While displaying zero tolerance for heinous offences like rape, the Delhi High Court as recently as on January 3, 2021 in a commendable, cogent, composed and convincing judgment titled Swatantra Kumar Jayaswal vs State & Anr. in W.P.(CRL.) 1904/2021 has refused to quash an FIR against a government servant containing allegations of rape. It has minced absolutely no words to observe forthrightly that such an FIR cannot be quashed on the basis of settlement between parties and their subsequent marriage as it does not waive off the offence alleged. It has also reiterated that the act of rape is not an act against individual but is an offence against the society.
To start with, this brief, brilliant, bold and balanced judgment via video conferencing authored by a single Judge Bench of Justice Rajnish Bhatnagar of the Delhi High Court sets the ball rolling by first and foremost putting forth in para 1 that, “The present petition has been filed by the petitioner under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 for quashing and cancelling the FIR No. 219/2021 under Section 376/323/506 IPC registered at P.S. Patparganj Industrial Area and all the proceedings thereof.”
While elaborating on the facts of the case, the Bench then envisages in para 2 that, “Briefly stated, the facts of the case are that on 25.06.2021 an information from PCR vide DD No.54A was received at PS Patparganj Industrial Area, wherein it was reported that Complainant was not telling anything about complaint but asking for urgent police assistance. Accordingly, IO SI Moolchand reached the place of incident i.e. ICD Patparganj Custom office and met the complainant, who told that she had a scuffle with her male friend Swatantra (petitioner herein) and he had tried to assault her. The Complainant was brought to PS Patparganj Industrial Area and further enquiry proceedings were marked to WSI Anjali Rana. Initially, the complainant revealed only about the scuffle and was hesitating in disclosing further facts, but later she disclosed regarding act of sexual assault having been committed upon her by accused Swatantra Jaysawal (petitioner herein) in his ICD Patparganj Office at 03.30 pm on 25.06.2021 when she had gone to talk to him regarding their marriage.”
While continuing in the same vein, the Bench then enunciates in para 3 that, “Complainant was taken to LBS Hospital for medical examination, wherein after due process of counselling by NGO, complainant gave history of sexual assault (fingering) by petitioner on 25.06.21 at 02:30 pm. She also gave history of sexual assault in the form of intercourse without her consent by petitioner/accused on 27.12.20 and 06.04.21. In her medical examination, history of molestation was alleged by complainant on 10.12.20 & 12.12.20.”
Furthermore, the Bench then discloses in para 4 that, “After her medical examination, complainant narrated about the incidents that had happened with her and she gave a hand written complaint, wherein she stated that she came in contact with petitioner/accused Swatantra Jaysawal through website Jeevansathi.com. Petitioner/accused requested for the mobile number of complainant as he wanted to talk to her regarding their marriage. Petitioner/accused told her that he was aged about 32 years. He was unmarried and an officer in Customs. He concealed the fact regarding his first love marriage and that his first wife committed suicide for which case was going on in the Court.”
Going ahead, the Bench then hastens to add in para 5 that, “Petitioner/Accused met complainant at Ayodhya and Lucknow on 10.12.20 and 12.12.20 respectively. Complainant told him to meet her parents, but he asked for more time to understand each other. They continued to talk and when complainant asked him to proceed with marriage talks, he called her to Faridabad. On 26.12.2020, petitioner/accused took complainant to Vivanta by Taj’ Hotel in Faridabad and that night petitioner/accused raped her against her will. Petitioner/accused also told complainant that he would marry her in Arya Samaj Mandir, but later on he made excuses that mandir was closed and also told her to return to Ayodhya. Petitioner/accused asked for one month’s time to solemnize marriage, but then he did not pick her phone calls.”
In addition, the Bench then states succinctly in para 6 that, “On 09.02.2021, complainant lodged a complaint with NCW through email and also informed petitioner/accused about this. Petitioner/accused contacted her and asked to withdraw that complaint and not to spoil their relations.”
What’s more, the Bench then mentions in para 7 that, “On 21.03.2021 petitioner/accused reached Bhopal and put vermilion on complainant and said that now they were husband and wife but he did not let her meet his family. In her complaint, the complainant further alleged that on 06.04.2021 also petitioner/accused raped her in car near Haldiram, Akshardham. On 14.04.2021, complainant again lodged a complaint against petitioner/accused in NCW which finally reached Mahila Thana, Faridabad’. On 21.06.2021, petitioner/accused came to that police station and again he made promise to marry complainant and accordingly she withdrew her complaint.”
Not stopping here, the Bench then also lays bare in para 8 that, “It is further alleged by the complainant that on 25.06.2020, when she came to the office of petitioner/accused to talk to him, there petitioner/accused again molested her. She resisted, but petitioner/accused started fingering inside her private parts forcibly. Complainant lodged PCR call but petitioner/accused gave threats of dire consequences to her and ran away from the spot. In view of the above allegations, present FIR was registered against the petitioner/accused for offences U/s 376/323/506 IPC and investigation went underway.”
Most significantly, what forms the cornerstone of this learned judgment is then elaborated upon in para 12 wherein it is held that, “In the present case, the petitioner is a Government Servant, working as Superintendent with Customs & CGST department, Govt. of India, holding a Gazetted post. So being a Government Servant, he is expected to maintain high moral rectitude and decent standard of conduct in his personal/private life and not bring discredit to his service by his misdemeanours. In fact a Government servant has all the more responsibility as far as his conduct is concerned towards the society. Rape not only destroys the personality of the victim but it also scars the mental psyche of the victim which remain embedded on the mind of the victim for years together. The charges of rape are of grave concern and cannot be treated in a casual manner.”
Simply put, the Bench then stipulates in para 13 that, “The issue as to whether the High Courts, while exercising its jurisdiction under Section 482 Cr.P.C, should quash an offence under Section 376 IPC has come for consideration before the Supreme Court in a number of cases. The Supreme Court has, time and again, directed that the High Court should not exercise its jurisdiction under Section 482 Cr.P.C to quash an offence of rape on the ground that the parties have entered into a compromise.”
While citing the relevant case law, the Bench then points out in para 14 that, “In Gian Singh v. State of Punjab & Anr., (2012) 10 SCC 303, the Supreme Court has observed as under:
“61. The position that emerges from the above discussion can be summarized thus : the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. :
(i) to secure the ends of justice, or
(ii) to prevent abuse of the process of any court.
In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society…””
While citing yet another relevant case law, the Bench then states in para 15 that, “In Shimbhu v. State of Haryana, (2014) 13 SCC 318, the Supreme Court has observed as under:
“20. Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the court to exercise the discretionary power under the proviso of Section 376(2) IPC.””
Be it noted, the Bench then envisages in para 16 that, “In State of M.P. v. Madanlal, (2015) 7 SCC 681, the Supreme Court has observed as under:
“18. The aforesaid view was expressed while dealing with the imposition of sentence. We would like to clearly state that in a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are the offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her nonperishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.”
