likelihood of resulting in murder, injury, psychological harm, or other undesirable consequences. Furthermore, it is the intentional or probable intentional use of physical force against oneself, another person, or a group that results in or is likely to result in damage, death, psychological harm, poor development, or deprivation. Physical, sexual, or psychological violence, as well as acts of deprivation or carelessness, are all examples of violence. Sexual violence is without a doubt one of the most deadly forms of violence. Physical or sexual abuse by an intimate partner or another criminal is a threat to women all over the globe. Medical injuries, deterioration in mental health, and particular chronic physical illnesses may all result from sexual assault and IPV. In rare instances, such acts of aggression may result in the victim’s handicap or death. Sexual violence occurs in all cultures throughout the globe, but it is defined differently. Physically forcing another person to have sexual intercourse without their permission, having sexual intercourse out of fear of the partner, and/or being forced to perform a sexual act considered degrading are all examples of sexual assault. Although both men and women are victims of sexual assault, women are more likely to be victims, and the offenders are usually male and known to the victim. Because sexual assault is a frequently underreported occurrence, statistics are unlikely to reflect the actual scope of the issue. The data that is accessible is sparse and scattered. For example, police data is often inadequate and restricted. On the other side, data from medico-legal clinics may be skewed toward more violent cases of sexual abuse. Furthermore, the percentage of individuals who seek medical help for acute issues linked to sexual assault is minimal. Shame and humiliation, fear of not being believed, fear of the perpetrator of the crime, fear of the legal procedure, or scepticism that the police would be able to assist them are all reasons for not reporting. Due to severe humiliation and worries about other people’s views, their masculinity, and the fact that they were powerless to prevent the attack, males are much more hesitant to disclose sexual violence. As a result, data on the prevalence of sexual assault against men is particularly scarce. Sexual abuse of children is also frequently unreported. The majority of the information comes from individuals who were asked about their previous experiences.”

Bombay High Court : Sexual violence knows no boundaries, it occurs in every country, across all parts of society, Bharati Dangre, J., while noting a case of sexual harassment caused to a child aged 17 years due to which she took the step of ending her life, rejected the bail of the accused.

THE REASONS FOR THE RISE IN SEXUAL VIOLENCE INCIDENTS IN INDIA ARE AS FOLLOWS

• One of the reasons for India’s sexual violence problem could be the lack of female cops. When a woman is raped, she is more likely to report it to a female cop. In the past, just 7% of female police officers had worked in New Delhi. In fact, there is only one female station house officer in each of Delhi’s 161 district police stations.

• In Indian society, improper dress is blamed for the victim’s situation. This was demonstrated in an Indian judge survey, in which 68 percent of respondents agreed with the same premise. It’s a harsh reality, but it’s also the truth.

• Domestic violence is seen as deserving in Indian society. According to UNICEF, 57 percent of Indian boys and 53 percent of Indian girls believe that beating a wife is justifiable in one of their reports.

• No public safety- In most Indian societies, women who drink, smoke, or go late-night partying are considered as immoral and are the cause of rape. Women in India are obviously not safe in public areas if the general populace believes and accepts this kind of justification for rape. Victims of rape are discouraged from compromising because no family in Indian society is willing to accept that a member of their family has been raped. As a result, victims are frequently advised to avoid the chaos that follows rape in the police station.

• The majority of rapes in India are not even recorded. Despite the fact that laws are being drafted to protect rape victims and provide them with legal rights, there is still a problem with the laws’ execution.

WHAT OBSTACLES DO SURVIVORS OF SEXUAL ABUSE IN INDIA FACE IN GETTING JUSTICE?

Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors, published in 2021, revealed that rape laws are still poorly implemented, and survivors, particularly those from vulnerable populations based on caste, class, or ethnicity, face numerous barriers to justice, including: Corruption among law enforcement officials, the failure of the police to register cases of sexual violence, the continued use of the two-finger test, difficulties in obtaining support services for survivors, such as compensation and victim and witness protection, pressure from families, community, and panchayat members to enter into extra-legal settlements, and many other issues. Control and patriarchy, as well as masculine entitlement, are at the heart of sexual assault. In India, society still frequently places blame on survivors, forcing survivors and their families to remain silent. This is especially true for people who are already on the margins of Indian society, making them particularly vulnerable to sexual abuse. The culture of shame follows survivors into law enforcement, the legal system, and hospitals, silencing their voices even more. 2021 report, Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors, you can learn more about the legal and other barriers to justice for survivors in India.

BACKGROUND

A young girl aged 17 years jumped from the balcony of a flat and succumbed to injuries.

After a span of 96 days of the said incident, mother of the girl lodged a complaint against the applicant attributing to him that he had abetted a commission of suicide by her daughter on a fateful day.

Mother of the deceased got to know through the friend of her daughter that she had been receiving dirty messages from the applicant. On enquiring the same, daughter also showed her mobile phone which had the messages and a folder in the gallery, right after that the deceased barged out of the room. On inspecting, the screenshots were found in the mobile phone and immediately, by keeping mobile on the bed, the informant followed her daughter, who by that time, jumped from the gallery of another bedroom. On realizing the severity of the shocking incident, the informant became unconscious and she was informed that her daughter was taken to the hospital. The informant recollected that in the hospital, her daughter was little conscious and on being inquired as to why she took the extreme step, she murmured that it was because of “Gaurav uncle”. She did not utter anything further and was administered treatment in the hospital. A Chit which was found on the dressing table of the daughter was also given to police and then the CR was registered invoking Sections 306, 354A, 354-B of Penal Code, 1860 and Section 4 and 8 of the POCSO Act.

FOLLOWING WAS WRITTEN ON THE CHIT

“Mummy, I have not told you about one person, Gaurav Uncle in our house. For no reason, he often came close to me and attempted to touch my private parts. I concealed the same from you, but that was my mistake. I kept mum because I thought if I disclose it to you, it would result in quibble. However, he messaged me. Before one week ago, he was talking to me about bad things. The screen shots of the said message are stored in my mobile in the folder ‘SS’. On receipt of the message, I blocked him, but yesterday night, he texted me. I was unable to understand what I should do and how I should disclose it. After you come to know about this, please do not quarrel and let the things continue to remain as they are. You and Papa should not fight. Bye, Take care. Because even if I blocked him on the mobile, I will have to face him some day. I carry no feelings for him in my mind, still he said so and further Kaki narrating it to aunt and no matter how much I tolerate, I will be blamed”

ANALYSIS, LAW AND DECISION

Bench noted that the deceased was a young girl who was hesitant to disclose the ill-intentions of the applicant, who was her own uncle.

The present matter revolved around an intimate relationship of the deceased with her own uncle, which posed a barrier for the victim girl to report the said incident to anyone in the family, but she chose to disclose it to her close friend. The chit which was scribed by the deceased referred to a message and screenshots of which were found in the mobile phone. From the screenshots, it was evident that a message was forwarded by the applicant which was responded to by the deceased by typing that she was not interested in talking to him. The unhappy tone was set and in the note which was scribed, the deceased had opened her mind to her mother where she spoke about his ill-deeds and also offered an explanation as to why she concealed it from her mother.

Court noted that the deceased had expressed her helplessness since she was apprehensive that even if she had blocked him, she would have to face him again and take the blame though she had no feeling in her mind. “screen shots from the mobile make it apparent that the applicant was harassing the deceased and in spite of her strong protest, was seeking something from her, leaving her in a despondent state.”

“The offence of abetment by instigation depends upon the intention of the person who abet and not upon the act which is done by the person who was abetted.”

“Abetment as contemplated under Section 107 of the IPC, may be by instigation, conspiracy or intentional aid and the words uttered in feet of anger or omission without any intention being attributed cannot be termed as instigation.”

