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Legally Speaking

The contempt and mercy fallout: Revisiting the scales of adjudication

When judges/courts start a suo motu proceeding of contempt, they act as the prosecutor, the witness, and the judge, which makes it equivocal and solely at the discretion of the judges themselves to decide whether the act or words were fair criticism or not.



Contempt of court is a common law principle that aims to protect the integrity of the judicial institutions from unwarranted attacks, vilification, and demeaning criticism. It acts as a watchdog against those who intend to attack the court’s dignity thereby bringing into disrepute the idea of courts in the minds of the right-minded people. The legislative intent understood contempt, as a safeguarding tool to protect and strengthen the dignity of the court and its interest in the administration of justice.

The concept of contempt is wide which makes it difficult to lay down one specific definition expounding the offense. The Indian Contempt of Court’s Act, 1971 codifies contempt in two major categories, i.e. civil and criminal. While civil contempt deals with willful disobedience of a court’s order, the ambit of criminal contempt on the other hand is still obscure and is regarded as a subjective interpretation that majorly resides in any written or spoken, signs and actions that “scandalize” or “tend to scandalize” or “lower” or “tends to lower” the authority of any court or prejudices or interferes with any judicial proceeding or interferes with or obstructs the administration of justice.

Over years, the scope of freedom of speech and expression has widened. With the advent of new and modern avenues, there is an increase in the opportunities for people to speak up their mind while exercising their freedom empowered by the constitution. Therefore, any allegation thereof against the judiciary or any judge, aiming to criticize the intention behind a judgment or its judicial functions, may be considered to be a part of the offense. Even any scurrilous attack on the conduct of the judges may be considered to be scandalizing against the judiciary as a whole, but the primary underlying principle of contempt intends to protect the authenticity and dignity of the courts from the provocative attacks and not the individual judges.

The importance of contempt is unassailable, it and seeks to preserve the faith of people in the judicial system, but what remains abstruse is its ambit and fair adjudication. The non-objective shade in criminal contempt is open to the subjective determination of the judges when they are expected to decide whether an act is contemptuous or not. It is necessary to avoid any form of influence while making a decision on contempt. This raises serious points of deliberations and opens up scope for amends. It is also notable that, there should be a free and fair determination of the case at hand, but the judges should not have a say in the decision making.


The principle of Nemo judex in causa sua, that is, “no person should be a judge in his/her own cause” finds its place in the debate on criminal contempt as the judges are empowered to decide the cases of contempt involving the interests of the judicial system which they are a part of and at times against themselves. Contentions arise with the subjective and discretionary power in the analysis of an act/expression as contemptuous. Such determination is dicey, as substantial interests are involved and it can be presumed that, the decisions may be influenced by their personal and professional bias. 

The various provisions of this law, which warrant the court to take Suo moto cognizance against the cases make it more proactive and scandalous. When the judges/court start a Suo moto proceeding of contempt, it acts as, the prosecutor, the witness, and the judge, which makes it equivocal and solely at the discretion of the judges themselves, to decide whether the act or words were scandalous or fair criticism. This provision to exercise discretionary and subjective analysis of an act as contempt creates suspicion and agitation. This leads to clash and cause distrust among the people, lowering the reputation and image of the judiciary in front of the people, ironically which the act aimed to protect. 

In the words of Justice V.R. Krishna Iyer, the law of contempt as having a vague and wandering jurisdiction, with uncertain boundaries; may because of the law itself providing for a scope to exercise power biasedly will lead to an unwitting trample upon civil liberties. 

England, basing its decision on the said maxim abolished the law of contempt, as, they believed that, the judiciary should be open to fair and healthy criticism, and judges aren’t the competent authority to deice the case of contempt. Lord Denning in the case of Metropolitan Police Commissioner (1969), suggested that, in spite of the fact, that courts have the jurisdiction for contempt they should not use it, as in the case of contempt, the judges can have a certain level of personal interest and prejudices which is against the legal principle that one cannot be a judge in their own case. Not only England but, various other foreign nations like America, Canada, and Australia, also scrapped out the concept of contempt law, anticipating the same concept and reasoning.

On many occasions, an overzealous attitude of the court to protect its dignity has led to an expanded interpretation over the ambit of contempt. As such it has been unfortunate that the powers to proceed against contempt as provided have been exercised in a significantly asymmetrical manner. The over and ill-implication of this power upon the discretion of the judges, caused an uncanny effect, by trembling and weakening the confidence as well as faith of people in the judicial system.

Recently the Supreme Court umbrage the case of contempt against Prashant Bhushan, alleging that the impugned tweets brought disrepute and are flavourful enough to undermine the dignity of the court, especially the chief justice in particular. Suo Motu proceedings were initiated against him, later in which the bench found him guilty of criminal contempt. This decision which was aimed at protecting the dignity of the system earned even greater criticism and disrepute to the court as it was believed that the judges work with a pro-judiciary mindset and thus will themselves never decide a case of contempt, against their own interests. Another concern was when the court accused Arundhati Roy of imputing motives to the court by terming some of its actions as hasty. However, the court chose to react otherwise, and although it acted with no evil intention, it certainly did more harm to its repute and credibility by acting thus. A similar case of contempt was also filled against Kunal Kamra for his alleged denigrating tweets against the CJI.