It is worth noting that the Bench then observes in para 17 that, “In State of M.P. v. Laxmi Narayan & Ors., (2019) 5 SCC 688, the Supreme Court has observed as under :
“15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:
15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;”.”
While citing yet another relevant case law, the Bench then lays bare in para 18 that, “In Narinder Singh & Ors. v. State of Punjab & Anr., (2014) 6 SCC 466, the Supreme Court has observed as under:
“29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure
(i) ends of justice, or
(ii) to prevent abuse of the process of any court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.””
Quite remarkably, the Bench then holds in para 19 that, “No doubt, in the present case, both the parties i.e. petitioner and respondent No. 2 have compromised the matter amicably and respondent No. 2 has also filed an affidavit on record dated 10.08.2021 stating therein that she and the petitioner have married each other and she has no objection if the present FIR bearing No. 219/2021 is quashed as she does not wish to pursue any proceedings in FIR No. 219/2021. But by simply entering into a compromise, charges cannot be said to have been mitigated or that the allegations leveled by the respondent No. 2 regarding the alleged offence lost its gravity by any means. Act of rape is not an act against individual but this is an offence against the society. As per the Status Report filed by the State and argued by the Ld. ASC, the statement of the respondent No. 2 (complainant) was recorded U/s 164 Cr.P.C in which respondent No. 2 has corroborated the allegations leveled by her in the FIR.”
As a corollary, the Bench then holds in para 20 that, “In view of the settled position enumerated in Gian Singh’s case (supra) and other cases referred to hereinabove, the criminal proceedings emanating from FIR No. 219/2021 registered at Police Station Patparganj Industrial Area, with the allegations of rape cannot be quashed in exercise of powers vested in this Court under Section 482 Cr.P.C. on the basis of settlement between the complainant (Respondent No. 2) and the petitioner and their subsequent marriage as the same does not waive off the offence as alleged by the complainant against the petitioner.”
Finally, the Bench then concludes by holding in para 21 that, “The petition is dismissed.”
In conclusion, the long and short of this notable judgment is that there can be no compromise of any kind in cases of heinous offences like rape. If compromise is allowed in such cases then it would be very easy for offenders to intimidate and compel women to enter into a compromise and get away easily even after committing crime of the worst kind thus making a complete mockery of the “rule of law”! This is exactly what is completely unacceptable to the Delhi High Court as we see in this leading case also and it has cited some most relevant leading judgments also of the Apex Court as already discussed hereinabove to substantiate what it held so forthrightly!
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Cyber world: Advantages and its emerging threats
In this modern era of globalization whole world gets connected through digitalization. Growing global economy and Innovation in Science and Technology lead to promote digitalization in our daily life. According to data of the Department of Promotion of Industry and Internal Trade states that approximately 50,000 Startups grow up in India every fiscal year. Every start-up has a base of Innovation and Technology. The companies and Commerce industry promotes digitalization in businesses because of its leads to optimum use of resources and less time and energy consumption. In this modern era, any sector of businesses cannot survive in a competitive world without their business website of them. Our education system transferred into digital space amid the Covid-19 Pandemic. Online Classes and online learning take place of Traditional Teaching techniques of the education system. Digitalization of the education system leads to increase efficiency in the learning process and decreases the cost of seeking education which may benefit the weaker section of society.
Cyber Security is becoming an important concern in every country of the world. In this era of globalization without strong cyber security, we cannot survive in global competition. Every nation of this world put forward its steps to make a strong Nation because of cyber security. Making Cyber Attacks on high-profile agencies of the enemy nation such tactics usually used by the dominant nation for making pressure on the Enemy nation by stealing highly sensitive data of this nation. The cyber cold war is an emerging threat to the world. We are required to come forward together to make Treaty on Cyber Security Issues. We are required to make a Universal Code of Conduct for Cyber Security Issues which will be followed by every united nation. For example, like United Nations made Treaty for International Peace between Nations by restraining them to make Arms in high capacity and restraining them to promote Nuclear Programme in high frequency.
CONTEMPORARY ISSUES OF CYBER WORLD
THREAT TO PRIVACY:
The government of India consistently decides the involvement of technology in public policies. The government has passed Aadhaar Act in the year 2016 which was made mandatory for every citizen of India to link his Aadhaar Card to other Important Identity documents. Government makes Aadhar Card as a Proof of Identity for every citizen of India. Making it mandatory for every citizen of India to link his Aadhaar Card to Pan Card may cause losing personal data by government machinery. The government of India may use these data for undue advantage of them. In many incidents, Leakage and stealing of data happens which may affect on the privacy of citizens of India. Right to Privacy is a Fundamental Right of Citizen of India which is enshrined in Article 21 of the constitution of India which is violated by government authorities. In the landmark Case of K.S. Puttaswamy versus Union of India (10 AIR SCC 2017) the honourable Supreme Court of India states that the Right to Privacy is an essential fundamental right of every citizen of India.
CYBER FRAUDS AND SIDE EFFECTS OF DIGITALISATION
Cyber Security is an important concern emerging in our society. Many fraud companies conceal the data of customers by using tactics of misleading Advertisements. Digitization has a proven impact on reducing unemployment, improving quality of life, and boosting citizens’ access to public services but its side effects are data theft of customers, Breaching of Copyright of Companies, Plagiarism in social media websites, Social disconnectivity.
According to data from the National, Crime Records Bureau states that 50,030 cybercrime cases were reported in the year 2020-21 in India. Cyber Fraud is the key motive and intent in 30,218 cases recorded in frauds. In India, more than 2200 cyber-attacks are committed per day, whereas cyber security is the biggest concern that emerges in society.
Increases in the number of cyber-attacks result in government increased budget and attention on cyber security. The First Cyber Attack occurred in the late 1970s but over time nature of cyber-attack changed. Phishing, data breach, cyber extortion, Identity Theft, Harassment are types of Cyber Crimes. Increasing digitalization leads to excessive use of Technology which may affect on Mental Health of People. The development of the Mind is depending on the growth of Mental Health which might be diminished due to excessive use of technology, social media by Youngsters and Adults.
CYBER WAR AND TERRORISM
In the era of digitalization, we are going to become Technology Savy but the increasing number of International Cyber Attacks cause cyberwar between two nations which is harmful to International Peace. Cyber War and Cyber Terrorism are both terms interlinked with each other. Cyber Terrorism A criminal act perpetrated by using computers and Telecommunication Capabilities resulting in violence and destruction and disruption of the Services of an enemy nation by creating fear within the Population.
The government made provision in the Information Technology Act, 2000 under Section 66 F about committing the offense of Cyber Terrorism will be Punishable by Imprisonment to Life. A recent example of cyber terrorism is Pegasus Spyware which deals with collecting personal data of High-Profile Personalities, Politicians, Supreme and High Court Judges, Military Personnel of India. Perpetrators Intention behind that is tracing personal chats and other sensitive Information of that Personalities. They used such Information for Undue Advantages.