The High Court stated that the young girl felt cornered by the conduct and demeanor of her own uncle, which was unexpected since she held him on a high pedestal as her own father and was unable to vent her anguish on account of the close proximity of the family with that of the applicant.

DECEASED SUFFERED THE CONSEQUENCES MUTELY FOR A YEAR

While concluding the matter, Court made certain significant observations that, a child may be subjected to sexual abuse or exploitation at home too.

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in the company of the child can identify signs of abuse and make sure children receive care and protection. In the present matter, the fear of stigma, not being believed and being blamed, found the deceased in a precarious situation and left her isolated and insecure and which persuaded her to end her life. In view of the above stated discussion, the accused does not deserve liberty and another reason would be his close proximity with the family of the deceased and there would be every likelihood that on release he may pressurize them. [Gaurav v. State of Maharashtra, Criminal Bail]

CONCLUSION

Every year worldwide, many drive it, social, cultural, and economic contexts. Sexual violence has a core inequality between men and women. Interventions for resource-poor to objectively examine programmes in both developed and emerging nations. Professionals in the health care assisting sex assault victims medically and psychologically – and gathering help prosecutors. The health- abler in places where case-management protocols and guidelines collecting evidence with well-trained workers and where there is good co-operation legal system Finally, the firm commitment government and civil society involvement, as well as a coordinated response throughout to end sexual violence. In many nations, data on sexuality there is a tremendous need everywhere for sexual research violence.

To sum up, sexual violence undermines peace and security. It prevents women and children from engaging in post-conflict reconstruction and reconciliation activities. It is a tool of war that may become a way of life, long after the bullets have fallen silent. Violence costs many women their health, livelihood, spouses, families, and social networks. This can undermine the transfer of communal values to subsequent generations. Rape-addicted children can develop into rape-addicted adults. Every year, millions of people are victimised by sexual violence. Interventions are also vital. These are the essential ones. concern main sexual violence prevention, interventions for both men and women strategies to help sexual assault victims to encourage rape perpetrators to be caught and punished, and changing social norms and elevating women.

Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors, published in 2021, revealed that rape laws are still poorly implemented, and survivors, particularly those from vulnerable populations based on caste, class, or ethnicity, face numerous barriers to justice, including corruption among law-enforcement officials, the failure of the police to register cases of sexual violence, the continued use of the two-finger test, difficulties in obtaining support services for survivors, such as compensation and victim and witness protection, pressure from families, community, and panchayat members to enter into extra-legal settlements, and many other issues. Control and patriarchy, as well as masculine entitlement, are at the heart of sexual assault. In India, society still frequently places blame on survivors, forcing survivors and their families to remain silent.

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REFORMATION IN INDIA’S PUNISHMENT AND SENTENCING POLICY: A SINE QUA NON

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“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery system, but in our country, it is the weakest part of the administration of criminal justice.”

– Soman v. State of Kerala

The above mentioned lines are very well depicting the significance of awarding proportionate punishments in the domain of criminal justice system. At the same instance, it is showing its current situation. Nowadays, the problem that is underlying in the criminal law is that the very purpose of punishment is not being fulfilled. Most often, Punishment is considered as the stage where all functionaries as defined by the Criminal Procedure Code, 1973 (2 of 1974) as well as the victim and the convict acquired the central position. It serves as a link between the criminal justice system and the society as “Justice must not only be done, but must also be seen to be done”. Punishments play a guiding role in avoiding harm to our society, in proper implementation of morals and values and in attaining a peaceful society.

This is not something that is recently developed. From ancient times, the concept of punishing the person who breaches the rules and regulations were in existence. Since then, this mechanism was used in order to regulate the social order and maintain harmony and peace in the society. Back then, the provisions of punishment and sentences were more stringent so as to set the example, giving it the deterrence effect. With the change in the perspective of the society and development, this notion of punishment became rational and tilted more towards the concept of reforming the convict rather than deterring them. Punishments can be divided into various types such as deterrent, rehabilitative, restorative and retributive. The purpose of each type of punishment is different but the ultimate goal is same, that is, to safeguard the society. All this will become crystal clear when in the initial section of this article, we will carefully analyze the meaning of sentence and punishment and policies, thereof, prevalent in India. This will pave the way for the discussion of major challenges faced by current sentencing policy and the need for well-defined sentencing policy as in England, Whales and America. The concluding section of this write-up will talk about the measures enshrined by the legislature, the judiciary and the committees also focusing upon their suggestions.