The association of the judges with the judicial institution is inseparable, which makes it very unlikely for them to have separate standing from it. It is very probable to presume that, the decision made might be motivated and predisposed by the post they hold and their professional affiliation and attachment towards the institution they aim to abide and protect. This official bias should not be disregarded, as it can have certain influence and impact over their decision they take, by the virtue of being a part of the institution against which the impugned contempt or vindication is made. 

The official bias acts so integrally, that any expression alleged to be scandalous will affect all the people coupled with it collectively, as having a reflection upon their professional entity thereby leading to a predisposed decision.

Another aspect to look upon is when similarly allied people with the judiciary i.e. judges have contrasting opinions regarding its contempt or vilification. An expression to be contemptuous in the true sense should be perceived as contemptuous by all the judges similarly as every judge in its capacity as a guardian of the court will be equally motivated/affected by the expression if it is contemptuous.

But when there is a difference in the opinions of the judges, what exactly is to be regarded as correct? Contempt for one is not contempt for another, such discrepancies should not arise, when the judges are just abiding with the law, with no personal bias and prejudice. It is imperative to understand that the law of contempt aims to protect the judicial system and its dignity, not the individual dignity of the judges. There should be a reasonable distinction between the contempt of the court as an authority to administer justice and the vindication of the judges in their individual capacity as the latter contravenes with the basic principle of the contempt law. (Baradanath Mishra v. the Registrar of Orissa High Court) The vindication of the judges in their individual capacity shouldn’t be a motivating factor in cases of contempt, as judges rely on their conduct itself to be its own vindication.


The intention is not to disregard the competency of the judges to decide a matter impartially. But it is humane and undeniable to have certain prejudices owing to the personal and professional tendencies of bias when such subjective and discretionary power is vested upon them. It becomes inexorable to avoid these influences when your roots are deeply connected and interlinked. Therefore, we suggest a better way out to avoid any subconscious influence upon the adjudication of a case of contempt. Protecting the supreme authority from any scurrilous attack should be of foremost importance, but the question here is whether the judges themselves are the appropriate authority to decide the same.

Here, we do not suggest that the contempt law altogether should also be brought down, as we understand its relevance and importance, in the contemporary situation, but there is a need to revisit the scales of adjudication of contempt by the courts, where the decision is open to be motivated by interests and discretion.

We understand that the concept of contempt will always be incapable to incorporate the endless form of expression people have, therefore the element of direction and subjectivity is inseparable from the concept of contempt. Such arrangements appear to be an archaic power of the courts, failing the true spirit and motive of the contempt law. It, therefore, becomes ineludible to make necessary amends to preserve its relevance in society. Hence, the best we can do is to keep this discretionary power free from any sort of bias and personal interest. Therefore, the law of contempt should be revisited to make a clear demarcation, over its ambit and fair administration of justice by an appropriate authority.


The executive’s (President/Governor) power of mercy to pardon, remit, respite, or commute (hereinafter as “pardon”) the sentences or punishments decided and confirmed by the judiciary has a problematic and mismatched power: authority setup. The power as devised is in derogation of the law and hence the aspect of why it should also be vested with the judiciary and not only with the executive has to be looked into.

One of the ideas behind pardon is that of providing justice in situation of a judicial malfunction. However, which essentially is a function of the judiciary, the reasons behind this indulgence of the executive in the domain of the judiciary has always been looked at as beneficial but from a lopsided lens of view diluting it as an exception to the doctrine of separation of powers.

Therefore, the anomaly in such vesting of power to the executive is immense and significant in trying to fit a square peg in a round hole.


While it is argued that pardons exist as a relief from the undue mistake in the operation of judicial functions and inconsiderate view of circumstances, even then the power to correct or make good such mistakes if any in the judicial decision, cannot be given to an unrelated and disjunctive set of minds of the executive having little or no legal acumen to determine or review the sentence as granted. 

Even though the principles of natural justice are applied at each stage of the trial and sentencing, the executive while deciding a case of pardon can go into the merits and examine the evidence. Even the Supreme Court regards pardoning to have elements of judicial determination and has therefore held that the mercy petitions are subject to the discipline of Article 21 and the principles of natural justice should therefore be grafted to it. Therefore, the decision of pardoning being a judicial determination should not be exercised by a non-judicial body alone.

Furthermore, the fact that decisions of the executive taken in pursuance of their power to pardon are subject to judicial review, it is therefore even more absurd to ultimately allow an interjection which the rationale behind pardoning power aimed at restricting.

The literature on this power suggests, that though pardoning does not amend the judicial record on the point of guilt, the fact that it takes place after a case has been judicially concluded and a sentence has been given consideration by the court, has a practical effect of a overriding decision of the executive on the point of sentence. That is to say, any change in the sentence by means of mercy would act as a modification, superseding the judicial determination of the court which it has arrived after rigorous trials and processes undertaken by the best in business judicial minds.

As per one view, vesting investigative and adjudicative powers in the executive threatens the rule of law, particularly the act of exercising these functions by the President/Governor and the Council of Ministers. It would therefore be improper to have this judicial determination in regard to the sentence imposed changed to a conclusion different from that recorded by the Court by a non-judicial authority. 