E-GOVERNANCE AND INCLUSIVENESS OF PUBLIC
E-Governance is Important for maintaining Transparency and Accountancy in Government. Politicians are Representatives of Common People and Public Servants are the strongest pillars of Administration. They are Responsible for Citizens of India because they are elected by the Peoples of India. Promoting digitalization in government policies and Promoting E-Governance in Administration will be effected on Accountability of Government.
E-Governance gives access to common people to encourage them to participate in the decision-making process. Common People can raise questions regarding the incompetency of government. The public can access grievance redressal machinery to resolve issues that arise due to the Incompetency of the government. Inclusiveness of the Public leads to strengthening democracy in Nation.
EASE OF DOING AND PROMOTE INNOVATION
Increasing use of Technology and Internet businesses leads to ease of doing for Promoters. Process of Registration of Companies to promoting businesses on the Internet all these things are included in Ease of doing of businesses. Every Startup Included Innovation and Technology hence cyber security concerns arise for such businesses. Many times, businesses are suffered due to poor cyber security which may affect on businesses of them. Examples like the stealing of sensitive data of the Company.
LEGISLATIVE FRAMEWORK OF CYBER LAWS AND INTELLECTUAL PROPERTY ISSUES
We have come across instances of data theft, phishing, and Cyberbullying, Cyber Terrorism, etc. but Remedies are available against such instances in the legislative framework of Cyber Laws. Some short overviews of those laws are given below.
Sec. 65 of the IT Act, 2000 pertains to Tampering with computer source documents, whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer program, or computer system which are required to be maintained or kept by law. For the time being in force shall be punished with Imprisonment up to Three Years or with a fine which may extend up to two lakh rupees, or with both.
SEC. 66 COMPUTER RELATED OFFENCES
If any person dishonestly or fraudulently, does any act such as accessing or securing access to a computer, computer system, computer network he shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to five lakhs rupees or with both.
SEC. 66 C PUNISHMENT FOR IDENTITY THEFT
Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique Identification Feature of any person shall be punished with imprisonment of either for a term which may extend to Three Years and shall also be liable to fine which may extend to Rupees One lakh.
SEC. 66 D PUNISHMENT FOR CHEATING BY PERSONATION
Any Person or entity creates any phishing websites, Fake Identity on the Internet for intent to steal sensitive data by deceiving any person, which act may cause to damage or harm to that person in body, Mind, Reputation or Property, is said to “Cheat” Such offense will be punishable with imprisonment of either description for a term which may extend to Three Years and shall also be liable to fine which may extend to one lakh rupees.
SEC. 66 E PUNISHMENT FOR VIOLATION OF PRIVACY
Whoever, intentionally or knowingly captures, publishes, or Transmits the Image of a Private Area of any Person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to Three Years or with fine not exceeding two lakh rupees or with both.
Sec. 66 F Cyber Terrorism
Whoever with intent to threaten the unity, integrity, and security or sovereignty of Nation and attempting to penetrate or access a computer resource without authorization shall be punishable with Imprisonment of life.
Section 420 of the Indian Penal Code, 1860 states that cheating by personation or inducing to deliver any property shall be punishable with imprisonment for a term of three years which may extend to seven years, and a fine.
INTELLECTUAL PROPERTY ISSUES
According to section 14 of the Copyright Act, “Copyright means exclusive Right to do authorize
To Reproduce a computer program in any material form including the storing of it in any medium by electronic means. But In many Instances, problems relating to the Infringement of Copyright and Trade Marks arise in cases where cybersecurity-related issues take place.
E-COMMERCE AND DIGITAL MONEY
E-Commerce means buying and selling goods or things over the Internet. Many instances arise where data theft, fraud profiles actively work on the Internet and social media to induce people to buy a specific type of thing at a very cheap price.
Please read concluding on thedailyguardian.com
They promote such things on the Internet very systematically to take undue advantage of Buyers. We are required to take action against this fraudulent act done by fraudsters at the time such concerns arise.
Cybersquatting: A plague upon the corporate identity
The advent of internet era has witnessed a huge surge in profits of various e-commerce and has shoved every potential business to adopt the online mode. The domain name which is an online website locator or the address of a specific entity on the internet links the company to its prospective customers and eases the process of doing business. The Internet Domain Name System (DNA), was designed from the perspective of identifying such websites by their domain names. However, the arena of internet is not bereft of manipulation. With practices of phishing, spam, impersonation, malware, counterfeits, etc gaining prominence, cybersquatting is paving its way as well. It is the practice were an individual or a business registers a domain name, identical or deceptively similar to the trademark or the domain name of other prominent business in order to gain potential customers of such business or to either sell it to them at a cost higher than that of registration, in case such prominent business has not priorly registered their domain name.
CYBERSQUATTING: A PRODUCT OF DOMAIN NAME REGISTRATION
Cybersquatting could be considered the most prominent forms of utilising the existing loopholes in law, which in this case would be the domain name registration i.e., registration on the basis of ‘first come first serve’. Since there is no pre-requisite condition as to the validity of domain name and no absolute or relative ground of refusing registration, the registrar has no other option but to register even those domain names which are product of cybersquatting. As businesses have inferred the gravity of internet, so have the cybersquatters, who are constantly posing challenges to multi-national companies, diverting their customers as well as profit.
The Covid-19 pandemic fuelled the practice of cybersquatting. As businesses were getting accustomed to the online mode, cybersquatters had already played their part. WIPO alone handled cases with an increment of 11% in 2020 in comparison to 2019 showing the spike during the pandemic.
It is crucial to understand that now domain name is not restricted solely for the purpose of identifying websites but has become a corporate asset, in importance, equal to that of a trademark. In India, since there is no legislation that explicitly prohibits cybersquatting or settles domain disputes, the role of judiciary is imperative.
The complainant can either accept the selling price of the domain name as quoted by the cybersquatter or can file for litigation or for dispute resolution under UDRP.
REMEDIES AVAILABLE IN INDIA LITIGATION
The complainant party can directly approach the court for settling the dispute. Applying the Trademarks Act 1999, the two available reliefs are: remedy of infringement, granted when the trademark is registered and the remedy of passing off, granted when the registration is not pre-requisite to avail such relief.
Indian judiciary has pronounced some landmark judgements upon cybersquatting. For instance, Yahoo Inc. v Akash Arora & Anr., where trans-border reputation was given priority even though Yahoo Inc. was not a registered trademark in India nor had its business running in India. Further, in Titan Industries Ltd v Prashanth Koorapati & Others, the Delhi High Court granted ad-interim injunction restraining the domain name holder from using the trade name “Tanishq” or any other name which is deceptively similar. Thereby, remarking upon the prospective aim of deceiving the customers of the plaintiff company.
2.2.2 DISPUTE RESOLUTION
To solve the conflict between trademark and domain name, Internet Corporation for Assigned Names and Number (ICANN), developed UDRP- Uniform Domain Name Dispute Resolution Policy in August 26, 1999. A complainant party can initiate the process by filing a complaint before the approved dispute resolution service providers listed by ICANN on the grounds that: the domain name is “identical or confusingly similar to a trade mark or service mark” of the complainant; registrant has no right or legitimate interest in respect of the domain name; and it is been registered and used in bad faith. For availing the remedy under UDRP, it is to be established that the domain name was used and registered in bad faith.