PUNISHMENT & SENTENCING: MEANING

Punishment and Sentencing, though, two distinct entities but at the end, they both form the union. Most often, they are used interchangeably which lead to contradictions and confusions. That’s why, here, it becomes essential to know what exactly punishment and sentencing constitutes and how they differ from each other.

According to Britannica“Punishment is the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the transgression of a law or command). Punishment may take different forms ranging from capital punishment, forced labour, flogging, imprisonment and fines.”

Macmillan Dictionary defines the term Sentencing as “an occasion when someone who has been found guilty in a court of law is told what their punishment will be.”

In general parlance, ‘Punishment’ is a method which is legally approved to control the task of crime. ‘Sentences’ are statements contained in the judgments which lay out the punishments for a particular offence according to the law. And, when the sentences get operationalized, it is known as ‘punishment’. The term ‘Punishment’ can be considered as the way of not only penalizing the one who commits any guilt but also a process to prevent the offender repeating further commission of heinous crimes. Thus, it can be rightly said that both sentences and punishments are closely interlinked, where former one is said to be the predecessor in order to actually inflicting the latter one.

SENTENCING AND PUNISHMENT POLICY: FRAMEWORK

Every country has a different set up of criminal justice system. Some are more focused towards harsh punishment that should be inflicted to the perpetrators of the crime where as some nations are concerned about rehabilitating or reforming the convict. Some nations are more concerned about the victims whereas some are concerned about the offenders. However, sentencing and punishing the criminal is most important component of any criminal justice process. For imposing accurate, just and proportionate punishment, a systematic procedure is something must that should be formulated. This structured process adopted by a specific country commonly known as ‘sentencing policy’. The sentencing policy is the culmination of many things like it contains the formula in order to calculate the right or appropriate punishment for a particular offence. Also, it reflects certain principles and other factors which must be taken into account by the court while deciding punishment. Thus, the prime objective of the justice system of any nation is to adopt a fixed regime of sentencing policy which, in turn, regulates all the inhumane activities happening in the society.

Indian justice system stick towards the reformative approach of giving punishment where primary aim of law is to promote rehabilitation, re-educate and reshape the personality of the criminal. Despite of such an inspiring approach, still, there exists no strict set of guidelines for regulating the sentencing policy in India. This is considered as a major lacuna, which not only hampers the basic purpose of criminal justice delivery system but also give rise to numerous violations of various fundamental and human rights. As said by the prominent judge D.P. Wadhva J, “Reformative theory is certainly important but too much stress to my mind cannot be laid down on it that the basic tenets of punishment altogether vanish.” However, the main legislations in India governing the sentencing and punishment system as well as criminal law are The Indian Penal Code, 1860 (IPC), The Indian EvidenceAct, 1872,The Code of Criminal Procedure, 1973 (CrPC),Probation of Offenders Act, 1958. Some provisions relating to Indian punishment and sentencing are described below-

Section 53, Chapter III of The Indian Penal Code, 1860 specifically states the different kinds of punishments which can be given by the Criminal Court to the offenders liable for various offences. The six mentioned punishments are–

1) Death

2) Imprisonment for life

3) Imprisonment – Rigorous with hard labour or Simple

4) Forfeiture of property

5) Fine

According to the Section 60 of the IPC, it is the discretion on the part of the competent court to decide the description of the sentences to which an offender is punishable. Further, it lays down the following types-

1) Wholly or partly rigorous; or

2) Wholly or partly simple; or

3) Any part to be rigorous and the rest are simple.