They argue that it is not possible for the judiciary to take into account factors that occur after the sentence has begun, such as the post-conviction behaviour and contributions made by the convict. However, the same factors are considered by the courts while dealing with cases on probation of offenders act. Therefore, this seems an absurd argument to make on the viability of the courts.

It is also argued that in matters of mercy, extra-judicial matters are taken into consideration on grounds of public good and welfare, but even then, the judicial determination of modifying the sentence cannot be devoid of a judicial mind being applied to it.

Lastly, though the condition is not so critical at present, an issue that needs to be looked at is self-pardons. Since the executive is empowered to grant pardons, there might arise a case that calls for a minister or an executive member to be put on trial. In such a situation, if a pardon is sought it will be loaded with bias and suffering from lack of objectivity if the executive is allowed to exercise its power.

Least to say, if pardon is granted in an indiscriminate manner, then it undermines the precedential value of judicial decisions and upset the equilibrium that should ideally exist between executive and judicial action. 

The use of this power exclusively by the executive to make a decision having judicial determinants could potentially destabilize the authoritativeness of decisions made by the judiciary and have a negative impact on the deterrent effect sought through such judgments.


This misapplication of the power principle of contempt and pardon, such that disharmony is created between two constitutional provisions where such disharmony does not exist in the first place is all the more frustrating.

We, therefore, recommended that there should be a constitutional amendment that still rests the power to pardon in the President/Governor but makes it exercisable on the aid and advice of the Supreme Court (excluding the quorum of judges sitting in that case). Though such advice may not be made obligatory for them to abide by.

To argue that provision of involvement of the judiciary in the determination of pardon again after the finality of the courts is achieved, will act as a mere appeal and in turn, would nullify the effect of providing for a scope of pardon is misconstrued. The judges are not inconsiderate ironed minds who would be in all probabilities unwilling to accept a request of mercy. If the situation allows and the amended authority deems fit, they can and will perhaps allow the said request.

With regards to the aspect of contempt, we submit that the solution to the problem described above may be found by way of allowing the executive to exercise his/her discretion in a self-determined manner as contempt is a predominantly objective determination.

That is, the President/Governor should be allowed to use his/her discretion to distinguish between situations where there is contempt. We find that such a view is more unbiased and satisfactory to the pallets of the citizens of this country.

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Legally Speaking

72nd Republic Day: Our living Constitution

As we celebrate the 72nd Republic Day, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention to the fact that Fundamental Rights and Fundamental Duties have to be given equal importance. Fundamental Duties, though non-justiciable, are rules of law.




“The objective of our Republic is to secure justice, liberty and equality for its citizens and to promote fraternity among the people who inhabit its extensive territories and follow different religions, speak various languages and observe their peculiar customs……Our Constitution is a democratic instrument seeking to ensure to the individual citizens the freedoms which are so invaluable. India has never prescribed or prosecuted opinion and faith and our philosophy has room as much for a devotee of a personal god, as for an agnostic or an atheist. We shall, therefore, be only implementing in practice under our Constitution what we have inherited from our traditions, namely, freedom of opinion and expression……”

– Dr. Rajendra Prasad.

26th January, 1950, was the day when India became a republic and its constitution (major part) came into force. This day is celebrated as the Republic Day as it was on this day in 1930 that Purna Swaraj was celebrated following the resolution of the Lahore Session. The Constituent Assembly took a total of two years, eleven months and seventeen days to complete the Constitution. The Constituent Assembly considered a total of 2473 amendments proposed to the Draft Constitution from 9th December, 1946 to 26th November, 1949. Dr. Rajendra Prasad, the President of the Constituent Assembly confirmed the Constitution and fifteen articles were immediately given effect to on 26th November, 1949, which were, the provisions of Citizenship, Oath and Affirmation by the President, Elections, Definitions, Interpretation, Powers of the President to Remove Difficulties and the Short Title of the Constitution. The rest of the provisions came into effect from 26th January, 1950 and the working of the Constituent Assembly came to a stop. The preamble, a part of the Constitution, also came into force on 26th January, 1950, which presents the intention of the framers of the Constitution and the principles of the nation.


On the occasion of 72nd Republic Day, it will be apt to highlight the fundamental features of the Indian Constitution which make it a living Constitution. The fundamental features of the Constitution are briefly discussed hereinafter. Part I deals with the Union and its Territory and Part II deals with Citizenship. The Fundamental Rights are provided in Part III of the Constitution. The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the object of the fundamental rights is to ensure the inviolability of certain essential rights against political vicissitudes. Fundamental rights are not distinct but are mutually exclusive, as has been held by the Supreme Court in a catena of judgments. Article 14 deals with Equality before Law and states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 19 provides for protection of certain rights regarding freedom of speech and states that all citizens shall have the right to freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions (cooperative societies), to move freely throughout the territory of India, to reside and settle in any part of the territory of India, and to practice any profession, or to carry on any occupation, trade or business. Article 21 provides for protection of life and personal liberty and states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 25 provides for the freedom of conscience and free profession, practice and propagation of religion and states that subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Article 30 provides for the right of minorities to establish and administer educational institutions and states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Article 32 provides the remedies for enforcement of the Rights conferred under Part III and states that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. Dr. B.R. Ambedkar while highlighting the central importance of Article 32 of the Constitution stated that I am very glad that the majority of those who spoke on this article have realised the importance and significance of this article. If I was asked to name any particular article in this Constitution as the most important – an article without which the Constitution would be a nullity – I could not refer to any other article except this one. It is the very essence of the Constitution and the very heart of it and I am glad that the House has realised its importance.