There are six ICANN approved dispute resolution service providers: Arab Center for Domain Name Dispute Resolution (ACDR), Asian Domain Name Dispute Resolution Centre, Canadian International Internet Dispute Resolution Centre (CIIDRC), The Czech Arbitrati0n Court Arbitration Center for Internet Disputes, National Arbitration F0rum and lastly, WIPO.
Amongst all, WIPO is the leading dispute service provider. WIPO following UDRP guidelines sets up a neutral panel of qualified people for resolving disputes within two months. The speedy resolution is why UDRP could be the future of dispute resolution, particularly for multi-national companies. There could only be three possible decision which could be granted by the panel: decision in favour of complainant party and transferring of the domain name to them; decision in favour of complainant party and cancelling the domain name; lastly, decision in favour of domain name registrant, specifying whether the dispute did not fell under the ambit of rule 4 (a) of UDPR policy and also to specify whether the complaint was filed in bad faith. However, there are no monetary damages granted in UDPR domain name disputes nor any injunctive relief is granted.
Various country code domain name registries also have started to adopt the UDRP or similar policies. As an exemplar, India has its own registry by the name ‘INRegistry’ under the authority of National Internet Exchange of India (NIXI). Its sets forth terms and conditions governing the ‘.in’ or ‘. Bharat’ domain name.
In contemporary times, corporate identity has not remained independent of domain name. Priorly domain name was used as a locator of websites, it has now been valued beyond that and has become a corporate asset which demands protection and instances of cybersquatting to be curbed. Apart from posing constant challenges to commercial businesses, cybersquatting damages their goodwill and forces their owners to resolve such issues in a limited time period.
Comparing the remedies accessible, it is believed that UDRP will gain prominence over judicial intervention in near future, reasons being speedy dispute resolution, low cost and no court appearances. However, UDRP should be applied to other types of domain name as well in order to increase its scope.
Talking about statute, India has no legislation in particular prohibiting cybersquatting unlike developed nations like USA. Since there is no explicit prohibition, the domain name is registered on a first come first serve basis which provides for a potential loophole in law, often misused by people. With a sudden spike of cybersquatting during pandemic, it is evident that India is in need of explicit legislation pertaining to cybersquatting/domain name dispute which should govern every aspect of it.
With a proper legislation in hand, cybersquatting could be prevented at the stage of registration which in turn would save precious judicial time, unnecessary expense of money on the part of complainant and an overall easement of process. It would also prevent selling of domain name by the cybersquatter for a high price and would thus, curb such practices of benefitting at the loss of others.
UNIFORM CIVIL CODE IS A MUCH NEEDED LEGISLATION
The Uniform Civil Code means a uniform personal law for all citizens of the country. This code will replace the existing religious personal laws in India and have a uniform law that will cater to all the citizens, irrespective of their religion. This has been envisaged by the makers of our Constitution under Article 44. But it has been strongly opposed because it is considered violative of Article 25 of the Constitution since it does not let people enjoy the personal laws. The article 44 of the Directive principle state policy state that it is the duty of the state to secure a Uniform Civil Code for the citizens throughout the country. One country, one rule is another name for it. The main objective behind implementation of a uniform Civil code in India is that it sets a law to govern the personal matters of all the citizens irrespective of religion. Personal laws are different from public laws as they cover marriage, inheritance, adoption, divorce and maintenance and the India practices a model of secularism in which it has made special provisions for people of different religions and the main idea behind Uniform Civil Code is to treat everyone equally irrespective of religion. Now the problem exists in the fact that there are differences and discrepancies within the personal laws. There is no uniformity. Also, there has been instances where the personal laws denied the rights of women or did not even give them rights. To counter these shortcomings, the Uniform Civil Code can be enacted. In India the main cause for communal conflicts among the common people are the personal laws The Uniform Civil Code is a uniform method or a standardized law which governs citizens as a uniform law. One problem with an absence of having UCC throughout India is that it may go against the basic principles of equality that is one of the fundamental rights of the constitution because by providing personal laws to a certain section of people we are determining the credibility of the secular ethos in the country.
As a matter of fact, it is known that personal laws of communities Gender Injustice is inbuilt. This is a result of the social and economic conditions under which these have been evolved and this is one of the Important reasons that why there is a need to introduce reforms in personal laws or bring about UCC to not only ensure equality between men and women but also in order to bring about gender justice. A uniform civil code if implemented shall lay the grounds for women to overcome various social evils that exist in the society such as the bigamy system and the dowry system which make women feel inferior and degraded. In order to bring uniformity, the courts have often said in their judgements that the government should move towards a UCC. The judgement in the Shah Bano case (1985) is well known where The Supreme Court’s decision in this case is regarded as a major milestone in highlighting the importance of UCC. The case concerned women seeking maintenance after being divorced under triple talaq. The women won in all lower courts, so the husband filed an appeal to the Supreme Court, which was dismissed because the Supreme Court ruled in favour of the wife as per the All India Criminal Code’s “maintenance of wives, children, and parents” provision (Section 125). In addition, the court recommended that a uniform civil code be established. However, widespread agitation was carried out due to religious sentiments attached to the law, and as an outcome, the then-government, under pressure, passed the Muslim Women’s (Right to Protection on Divorce) Act (MWA) in 1986, rendering Section 125 of the Criminal Procedure Code inapplicable to Muslim women. As a result, the court was correct in emphasising the importance of UCC for having a common basis for jurisdiction. Another case was the Sarla Mudgal Case (1995), which dealt with issue of bigamy and conflict between the personal laws existing on matters of marriage. In this case, relating to the issue for solemnizing of a second marriage by a Hindu spouse after converting to Islam. The court determined that a Hindu marriage solemnised in accordance with Hindu law may be dissolved only on one of the reasons listed in the Hindu Marriage Act 1955. Conversion to Islam and subsequent marriage would not automatically dissolve the Hindu marriage under the act, and therefore, a second marriage solemnised after conversion to Islam would constitute an offence under Section 494 of the Indian Penal Code (IPC). This made a need of UCC as it creates an ambiguous policy of marriage due to discrepancies between religious laws. By arguing that practices such as triple talaq and polygamy impact adversely the right of a woman to a life of dignity, the Centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights. While the criminal laws in India are uniform and applicable equally on all, no matter what their religious beliefs are, the civil laws are influenced by faith. Swayed by religious texts, the personal laws which come into effect in civil cases have always been implemented according to constitutional norms. The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts. In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations. In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from Quran. Some more judicial decisions that can be taken into account are:- John Vallamattom Case (The case in which Section 118 of the Indian Succession Act was declared unconstitutional after John Vallamattom challenged it on the grounds that it discriminated against Christians by imposing unreasonable restrictions on their willed gifts for religious or charitable purposes. This demonstrated the inconsistencies under religious laws), Daniel Latifi Case (This case demonstrates how universally applicable law should prevail over unjust religious laws. In this case, Muslim Women’s Act (MWA) was challenged for violation of Articles 14,15 & 21 of the Constitution. The primary point of contention was the amount paid throughout the iddat period. The Supreme Court upheld the act’s constitutionality but interpreted it in accordance with Section 125 of the CrPC, holding that the amount received by a wife during the iddat period should be sufficient to support her during the iddat period as well as for the remainder of her life or until she remarries).