Section 235 of CrPC talks about judgment of acquittal or conviction under which it ensures that first accused will have an opportunity of last say then the judge after adjudicating upon relevant mitigating and aggravating factors shall pass sentence on him.

Section 354(1)(b) of the CrPC impose duty on judges to record the reasons for the decision of awarding a particular sentence and clause (3) of the same section states that whenever the conviction is for an offence punishable with life imprisonment or death penalty, special reasons must be recorded for passing such sentence.

SENTENCING POLICY: CHALLENGES AND ISSUES

Prima Facie, the existing sentencing policy does not seem to contain any flaws in it. However, a careful study shows that there are many challenges faced by this unregulated policy of sentencing. Let’s throw some light on the issues faced due to the lack of pronounced sentencing policy in India. The defects can be broadly categorized into following heads –

• Absence of fixed punishment: Under the Indian Criminal Law, the pattern that is prescribed for the punishments of all crimes contains only minimum and maximum penalty for a particular sort of offence. Due to this, a wide gap is generated which majorly affects the administration of sentencing. Exactlywhat sentence should be given from this gap to the offender solely depends on the judge’s discretion. Thus, judge while deciding the cases and awarding the punishments enjoys the latitude of power.

• Discretion of Judge: In India, no doubt several general factors such as severity, liability, guilty mind, etc. must be taken into account by judges while concluding cases. However, final decision is based on the judge’s personal experience, prejudice and considerations. Here, it is not wrong to refer judge as a king because the ultimate discretion lies in his hand only.

• Lack of consistency and faulty rationales: Due to the lack of structured guidelines, many times conflicts and contradictions arises when the courts awards different sentences in cases having almost same circumstances, using different reasoning. This leads to the inconsistency.

• Lack of binding force: While the court from case to case attempt to create a framework to limit discretion of judges and prevent arbitrary award of sentences but the larger bench observed that guidelines mandated by judiciary would go against the intent of legislature. This is the reason why, the apex Court highlighted that guidelines are indicative rather than exhaustive in nature. Therefore, courts have not followed their own sentencing guidelines strictly.

• Immense Disparity and Discrepancy: It has been noticed that in many cases judges imposes the different type of sentence on offenders while being tried under the same offence. This is because of the fact that every judge has their own considerations and reasons to believe whether a particular factor constitutes aggravating or mitigating circumstances for a particular case. Thus, due to the discrepancy and disparity, there exists an imbalance in the criminal justice system which is highly undesirable. As a result of it, offenders spend unnecessary time in prison.

• Indefinite and Scattered procedure: In India, the procedure of criminal law is disintegrated into enormous sections such as CrPC has 484 sections, 2 schedules which in turn contains 56 forms and IPC has more than 500 sections which increase the burden that is already present on the judges due to vast range of pending cases.

• Not defined reliable standards of proof: When it comes to produce sentencing material upon which Court will rely for giving the sentence to the accused still the Courts in India have not well established reliable standards of proof.

• Extracting sentencing material: Indian Courts have placed the whole burden of producing the sentencing material on the parties. If any of the party is not able to produce the sentencing material then the Court without any hesitation take the ex-parte decision. In many instances, the decision is delivered after only considering aggravating factors because of the simple reason that the defence have not produce sentencing material on mitigating circumstances with respect to the accused.

• Ambiguity in the quantum of sentences: In hierarchy of the judicial system, the quantum of sentences entirely changes from up and down. In absence of any proper guidelines, the Trial Court, the High Court and the Supreme Court mostly differ in awarding sentences, thereby causing confusion.

These challenges throw a serious concern on the part of the Indian legislature. This gives a red signal to the Parliament and other authorities to formulate a well-structured sentencing policy to safeguard the rights of the parties involved in a particular case.