Part-IV deals with Directive Principles of State Policy and Dr. B.R. Ambedkar called the Directive Principles of State Policy as a novel feature of the Indian Constitution. The object of directive principles is to promote the ideal of social and economic democracy and they seek to establish a welfare state in India. The Supreme Court has held that the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles. Part IV-A deals with the Fundamental Duties that every citizen of India is expected to follow and states that it shall be the duty of every citizen of India – to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish and follow the noble ideals which inspired our national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India; to defend the country and render national service when called upon to do so; to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of our composite culture; to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; to develop the scientific temper, humanism and the spirit of inquiry and reform; to safeguard public property and to abjure violence; to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

Part V deals with the Union, which includes the Executive, the Council of Ministers, the Attorney General of India, the conduct of the Government business, the Parliament, the Legislative Powers of the President, the Union Judiciary and the Office of the Comptroller and Auditor General of India. Part VI deals with the States which includes Executive, the Council of Ministers, the Advocate General for the State, the conduct of the Government business, the State Legislature, the Legislative Powers of the Governor, the High Courts in the States and the Subordinate Courts. Part VII has been repealed by the Constitution (7th Amendment) Act, 1956. Part VIII deals with Union Territories. Part IX deals with the Panchayats. Part IX-A deals with the Municipalities. Part IX-B deals with the Cooperative Societies. Part X deals with the Scheduled and Tribal Areas. Part XI deals with the Relations between the Union and the States. Part XII deals with Finance, Property, Contract and Suits. Part XIII deals with Trade, Commerce, and Intercourse within the Territory of India. Part XIV deals with the Services under the Union and the States. Article 315 states that subject to the provisions of this article, there shall be a Public Service Commission for the Union and a Public Service Commission for each State. Part XIV-A deals with Administrative Tribunals and Tribunals for other matters. Part XV deals with Elections. Article 324 states that the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission referred to in this Constitution as the Election Commission and Article 329 states that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court. Part XVI deals with special provisions relating to certain classes.

Part XVII deals with the Official Language. Part XVIII deals with Emergency Provisions. Article 352 states that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation. Article 356 states that if the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State: Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. Part XIX contains miscellaneous articles and Part XX deals with amendment of the constitution. Part XXI deals with Temporary, Transitional and Special Provisions and Part XXII deals with Short Title, Commencement, Authoritative Text in Hindi and Repeals.


Dr. B.R. Ambedkar, in his speech on November 25, 1949, stated that if we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.

Justice Krishna Iyer once aptly enunciated that the Indian Constitution is the cornerstone of a liberated nation which lays the grand foundation of a great people’s political edifice of governance and spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character. An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways, — these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Article 51-A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.

As we celebrate the 72nd Republic Day, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention towards the basic principles of law in our society and call to mind the purpose which the law has in view to serve in a country governed by rule of law envisaged by the Constitution. Fundamental rights and fundamental duties have to be given equal importance. Fundamental duties, though non-justiciable, are rules of law. It is our duty to abide by the Constitution and carry out our fundamental duties effectively for instilling a sense of obligation and discipline amongst ourselves. We have to fulfil the objectives of the Constitution to dispense social justice to the people of our country. The Judiciary has played a magnificent role in upholding the Constitution and must always travel on the same path of delivering justice constructively. The Constitution obliges us to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. Therefore, on the 72nd Republic Day, let us pledge to uphold our living Constitution by remembering the words of Mahatma Gandhi, Father of our Nation, when he said that I shall strive for a Constitution which will release India from all thraldom and patronage, and give her, if need be, the right to sin. I shall work for an India in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class of people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men.

On the occasion of 72nd Republic Day, it will be apt to highlight the fundamental features of the Indian Constitution which make it a living Constitution. Part I deals with the Union and its Territory and Part II deals with Citizenship. The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the objective of these rights is to ensure the inviolability of certain essential rights against political vicissitudes.

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Legally Speaking


Simran Bhaskar



The word ‘prostitution’ derives from a Latin word called prostituere means to expose publically. It basically means providing sexual favors in return of money. Like other forms of violence it is generally committed against women by men. Moreover, the transgender community often goes unnoticed when we pin point the wrongs of the system of prostitution in India. Prostitution in India and across the globe makes billions in profits mostly by taking advantage of socially and economically vulnerable people.

The main cause of prostitution arises due to the orthodox Indian Society which sees women as an object or a commodity. Prostitution is also prevalent in caste system where marginalized women are often sexually exploited and left to rot in the degraded system. Lack of sex education, kidnapping and abduction are some cause for prostitution.