The UCC aims to provide protection to vulnerable sections as envisaged by Ambedkar including women and religious minorities, while also promoting nationalistic fervour through unity. When enacted the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu code bill, Shariat law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all. The same civil law will then be applicable to all citizens irrespective of their faith. India faces a serious problem with personal laws due to their bias toward the upper-class patriarchal conceptions of society in all religions. As may be seen, panchayats continue to issue verdicts that violate our constitution, and no action is taken. Human rights are abused throughout our country through honour killings and female foeticide. By legalising personal laws, we’ve established a parallel court system based on thousands of ancient values. By eliminating all loopholes, the universal civil code would tip the balance in favour of society. While Muslims are permitted to marry many times in India, a Hindu or a Christian will face prosecution for doing the same. Similarly, there are significant disparities between many religious-related regulations. Equal laws in the areas of marriage, inheritance, family, and land are required. Here UCC serves as a saviour, bringing everything under one roof and assisting not only in ensuring greater equity but also in streamlining the legislative and judicial processes. The concept of a uniform civil code will also aid in reducing vote bank politics, which is practised by most political parties during every election. If all religions are subject to the same laws, there will be no room for politicising issues of discrimination, concessions, or special privileges enjoyed by a particular community on the basis of their religious personal laws. A Uniform Civil Code has become the hallmark of a modern progressive nation’s legal structure. It demonstrates the nation’s transition away from caste and religious politics. While our economic growth has been the fastest in the world, our social development has been non-existent. Indeed, it is possible to argue that we have degraded socially and culturally to the point where we are neither modern nor traditional. A unified civil code will aid in the advancement of society and help India achieve its goal of becoming a developed nation. As we all know, secularism is a critical aspect of our nation, as reflected in our constitution’s preamble. At the moment, we practise selective secularism, which means that we are secular in some areas but not in others. A Uniform Civil Code requires all citizens of India to adhere to the same set of laws, regardless of whether they follow Hinduism, Islam, Christianity or Sikhism. A Uniform Civil Code does not mean that people’s freedom of religion will be restricted; it simply means that everyone will be treated equally. That is authentic secularism. Additionally, as previously stated, in modern classification laws and religion are two distinct concepts, and thus entwining them will result in social disruption and inequality.
India is a country of diverse culture where the beliefs of the people are too vehement but with the right communication and education to all the religious groups, the implementation can take place efficiently and effectively. Special Marriage Act which has been enacted is hardly seen into practice since it is a mere option and not requisite, which further shows the importance of Uniform Civil Code. Thereafter, the culture of spreading inadequate information shall be dealt with regardless as it has become a trend in the country and could result to hindering proper implementation of the requisite laws like Uniform Civil Code. Uniform Civil Code is not a step to make India a Hindu State rather to bring about unity between different religions along with application of same provisions for all, leading to simplification of law and order for better results in the nation. Fear of the certain section of society who are subjected to the special rights, shall be addressed since such rights will have no impact or interference by enactment of the Uniform Civil Code, which shall be ensured to the society as this is one of their Fundamental Rights as under Article 15 of the Indian Constitution. Right to Religion under Article 25 of the Indian Constitution is not specifically for men but also females of the nation. The lack of political will to implement Uniform Civil Code is quite evident, it is important for the government to take strong steps rather than fearing the sensitive issues, keeping the prosperity of the nation and its people in mind such step shall be encouraged. Eminent Jurist from all the religion shall form a committee to bring together the Uniform Civil Code so that all the religions are kept in mind while drafting the Uniform Civil Code without any personal biases towards a particular religion. Uniform Civil Code is surely a sensitive issue but with the right information and communication it can bring about an ever lasting change in the nation along with the right growth and development. The developed countries like USA, Canada, Australia, UK, Russia etc. have adopted the Uniform Civil Code as a developing law for the betterment of their society, culture, religion and to remove discrimination amongst the communities. Uniform Civil Code is the only reason for these countries to achieve their higher goals. USA have a secular law that applied equally and uniformly upon all the citizens of their state. The USA have English common law, which makes every person equal and remove the discrimination between the majority and minorities. Even people from other countries also have to follow common law of their country. Because of uniform civil code USA has achieved its goals and is successful in developing in all aspects which include economically, socially and religiously as well. In India Goa is the only state in India having Uniform Civil Code as special marriage act 1954 is applicable all over the Goa. This was introduced by Portuguese in 1870 as goa family law but after the liberation of Goa this law was retained and became special marriage act in 1954. This marriage acts provides a civil marriage of two person of different sex irrespective of their religion. This law prevail in Indian to have their marriage outside the customs of their personal law. This law is still followed in Goa as it punishes polygamy which means having more than one spouse at a time. Hence no person can have more than one marriage at a time. Also this act states that at the time of divorce both husband and wife will be treated equally with regards to property and will not be discriminated. However, this act discriminates on a ground that a Hindu male can have more than one spouse living if the earlier wife fails to deliver a boy till she attain the age of 30 years, this shows that even this civil act is discriminatory.
Our country has diverse culture, tradition, religion to make them more progressive then, we need to remove discrimination on basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation growing traditionally as well as economically. Some communities think that Uniform Civil Code is ban for them as it is against their religion. Nevertheless it is modernization of their religious law which will boost up their equality and will make them rich traditionally and socially. According to Article 14 of the Indian constitution, every single citizen is equal in the eyes of law and court. But in India, we have personal laws based on the particular religion. For example, a Muslim can marry multiple times and he will not be prosecuted but if there is any Hindu, Christian or Sikh then he will be prosecuted by the court which is against the saying of Article 14 of Indian constitution. This is not equality in real means. If we want equality then there should be the same laws related to marriage, adoption, divorce, inheritance, family, land etc. Then the exact definition of equality will be defined. In some aspects personal laws are violation of article 14 of the constitution of India. Taking into account as stated by The Supreme Court judge-Justice Y.V. Chandrachud, rightly remarked, a common civil code will also help in strengthening the cause of national integration by removing conflicting interests. So to address the concerned controversy over UCC we would like to conclude by stating that the manner in which UCC was dealt with by the British in 1840, the issue is discussed with same apprehensions even 200 years later. The Shariat Application Act of 1937 protects the application of different laws as far as the Muslim Personal Law is concerned, but despite this, many personal laws of Muslims have been codified. The last in the row is the law of 2019, protecting Muslim women’s right of marriage. Equal rights to property for Hindu women come in bits and pieces. In 1935, Hindu women got limited right to property. In 1956, she got equal absolute right to property in succession and finally, a daughter got equal rights to the coparcenary property and agricultural or rural lands in 2005. Equal rights cannot be ensured just by one stroke. It requires consistent efforts and commitment for a long period of time. Our purpose of giving the example of Hindu law dealing with right to property of women was to emphasise that there was no unification in property rights of Hindu women. It was different at different points in time. UCC is something which can never be answered in a straight Yes or No. It has no one word answer. It is a process which has been going on and must continue to ensure rights of all members of society. The unification of code is not possible until society is serious about codification of the code. Codification is a pre-requisite for unification.