NEED FOR STRUCTURED SENTENCING POLICY

From the above presented material, it can rightly be inferred that in India, there lies a huge disparity, inconsistency, arbitrariness and unguided discretionary power when it comes to deciding the punishment and awarding a sentence for a particular offence. It is an undisputable fact that there is a dire need of regulated sentencing policy for curtailing number of lacunas that are already discussed above. There exist the need of well-defined policy for sentencing and punishment even after the completion of the trial while determining the probation period of offenders. Section 360 and section 361 governs the principle of releasing the convicts on the basis of good behaviour and conduct and also states that special reasons must be recorded for the same. Here again, there is noclear-cut definition of ‘good conduct’, it varies from one jail authority to the other and also depends on the circumstances and type of offence committed by the offender. The implementation of the same legislation over two persons resulting in the different consequences despite of having same set of circumstances violates the right to equality defined under article 14 of Indian Constitution. When the person detained in the custody for a longer term than required, it violates another constitutional right. Thus, here, it becomes important to implement the policy which is well regulated, formulated and structured.

COMMITTEES’ REPORTS

Apart from the members of legal fraternity such as lawyers, advocates, judges, activists, various committees also recognized the need for a statutory sentencing policy. On various occasions, several committees have emphasized on the need of well-regulated policy for governing the sentencing and punishment system in India. The committees also stated that punishment should not be harsh rather it must be moderate enough to be effective. The reports of the committees suggest various other aspects which will improve the sentencing and punishment mechanism. In general, committees have pointed out the need to adopt such system that will ensure certainty during the whole process of giving sentences. Let’s briefly take alook on the report published by various committees –

In 2000, the Ministry of Home Affairs established the Committee on Reforms of Criminal Justice System, popularly known as the Malimath Committee for giving recommendations on the prevalent system of criminal justice. In March 2003, Committee issued the report which is of the view that despite of having provisions of maximum and minimum punishment in the Indian Penal Code, the judge enjoys the wide discretion within the statutory limit while inflicting sentences. With regard to selecting the most appropriate sentence, there is no proper guidance provided anywhere for the judges. The members of committee went on to criticize this unguided power and felt the need to minimize it to the some extent by using the law force and authority. Further, the Committee also noticed the fact that not every judge has the same set of mind and attitude while deciding the sentences, for instance, something may be grave for one judge but at the same time may not be as grave for other one. For the depth study of this matter, committee asserted that there is a requirement of an expert committee, which will evaluate the whole concern. This committee consisted of experts pointed out the need for a new code which classify the offences other than the parameters of cognizable and non- cognizable and a policy having the goal of social welfare should be adopted.

The Law Commission of India in its 47th report by reasserting the same states that an appropriate sentence is a culmination of different numerous factors such as the nature and circumstances under which offence is committed; the age, background, mental health, character, education, etc. of the offender; prior criminal record of the offender; prospective of rehabilitation, training or treatment and so forth. Further, the commission recommended for a committee that must be statutory in origin, to lay out the regulation under the Chairmanship of a former judge of Supreme Court or a former Chief Justice of a High Court, whosoever experienced in criminal law and with such other member as necessary. The summary of the report states that there should be a punishment harsher than imprisonment for life but at the same time it must kept in mind that it should be lenient than capital punishment.

Later, the Committee on Draft National Policy on Criminal Justice, popularly known as the Madhava Menon Committee also recognized the need to have a radical change in the law of sentencing. The committee in its report states that there is a need to re-think on the philosophy of sentencing in the criminal justice administration. Equality in every aspects of sentencing must be pursued vigorously. In news report of October 2010, the Law Minister stated that Government of India is in a stage of preparation where it is planning to establish ‘a uniform sentencing policy’ similar to the policy of that USA and UK. However, even after all such recommendations, no effort has been taken towards its creation.

JUDICIAL VIEWS ON SENTENCING POLICY

While the legislature has not given any particular guidelines regarding the sentencing and punishment, the higher Courts from time-to-time have enunciated certain principles regarding this. The Indian Courts, over the period of time, through inconstant and faulty decision making process have indirectly pointed out the need for a sentencing policy. The Courts recognizing the absence of any such regulatedpolicy have provided judicial guidance by setting out certain factors that courts must look into while deciding punishments.