According to the Indian Penal Code, prostitution in it’s broader sense is not really illegal per se but there are certain activities which constitute a major part of prostitution are punishable under certain provisions of the act:

1. Soliciting services of prostitution at public places

2. Carrying out prostitution activities in hotels

3. Being the owner of a brothel

4. Pimping

5. Indulge in prostitution by arranging a sex worker

6. Arrangement of a sexual act with a customer

Immoral Traffic (Prevention) Act, 1956 (ITPA) defines prostitution as sexual exploitation or abuse of a female for monetary purposes and a prostitute is the person who gains that commercial benefit. This act was passed in 1956 and is also referred as SITA. This law essentially states that prostitutes are allowed to commence their trade in private but they cannot carry their business in public. As per the act, the clients can be arrested if found guilty of engaging in a sexual act in public.

A woman cannot indulge in commercial sex within 200 yards of a public place. Sex workers cannot be put under the ambit of the existent labour laws considering how distinguished their profession is but they have all the rights of any given Indian citizen and are entitled to be rescued and rehabilitated if they want.

Immoral Traffic (Prevention) Act, 1986 is an amendment of the original act. As per this act, the prostitutes are to be arrested if they are found soliciting their services or seducing others. Further, call girls are prohibited in making their phone numbers public. They can be punished for 6 months along with penalties if found doing so.

Clients indulging with a sex worker within the area of 200 yards of a public space can be imprisoned for maximum of 3 months with fines. In case, someone is found indulging in a sexual activity with a minor then, he/she can be jailed upto 10 years. Pimps and similar people who live from the income made by a prostitute are guilty as well. For that matter, if an adult man lives with a prostitute he can be regarded as guilty.

If he cannot prove himself to be innocent, he can face imprisonment between 2-4 years. SITA (1956) which was further amended to ITPA (1986) is an important law as according to the preamble of the act, the purpose of the act was to give effect to the Trafficking convention.The preamble refers to the law as An act to provide in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the prevention of immoral traffic in women and girls, enacted by Parliament in the Seventh Year of the Republic of India.

The constitutionality of ITPA was challenged in the landmark judgement of The State of Uttar Pradesh vs. Kaushalya. The facts enumerated in this case are that a few of the prostitutes were asked to be removed from their place in order to maintain the decorum of the city of Kanpur.

The High Court of Allahabad made the pronouncement that section 20 of the act abridged the Article 14 and sub clauses (d) and (e) of the Article 19(1) of the Indian constitution. The Act was held to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance.

The Act is also in consonance with the object sought to be achieved ie. maintaining order and decorum in society. The act focuses on achieving a public purpose to maintain the decorum and morality in the society and to rescue the fallen women and girls and provide them with rehabilitation and opportunities to the fallen victims so that they can become decent members of the society. The act seeks to criminalize the prostitution essentially and empowers the central government to form special court for trial of the offences under this act.

Article 2 of the Convention, the Parties to the Convention further agree to punish any person who: keeps or manages, or knowingly finances or takes part in the financing of a brothel; knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.

These offences mentioned in the convention and none of these laws mentions that a victim of the prostitution can be a offender. The purpose behind this was to punish the actual offenders who are involved in procuring, enticing or trafficking anyone for the purpose of the prostitution. The original international treaty aimed at prohibition and discouragement of any sort of sexual exploitation, thus stopping the trafficking of the persons into the prostitution.

However, it does not prohibit prostitution or commercial sex work by individual out of their consent and freedom. In India, ITPA does not directly prohibits the prostitution nor does it criminalizes it in its whole sense. Although, there are many provisions which discriminate against the sex workers and in fact, punishes them. The following sentences detail the main features of SITA: Section 2(f) defined prostitution as the act of a female who offered her body for promiscuous sexual intercourse for hire…

According to this definition, there is no mention of men or trans community. This establishes the punishment for upto 3 months for a woman who engages in prostitution within the 200 yards of the public place.

There is a discriminatory sentencing provision in the law where a woman can be imprisoned for upto one year, whereas, for the same offence, a pimp could only be imprisoned of upto 3 months. The biggest drawback about the law is that it only focuses on the street prostitution and other forms of prostitution were left without being acknowledged. Also, there is a very minimal punishment for the ‘middlemen’ of the industry. The closed door prostitution is somewhat inferred to be allowed but the law does not prescribe any legal safeguards or regulations and responsibilities for the protection of the sex workers.

The main problem with this provision is that it looks at the prostitution as immoral and indecent which is hampering the decorum of the society. However, the fact remains that engaging in sex work with precautions and regulations do not constitute any sort of harm on any individual.

Further, the only reason why prostitution is referred as something immoral and the sex workers are regarded as indecent solely because of how sex is a major taboo in our society and demand and supply of sex in a regulatory manner is something to be looked down upon.

The Indian society cannot digest the reality of the sexual violence happening because of the existent norms related to sex present in the society and people believing and continuing to thrive on these norms. The fact that the act tries to criminalizes the acts leading to the prostitution expresses the discomfort of the law at facing the real issue and makes the temporary and half hearted amendments in combating the issue.


There was a proposal made in 2006 to amend the Immoral Traffic (Prevention) Act . The amendment bill basically removes the provisions that penalize prostitution by soliciting clients. This proposal recommends enhanced punishment and an increased fine amount. It intends to criminalize the act of visiting a brothel for the purpose of sexual exploitation of trafficked victims with imprisonment of at least three months or a fine of Rs. 20,000 which has not been criminalized in the Act.

The bill constitutes authorities at the center and state level to combat trafficking. The term trafficking in persons has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution.

Article 21 of Indian Constitution The article states the protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to the procedure established by law.