Our country has diverse culture, tradition, religion. To make them more progressive we need to remove discrimination on the basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation grow traditionally as well as economically.
Family court with territorial jurisdiction is the competent authority to give a child in adoption: Kerala HC
Without leaving any room for even an iota of doubt, the Kerala High Court has in a learned, laudable, landmark and laudable judgment titled Thomas P & Anr. V. State of Kerala & Ors in CRL. A. No. 971 of 2019 which was delivered on November 5, 2021 has laid down explicitly that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. The Court noted that as per law, the appellants were eligible to adopt the child. Moreover, it must be mentioned that presently the Family Courts are designated as Adoption Court as per O.M. No. D12-10890/2016 of the High Court of Kerala. As such, the decision of the District Judge was set aside and the appeal was allowed. The District Court was also directed to return the records for presentation before the proper court.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice M.R. Anitha of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Crl.A has been filed against the order in O.P. (Adoption). No. 75/2016 dated 15.03.2016 of District Court, Kollam. According to the learned counsel for the appellant, respondents 2 and 3 are husband and wife. The 2nd respondent is the brother of the 2nd appellant and 3rd respondent is the wife of the 2nd respondent. The respondents 2 and 3 are the biological parents of Kumari, Maria Johnson aged 8 years old, who is the 4 th girl child of the said couple. The appellants are childless couple; both of them had undergone treatment for infertility for a long period. Doctors confirmed that it will not be possible for the appellants to become biological parent of a child. The 2nd appellant had to undergo uterus removal surgery. Hence, at present there is no chance for the 2nd appellant getting conceived. Kumari. Maria Johnson is the 4th girl child of the respondents 2 and 3. While so, the respondents 2 and 3 expressed their willingness to give in adoption of Kumari. Maria Johnson to the appellants. Hence, with a view to legalize the entire proceedings, O.P.(Adoption) No. 75/2016 has been filed by the appellants before the District Judge, Kollam. By the impugned order, the learned District Judge dismissed their O.P., finding that the court has no jurisdiction to entertain or adjudicate the issue of adoption mooted by the appellants and aggrieved by the same appellants approach this Court.”
As we see, the Bench then observes in para 3 that, “Heard both sides. Section 2(2) of the Juvenile Justice (Care and Protection of Children) , 2015 reads as follows: “‘adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”
Furthermore, the Bench then mentions in para 4 that, “Section 2(23) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows: “Court’ means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.”
What’s more, the Bench then added in para 5 that, “Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:
“ ‘relative’, in relation to a child for the purpose of adoption under this Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent.””
Going ahead, the Bench then points out in para 6 that, “According to the learned counsel for the appellants, being the brother’s child of the 2nd appellant, the child supposed to be adopted will come within the definition of ‘relative’ defined under Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 56(2) is also relevant which reads as follows:
“Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.””
Moving on, the Bench then also stated in para 7 that, “Next the learned counsel drew my attention to Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the Act) which deals with the appeals and reads thus:
“Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)”.”
To put things in perspective, the Bench then states in para 8 that, “So this is the proper forum for entertaining an appeal against the impugned order. The learned counsel drew my attention to the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2014 ( In short the rules). Rule 40(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 reads as follows:
“For all matters relating to adoption, these rules and guidelines issued from time to time by the State Government and notified by the State Government shall apply. In the absence of such rules the guidelines issued by the Central Adoption Resource Agency and notified by the Central Government under subsection (3) of Section 41 of the Act shall apply.””
As it turned out, the Bench then lays bare in para 9 that, “Rule 41(C) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 deals with the procedure for adoption reads as follows:
“The specialised Adoption Agency along with the prospective adoptive parent(s) shall file a petition in the Court having jurisdiction for obtaining the necessary adoption orders under the Act and these Rules within ten days from the acceptance of referral by prospective adoptive parent(s) and shall take necessary steps to get the process of legal adoption completed at the earliest.””
In addition, the Bench then points out in para 10 that, “The learned counsel also drew my attention to the Adoption Regulations, 2017. Regulation 4 of Adoption Regulations, 2017 deals with child eligible for adoption reads as follows:
The following shall be eligible for adoption, namely:-
“(a) any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
(b) A child of a relative defined under sub-section (52) of Section 2 of the Act;
(c) child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.””
Not stopping here, the Bench then notes in para 11 that, “Regulation 5(7) of Adoption Regulations, 2017 reads as follows:
“ The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.””
Interestingly enough, the Bench then further noted in para 12 that, “The learned counsel further drew my attention to Regulation 55 Adoption Regulations, 2017 reads as follows:
“Legal procedure:- 1)The prospective adoptive parents, who intend to adopt the child of a relative as defined in sub-section (52) of Section 2 of the Act, shall file an application in the competent Court under sub-section 2 of Section 56 of subsection (1) of Section 60 of the Act in case of in-country relative adoption or inter-country relative adoption, respectively, alongwith a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI.
Women in live-in relationships and the matter of stealthing: A hidden issue
With the changing lifestyle and westernisation of people’s ideology, the practice of non-formal relationships by “Live-in Relationship” has emerged. With time, the concept of companionship has evolved, and it is no more limited to the usual way of a Marriage. This new expression of a live-in implies two individuals having a consensus to cohabit under the same roof to check their compatibility before the actual marriage ceremony. Sometimes termed as a walk-in walk-out relationship, this kind of union is entirely legal, although it has never been recognised in any Acts or other legislation across India. Judiciary has undoubtedly, in the process, played a significant role to normalise this practice by delivering certain revolutionary judgments.
THE LEGITIMACY OF LIVE-IN RELATIONSHIP: A CONFLICT BETWEEN MORAL PREACHING AND LEGAL PRINCIPLES
Recent judgments delivered by the Punjab and Haryana High court have proven that courts should be concerned with constitutional morality and not with what is considered moral in the eyes of society. In the series of events, the two benches of the high court had formerly denied protection to a couple who demanded security from their family members, quoting those live-in relationships are illegal in the country and is looked down on by society. Later on, the other bench took cognisance of the case and held that the couple shall be protected at all costs and that an individual’s liberty cannot be merely taken away on the grounds of being immoral.
The term constitutional morality was duly interpreted in the case of Manoj Narula v. Union of India, and it was found that to examine the constitutional character of any subject, it is to be assured that it aligns with the constitutional principles and does not become an act of arbitrariness by going against the set rules. The working of the Indian Constitution has been structured so that its principles match the needs of a progressive society. Its evolution is directly proportional to the conditions and culture prevailing in the community.