In Soman v. State of Kerala the Court put emphasis on the principles such as proportionality, deterrence and rehabilitation that need to be taken into consideration while giving judgment. Here, proportionality factor also contains the mitigating, aggravating and such other factor. Also,the Court noted that it is not good that our criminal legislation has no legislative or judicially laid down regulations to guide the court trial.

Further, most importantly the court in the State of M.P v. Bablu Natt said that the imposition of the principles laid down in the above case vary from case to case and depend on facts and circumstances of each case.

Moreover, the apex court in the Rajendra Pralhadrao Wasnik v. the State of Maharashtra acknowledge these above mentioned principles but at the same time held that since they are not absolute rules, the judiciary cannot be restrained with them.

In the case of State of Punjab v. Prem Sagar,it was pointed out by Justice S.B. Sinha that our legal system has so far not been able to develop certain principles as regards of sentencing and even the apex Court just made observations to this regard and left the matter untouched whereas other developed countries have done so.

In the famous case of Bachan Singh v. State of Punjab, the Hon’ble Supreme Court apart from the constitutionality of death penalty also addressed on the issue of lack of sentencing guidelines. The majority is of the opinion that it is upon the legislation to standardize the sentencing discretion if it deems fit. However the Court went ahead and formulated the guidelines for imposing death penalty and specifically defining the term ‘special reasons’ in Section 354(3) of CrPC thus set forth the doctrine of ‘rarest of rare case’.

Later, the court in the case of State of Madhya Pradesh v.Mehtab, pointed that there is a development of guidelines by judiciary, but the implementation is so far from reality which raises the major concern regarding the methodology of sentencing in India. Also,it stated that the development of a strict policy would lead to an obstruction of justice. So it is important to have a look on a larger picture which will improve our justice system and a major method through which same can be achieved is the development and implementation of a uniform sentencing policy.

CONCLUSION

Indian criminal justice has no doubt adopted the mechanism of sentencing as a restorative justice. But it is not considered much by the judges. Indian system, depending upon its convenience often fluctuatesbetween the three theories of punishment, namely, deterrence, retributive and reformative. This itself shows that justice system, particularly criminal, is in a state of ambiguity and is also directionless. There is a huge docket explosion in the statistics of the crime rate all over the world and India is no exception. Apart from this, India has also been experiencing an alarming increase in delay and arrears of pending cases. There are many reasons responsible for this problem. One of the major concerns is requirement of a fixed sentencing and punishment policy, a concept on which this whole article is based.

As we have already discussed, in detail, the number of infirmities faced by the current sentencing and punishment policy. There exists an exigency to fix those shortcomings to get an effective policy. There is a need for a policy which strikes balance between the rights of an accused and the rights of the citizens. So this is the high time that legislature must come forward to prepare a road map and take vital steps to draft a systematic and clear policy. While formulating a policy, the legislature should also take aid from the successful policies of various other jurisdictions such as US, UK and embed it in India according to the Indian needs. It is also mandated that this draft must be in the line to the proposals and work done by the Malimath Committee, the Madhava Menon Committee and the Law Commission of India in this regard. It is important to note that legislature cannot do this task in isolation. The judiciary would also play an important role in this exercise by ensuring that discretion power vested with them must be used in the interest of justice and should not be misused.

The criminal law mostly contemplated as an expression of the relationship between the society and its subjects. Therefore, it becomes necessary to revise this law through the principled and guided amendments. As said by Justice Chandrachud, “The need of the hour to mitigate the problem of pendency is to think out of the box”. Thus, policy makers must take immediate steps to counter the problems arising from indefinite punishment and sentencing system so that the people of the nation don’t lose their faith in the judiciary and also judiciary serve justice properly. With the help of this article, an endeavour is made to build a proper legislation for executing just and fair sentence and removing any kind of disparity before, after and during the trial.

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