In the case Budhadev Karmaskar v State of West Bengal

In this case, it was held that the sex workers are human beings and should be treated with humanity and dignity. Nobody is entitled to physically assault them.The judgement also highlighted the problems faced by the sex workers and their plight. Court is of the view that these women are compelled to indulge in prostitution not out of choice or pleasure but merely out of economic and social causes.

The court directed the central and state government to enroll the sex workers in vocational and technical courses and open rehabilitation centres for the better job opportunities for them. Immoral Traffic (Prevention)Act has incorporated Section 21 as a rule for the State Government to establish and maintain the protection homes and the houses should be regulated and licensed by them. There should be an adequate authority for investigation of the application for the protection homes. These licenses were temporary and non transferable. The state has powers to make ancillary rules in respect of license, management and maintenance of these homes or ancillary matters by virtue of section 23 of the act.

Article 23(1) also declares that traffic in human beings and the beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.

The issue of human trafficking is tackled in the IPC as well which prohibits the trafficking of women and girls into a forceful area of prostitution and have prescribed harsh punishments on the offenders. The IPC ennumerates that anyone who buys or sells or obtains the possession of anyone under the age of 18 years for the purpose of prostitution or illicit intercourse.. or for an unlawful or immoral purpose.. or knowing it to be likely that such person will at any age be employed or used for any such purpose.. or knowing it to be likely that such person will at any age be employed or used for any such purpose.. is to be imprisonment for upto 10 years.

The IPC identifies cross border trafficking into prostitution and provides that whoever imports into India from any country outside India any girl under the age of twenty one years with the intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

The provision related to rape under IPC also applies to the rape of a brothel inmate. The IPC defines the rape as an act of sexual intercourse with a woman against her will, without her consent or with her consent but under threat or fear od death or injury, or with her consent when she is not aware about the consequences of her consent or with or without consent when she is under 16 years of age.

The minimum punishment for rape is 7 years of imprisonment under IPC. These provisions are applicable to the brothel owners, brothel staff, and customers when they engage in sexual intercourse with minors or with women who are forcefully kept in the brothels.

Problems with the Indian laws and their purpose:

The main problem with these provisions are that the outlook towards prostitution is as something immoral and indecent and something which is hampering the decorum of the society. However, the fact remains that engaging in sex work with precautions and regulations do not constitute any sort of harm on any individual. Further, the only reason why prostitution is referred as something immoral and the sex workers are regarded as indecent solely because of how sex is a major taboo in our society and demand and supply of sex in a regulatory manner is something to be looked down upon.

The Indian society cannot digest the reality of the sexual violence happening because of the existent norms related to sex present in the society and people believing and continuing to thrive on these norms. The fact that the act tries to criminalizes the acts leading to the prostitution expresses the discomfort of the law at facing the real issue and makes the temporary and half hearted amendments in combating the issue.

Another main aspect of Indian laws related to the prostitution which goes unoticed is that these laws do not acknowledge that it is not only women who are victims of sexual exploitation but it is men and transgender people who suffer with sexual violence, exploitation and oppression.


There have been a lot of discourse regarding giving the legal status to the prostitution in India. It is observed that it is best to regulate the prostitution since, the chances of its abolishment are negligible. Various countries like Canada, France, Germany, Denmark, Wales etc. have regulated and legalized the prostitution.

In Germany, in fact the profession is not only legal but taxed as well where the brothels are allowed to advertise and send job offers through HR companies. Germany had also passed a latest legislation in 2016 which purposed at protect prostitutes by requiring the permit for all prostitution trades and a prostitute registration certificate.

This sort of system where the profession is regulated and the safeguards of the sex workers are taken into consideration, it tends to do less harm to the sex workers and better implementation of laws protects the system from abuse and exploitation. These sex workers are not only exposed to dangerous sexual transmitted diseases like HIV AIDS but they also, suffer from police brutality,dip in income, harassment etc. In 2009, Supreme Court itself suggested the prostitution to be legal.

Here are the following reasons for which prostitution should be legalised:

1. Legalisation of prostitution will protect the minors from being vulnerable to the sexual exploitation. There are almost around 10 million children who are pushed into prostitution, worldwide. Child prostitution is a bitter reality of almost all the countries but in Asia and South America, the situation is worse. Strict regulations in the industry can ensure the prohibition of the minors from the system.

2. Regulated health check ups of the sex workers will ensure the curbing of the sexual transmitted diseases specially, AIDS which is just so common among the sex workers. Adequate birth controls will ensure unwanted pregnancies and curbing of other health hazards. Regular health check ups and strict guidelines will ensure the cleaner and hygienic working conditions. A compulsory provision of condoms will also, be beneficial for the sex workers and the customers both.

3. Legalization of the prostitution will enhance and upgrade the system. There will be a removal of middlemen and pimps from the system and the sex workers will have more wage earning and the criminal and exploitative factors would be reduced to negligible.

4. It will reduce the sexual violence, rapes and other sexual assaults as people will resort to a legal and an easier alternative to satisfy their sexual urges. An example of Queensland can be taken where the region experienced 149% increase in rape rate after the closing of brothels.