In its other leading judgment of Indra Sarma v. V.K.V. Sarma, the Supreme Court, via a liberal approach, opined that Live-in is a novel approach of the current generation to get into the nitty-gritty of a household without actually being bothered by an official tag of marriage. It is neither a sin nor a crime in the eyes of the law and shall be welcomed with open arms.
LIVE-IN RELATIONSHIPS: ABSENCE OF STATUSES AND ROLE OF COURTS AS GUARDIAN
The absence of a statutory enactment makes the practice swinging in uncertainty. There is neither any legal definition of the relationship nor any prescribed punishments for the wrongdoers. However, the court has tried to provide an identity to it by defining it in five different ways while delivering the judgment of Indra Sarma v. V.K.V. Sarma. The live-in relationship is where two individuals’ privacy needs to be protected. It does not matter how society pursues them to be about the privacy judgment held in K.S. Puttaswamy v. Union of India it is to be quoted that it is the decision of the individuals how they want to spend their lives as. It is not just providing them with the right to freedom to choose but the state’s duty to protect their very choice. It is necessary to ensure that the individual enjoys liberty with the utmost dignity and opt for whatever they deem suitable for a happy life.
The Supreme Court put forward certain conditions to certify a cohabitation as a “legal live-in relationship”. In the 2010 judgment of D. Velusamy and D. Patchaimal, the court specified the couple must adhere to the following points while establishing a legal live-in relationship. These were:
Both the boy and the girl have to present themselves as akin to being a husband and a wife.
They both must be legally eligible for marriage and should have attained the age of 18.
They must be eligible to get into a legal marriage and be unmarried.
Both have a consensus of mind for cohabitation without any pressure and have lived like a husband-wife for a considerable period.
The apex court acknowledging the menace of khap-panchayats and honour killings across the country strongly opined that it is highly crucial to ensure that the right to choose a partner is protected at all costs. It is a combined duty of the state and the judiciary to look after the rights of those young couples who usually run away to save their lives from brutal attacks.
DEALING WITH THE ISSUE OF WOMEN IN THE LIVE-IN RELATIONSHIP: AN ANALYSIS
The Protection of Women from Domestic Violence Act of 2005 (Pwdva) is the first piece of legislation to recognise live-in relationships by providing rights and protection to women who are not legally married but have chosen to live with a male partner in a relationship that is similar to but not identical to marriage. Section 2(f) of the Domestic Violence Act, 2005 defines: “Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family”. The court has interpreted the expression “relationships like marriage” on the same line and meaning with the live-in-relationships. The provisions of Pwdva will apply to all the individuals who are in live-in-relationships. “This provides women with fundamental rights to protect themselves from abuse, fraudulent marriage, and bigamous relationships”. Section 125 CrPC is one crucial legislation that was inducted to avoid vagrancy and destitution for a wife/minor children/old age parents, which has now been given to partners of a live-in-relationship after judicial interpretation. “Malimath Committee, also known as the Committee on Criminal Justice System Reforms, was founded in November 2000. The committee presented its report later in 2003, with some notable recommendations under the heading “offences against women.” One such bid was to amend Section 125 of CrPC to alter the meaning of wife, and the revision was made accordingly. The expression includes the ladies in the live-in-relationship, but the accomplice has abducted her at his own will, so now a lady in the live-in-relationship can get the wife’s status. It interprets that if a female has been in the live-in-relationship for a considerable period, she should have legitimate privileges as a spouse and claim maintenance under this section. A presumption would arise in wedlock where partners live together as husband and wife. However, a contradictory decision came when it was decided that the divorced wife could be treated as the wife and claim maintenance under Section 125 of CrPC. Still, it won’t apply to those staying in live-in-relationships because they are not legally married, and partners cannot divorce each other and claim maintenance under this section.”
STEALTHING: AN UNIDENTIFIED CRIME HIDDEN BEHIND THE MISINTERPRETED MEANING OF CONSENT AND IMPACT OF THIS IN A LIVE-IN RELATIONSHIP
Stealthing refers to the act of secretly removing a condom while having sexual intercourse with a partner who has consented to the protected sex. This is a deceptive form of sexual assault that grossly violates the sense of consent and exposes the partner to unwanted pregnancies, sexually transmitted diseases, etc. The non-consensual removal of condoms has been identified as a form of sexual assault by various western jurisdictions; for instance, “The Supreme Court of Canada and the Swiss Criminal Courts have identified stealthing as rape (R v. Hutchinson, 2011). Further, this issue acquired international attention when UK’s Supreme Court stated that stealthing fell under the ambit of rape and accordingly introduced the “doctrine of conditional consent” (Assange v. Swedish Prosecution Authority, 2011).” It is still a grey area between the white and black definitions of consent in India. It is an important issue that needs to be discussed because of India’s social conditioning and stigma attached to contraceptives. The National Health Survey of India 4 (NHS4) found that 80% of adult men aged between 20 to 24 years do not use contraception while having sexual intercourse; this might emerge from the notion that the use of condoms makes ‘one less of man’. The idea of ‘conditional consent’ has been identified under Section 375 (4) of the Indian Penal Code, which stipulates, “When the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is, or believes herself to be lawfully married, such sexual intercourse shall amount to rape.” This scenario explains that a woman’s consent is conditional on the man’s being her husband. When this factor is eliminated, the consent is effectively hampered, which the statute identifies as rape. Suppose the analogy has been drawn to the act of stealing, and the consent is based on the partner using a condom. In that case, the non-consensual removal of the protection during sexual intercourse invalidates the consent, thus amounting to rape. The non-consensual removal of condoms also is further covered under the ambit of Section 270 of the Indian Penal Code, which penalises malicious acts that are likely to cause the spread of deadly diseases. “The above analysis shows that stealing has all the elements of a crime but still has not been recognised as one; the policymakers and researchers have tried to look for the civil rather than criminal mechanisms while dealing with Stealthing. It is pertinent to note that Mrinal Satish, a professor involved in expanding the definition of rape in the Criminal Law Amendment Act, 2013, firmly believes that stealing should be covered within the ambit of rape”. Women in live-in relationships became very easy victims in such scenarios as the legislation for both live-in-relationship and stealing are unclear, leaving the victims unheard. If their issues are addressed in some circumstances, ambiguous legislation leaves the perpetrators free. It is time now that specific legislation concerning the above-stated matter is rolled out, and no room for injustice prevails.
Please read concluding on thedailyguardian.com
Worse than expulsion, punishment on constituency: SC
To start with, we saw how just recently the 12 BJP MLAs from Maharashtra had gone to the Supreme Court in protest against their year-long suspension from the State Assembly which definitely appears too harsh a punishment. Without any reservation, the Apex Court expressed an inclination to interfere with the resolution passed on July 5, 2021 by the Maharashtra State Legislative Assembly. We also saw how when the petition in this case titled Ashish Shelar And Ors. Vs The Maharashtra Legislative Assembly And Anr. in W.P.(C) No. 797/2021 and connected cases was called for hearing on January 11, 2021, the Apex Court Bench comprising of Justice AM Khanwilkar, Justice Dinsh Maheshwari and Justice CT Ravikumar after hearing the case in part minced no words to observe that the suspension of 12 BJP MLAs from the Maharashtra Assembly for a full year is “prima facie unconstitutional” and “worse than expulsion” as the constituency is remaining unrepresented.