Prostitution in India constitutes around 8.4 billion dollar business. Legalizing and taxing the process will be like an incentive for the government. Rights of the workers will be protected. Even though, the sex workers do not come into the ambit of usual labor laws still, they should get all the rights of a citizen and a laborer.

In a society, where prostitution has been an age old profession and is continuing to flourish as a business area, it will be ignorant to put a blind eye on it and pretend the non existence of the system and its flaws. Decriminalizing the sex work with proper rules and regulations and making it legal will ensure a better life for sex workers with better wages, health security and protection.

Not only this but as a society, it will be a progressive step which shall eliminate many social evils from the society like child prostitution, rape etc. Sex trade is a very evident reality of our country and by recognizing it as a legitimate profession with certain rules and safeguards all the involved parties can receive guaranteed benefits. A better and inclusive legal framework and implementation of all the safeguard methods will only cater to the betterment of the society.

Legalisation of prostitution will protect the minors from being vulnerable to the sexual exploitation. There are almost around 10 million children who are pushed into prostitution, worldwide. Child prostitution is a bitter reality of almost all the countries, but in Asia and South America the situation is worse. Strict regulations in the industry can ensure the prohibition of the minors from the system.

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World of intellectual property in and around e-sports

The E-Sports Federation of India (ESFI), a non-profit organisation, promotes and organises gaming events and help train the athletes. It will not be correct to call them gamers as there is a significant difference between gaming and e-sports. The latter requires a lot of concentration, hand-eye coordination, and decision-making skills. The level of preparation by e-sports athletes is same, if not more, as the physical sports athletes.




Electronic sports or e-sports is an emerging industry where competing games are played via electronic systems online. These are mostly multiplayer games where the players can be anywhere in the world connected through internet. The tremendous growth in the e-sports market has led to major leagues being organised where audiences are sold tickets to watch the game, exactly like physical sports. This has become a million dollar industry and attracts younger generations of people because of the use of virtual and augmented reality. Singapore opened an e-sports academy to train students to become e-sports professionals.

The E-sports Federation of India (ESFI), a non-profit organisation, promotes and organises these gaming events and help train the athletes. It will not be correct to call them gamers as there is a significant difference between gaming and e-sports. The latter requires a lot of concentration, hand eye coordination, and decision making skills. The level of preparation by e-sports athletes is same, if not more, as the physical sports athletes. Regardless of the popularity and the opportunities that they provide, the disputes between the sports industry and the underlying intellectual property rights have always been there. The lack of regulations with respect to technology in India has always been a matter of concern. Intellectual property protection of any sport is a complex issue to decide ‘who owns what’ and ‘what leads to infringement’ as it includes various elements like the performance, broadcast and the ownership of the game itself.

 The company that owns the game has a set of rights on advertising, promoting, and licensing. The need for a regulatory framework has grown significantly and the same has been constantly debated whether it should be included under the scope of physical sports or if it requires a new legislation.


 The International Olympics Committee declared ‘competitive e-sports’ as a sporting activity in 2017. Later in 2019, the committee changed its stance on the subject by shifting focus to the physical and mental health of the players in a game and how a physical sport promotes an active lifestyle as opposed to online gaming.

 The IOC has also raised concern on the level of violence in esports. South Korea, Japan, and Malaysia are among the many countries that have sports federations now to support, coach, and organise competitive events for e-sports. The United States Government is even granting visas to e-sports professionals.

 E-sports was also seen as a demonstrating sport in the 2018 Asian Games. India is not far behind in the field with ESFI organising various leagues in different cities and for different games. It can be said that India may soon have a governing body for the same.


Video games have always been popular among millions of people for entertainment purposes. With the advent of technology, online games like FIFA, League of Legends, DOTA, etc. became mainstream. The players who were only considered consumers before are now making profits by playing these online games in the comfort of their home. The athome video games have now become a major event with advertisers and sponsors investing their money in it.

The major source of income for organisers is selling tickets and advertising different brands in the tournaments. To a common man, it looks like a person (here, the e-sport player) paid for a product (here, the e-sport) and is now using it for himself as he owns it. Looking from a legal perspective, there a number of intellectual property rights associated with any product, even an e-sport. Intellectual property protects inventions, literary works, artistic works, designs, logos, etc. Before getting into the types of IP protection, it is important to understand the developer-player relationship with respect to the intellectual property of the game.

A developer is the person who owns the game and the customer is the one who downloads or purchases it. The customer enters into an end user agreement or a limited license which allows him play the game or in other words, use the developer’s IP. Each developer can put different conditions in their agreement ranging from not using their game for commercial purposes to not allowing any modification in the game. The developer has the complete ownership of the game and has the power to allow tournaments and streams. This gives rise to the question as to how the players earn money via streaming on channels like YouTube.

The streaming channels pay a person according to the number of views that they have on their video and the number of advertisements that they put in their stream. The gamers cannot earn anything from playing the game as it is protected under copyright. The developers also have the right to terminate your license at any point. The superior position that the owners enjoy gives them an unfair advantage over the professional players who want to make a living out of e-sports. The different types of IP protection that an e-sport enjoys are:


  1. Copyright protects the right of creators and is considered as a reward for their creativity. It gives them the exclusive right to produce, publish or perform their work and prohibits others from doing so
  2.  Algorithm and Audiovisual elements.
  3. Although there is no specific legislation dealing with e-sports in India, copyright protects different elements of the game. The source code of the game comes under the scope of computer programs, the audio-visual part of the game can is a cinematographic work, the theme of the game and any type of music in it, all come under copyright protection.