It cannot be glossed over that the Apex Court has flagged the statutory requirement to not keep a seat vacant for more than 6 months! What Apex Court has said is absolutely valid. The Apex Court also minced no words to say most effectively, elegantly and eloquently that a “constitutional void” and a “hiatus situation” has been created in these constituencies and the “consequences are dreadful”.
To put things in perspective, the Bench also pointed out that, “If there is expulsion, there is a mechanism to fill up the vacancy. The suspension for one year will amount to a punishment on the constituency.” Justice AM Khanwilkar observed in simple, suave and straight language that, “This decision is worse than expulsion. No one can represent these constituencies in the House when they are not there…This is not punishing the member but punishing the constituency as a whole.”
To recapitulate, on July 5, 2021, we witnessed for ourselves how soon after the Assembly met for its two-day monsoon session, there was a lot of commotion and furore as Leader of Opposition and former Chief Minister of Maharashtra – Devendra Fadnavis of BJP objected seriously to an attempt by State Minister Chhagan Bhujbal of NCP to table a resolution demanding that the Centre release data on Other Backward Classes (OBCs) so that seats could be reserved exclusively for them in local bodies in Maharashtra. While protesting we also saw how several BJP MLAs had entered the well in protest, snatched the mace and uprooted mics which led to frayed tempers. We also witnessed how the Shiv Sena MLA Bhaskar Jadhav who was in the Chair presiding the House then adjourned the House for 10 minutes following which some BJP MLAs allegedly entered his chamber and threatened, abused and misbehaved with him which is definitely most outrageous and cannot be ever justified.
In hindsight, it must be mentioned here that the Maharashtra House was devoid of any Speaker in the House stemming from Nana Patole of the Congress party resigning and Shiv Sena MLA Bhaskar Jadhav was one of the four presiding officers that were named by Acting Speaker Narhari Zirwal the previous day. It also deserves mentioning here that Maharashtra Parliamentary Affairs Minister Anil Parab subsequently moved a resolution to suspend 12 BJP MLAs – Bunty Bhangdia, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia – for a year. Naturally, the suspended 12 BJP MLAs then filed a writ petition in the Apex Court in 2021 against the Maharashtra State Assembly and the State of Maharashtra and asked for the suspension to be quashed as they felt that the punishment was too much. The matter has been posted for further hearing on January 18.
To be sure, we need to pay attention here that the Bench made it absolutely clear that as per the relevant rules, the Assembly has no power to suspend a member beyond 60 days. In this regard, the Bench then sought it fit to refer to Article 190(4) of the Constitution which stipulates that a seat will be deemed to have become vacant if a member remains absent in the House without its permission for a period of 60 days. The Bench pointed out clearly that as per Constitutional provisions, a constituency cannot go unrepresented for a period beyond 6 months. It cannot be lost on us that while saying so, the Bench flatly refused to buy the argument of senior and eminent advocate of Apex Court C Aryama Sundaram who appeared for the State of Maharashtra that the court cannot examine the quantum of punishment imposed by a Legislative Assembly.
As it turned out, what followed next was that after the Bench expressed its views, Sundaram then politely sought time to take instructions from the State. The hearing was then accordingly adjourned to January 18. The Bench made it clear that it will not go into other aspects except the quantum of punishment. Justice Khanwilkar told Sundaram that, “…we can say that the decision to suspension can only operate till 6 months and later than that it will be hit by a constitutional bar.”
As we see, the petition of suspended 12 BJP MLAs submitted that their suspension is “grossly arbitrary and disproportionate”. The challenge that they bank upon is denial of the principles of natural justice and violation of laid down procedure as per the law. It is the strong grievance of these MLAs that they were not even given an opportunity to present their case and that their suspension violated their fundamental right to equality before law as enshrined under Article 14 of the Constitution. They have also submitted that contrary to rules, they were not given access to video of the proceedings of the House and it was not clear how they had been identified in the large crowd that had gathered in the chamber. They do have a point!
Furthermore, the MLAs have reckoned that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker and it cannot be put to vote in a resolution as was done glaringly in this case. For esteemed readers exclusive benefit, it must be mentioned here that Rule 53 states that, “The Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly.” The member must “absent himself during the remainder of the day’s meeting.” Should any member be ordered to withdraw for a second time in the same session, the Speaker may direct the member to absent himself “for any period not longer than the remainder of the Session”.
Of course, it cannot be denied that the Bench rightly said that, “The basic structure of the Constitution would be hit if the constituencies of the suspended MLAs remained unrepresented in the Assembly for a full year.” The Bench very rightly referred to Article 190(4) of the Constitution which stipulates that, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”
Be it noted, under Section 151 (A) of the Representation of the People Act, 1951, “a bye election for filling any vacancy..[in the House] shall be held within a period of six months from the date of the occurrence of the vacancy.” This clearly implies that barring exceptions specified under this Section, no constituency can remain without a representative for more than six months. This is why the Apex Court flagged most commendably the statutory obligation to not keep a seat vacant for more than 6 months which no one can ever deny!
It would also be worth noting that Rules 373, 374 and 374A of the Rules of Procedure and Conduct of Business in Lok Sabha stipulate for the withdrawal of a member whose conduct is “grossly disorderly” and suspension of one who abuses the rules of the House or willfully obstructs its business. It is quite noteworthy that the maximum suspension as per these Rules is as stated “for five consecutive sittings or the remainder of the session, whichever is less.” It has to be conceded that the maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less.”
What’s more, the maximum suspension for Raja Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspension as we witnessed of members did not exceed the remainder of the season. This is exactly what the Apex Court took into account also.
In addition, we saw how Mahesh Jethmalani who is an eminent and senior lawyer of the Supreme Court pointed out cogently that recently when the Rajya Sabha suspended 12 MLAs for disorderly behaviour, it operated only for the duration of the session. He argued that the rights of the constituency are also to be protected. Mukul Rohatgi who is the former Attorney General of India and also an eminent and senior Supreme Court lawyer too argued that the principles of natural justice were violated by the House. The petitioner’s lawyers argued that the Court has jurisdiction to examine the correctness of the punishment of the House. Senior advocate Siddharth Bhatnagar raised the argument that the suspension cannot exceed 6 months. He submitted that, “If seats are allowed to be vacant then it has a major effect on the democracy. This is worse than expulsion.” He also added that this can allow the government to manipulate the strength in the House to secure majority votes in crucial issues.
In conclusion, we definitely have to keep our fingers crossed as to what the Apex Court will finally rule when it comes up for hearing on January 18. But it goes without saying that the case of the petitioner is strong. This quite evident from what we see the initial observations of the Judges who are hearing this high profile case. One is sure that the Apex Court will decide the case as per the law and we will soon read what is ruled also in this leading case!
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