In United States, computer programs are patented and therefore, e-sports algorithms are given patent protection there.


 The protection of performance rights is more of a question mark than a right as of now. Performance rights refer to the rights of a performer prohibiting others from broadcasting their performance without their consent. The Copyright Act provides this protection but gamers are nowhere mentioned. It can be compared to a game of chess where each player has strategic moves which are technically his intellectual property but not under the scope of protection to prohibit others from using that move.


Furthermore, right of producing copies is exclusive to the developer of the game. The question to answer here is whether it will be copyright infringement if tournament organisers produce copies of the game and the answer is yes.Developers are the only ones with broadcasting and reproducing rights and organisers cannot even hold a commercial tournament without the consent of the developer. The athletes are more dependent on these owners for their very limited earning.


A trademark distinguishes the goods and services of one business from another. The objective of a trademark protection is to prevent unfair competition and the reputation of one business to be affected by the other. In the case of e-sports, the name of the game, its logo, and it slogan is under trademark protection. It is an exclusive right which prohibits others from using the same name or design.


 A patent protects inventions which are novel, have an inventive step, and are capable of industrial application. Here, patents will protect the technology that is applied in games, like joysticks or any online architecture where the game runs.


Intellectual Property and Competition law are closely related. With disputes arising in IP protection, it directly impacts the competition in the market, especially where one company has a dominant position in the market. Therefore the price of the games or their licenses need to be regulated. It has to be ensured that one developer does not stop other competitors from entering into the market, or they should not change their prices to gain market share or sell a substitute game. Therefore, the agreements that the consumers or the athletes agree to should not be arbitrary. The developers should be prohibited from exploiting their IP rights for an unfair competition.


Intellectual property protection is a controlling legislation which answers the question of ‘what can be shared and what cannot’. With the competitive-sports industry realising its potential, it has become necessary to protect the rights of consumers. With traditional physical sports like football, hockey, etc. the ownership of the game is not an issue. But the online game or the e-sport is owned by a developer who has the protection of copyright to prohibit others from using his work. The sports industry, as a whole, has become a big corporation with one goal of making profits.

The commercialisation of the industry has increased the need for protecting intellectual property rights associated with it including, trademarks, copyrights, advertising rights, etc. There is clearly a need for a specific legislation to regulate the still developing world of e-sports, it will take a long time in India to actually have one. This should not, in any way, ignore the fact that the current intellectual property laws, while protecting developers, must also provide for the rights of the e-sports players.

The first step would be to give clear grounds of termination in the limited license to the players as well as the organisers if any tournament is cancelled. Another way to help the players is compulsory licensing of copyright which will allow consumers or professional players to make a few modifications in the game. Compulsory licenses promote a fair chance for all parties involved by rewarding the owner, and giving access to the player. It would also promote fair competition among the developers and tournament organisers by providing multiple choices. For compulsory licenses to be a successful alternative solution, there should be reasonable prices for royalty as the in-game purchases are also a big revenue point for the owner of the game.

Intellectual property and competition laws are closely related. With disputes arising in IP protection, it directly impacts the competition in the market, especially where one company has a dominant position in the market. Therefore, the price of the games or their licences need to be regulated. It has to be ensured that one developer does not stop other competitors from entering into the market, or they should not change their prices to gain market share or sell a substitute game. The agreements that the consumers or the athletes agree to should not be arbitrary.

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Legal hurdles to vehicle modification in India

Anu Bhuvanachandran



At least thirty out of hundred vehicle owners wish to see their vehicles stand out in crowd or traffic. Another section wish to take their vehicle even beyond the Mount Everest crossing Niagara falls. For the first category, their vehicle shall draw attention of the crowd to them; whereas the second category is keen on utility of the vehicle that they purchase. Even though advertisement shows vehicles easily mounting to rough terrain, it will not always serve the purpose. Vehicles are not always bought to drive in Highways and plains. There is the passion of a driver that always hidden in his/her vehicle.


The Motor Vehicle Act regulates alteration of vehicles vide s.52. The section says that all owners of the vehicles are absolutely restricted to alter their vehicles in respect that they deviate drastically from the features imbibed by the manufacturer. Whereas certain alterations can be made seeking permission from the registering authority. The section provides powers to central and state governments to make rules and regulations on the same.

In the Motor Vehicles (Amendment) Act 2019, s.2(i)(1) is substituted with adapted vehicle which means a motor vehicle either specially designed or constructed, or to which alterations have been made subsection (2) of the section 52 for the use of a person suffering from any physical defect or disability and used solely by or for such person. Under section 32, the owner has to get approval for altering the vehicle. In section 52 second proviso is substituted with “the central government may prescribe specification, conditions for approval, retrofitment and other related matters for alteration of motor vehicles and in such cases, the warranty granted by the manufacturer shall not be considered as void for the purposes of such alteration or retrofitment.” If the owner of the vehicle after registration alter or to cause alteration it shall be abide by the rules of the central government. In addition there are array of rules crafted by the central government and the state governments.


Under section 191, sale or alteration of vehicle contravening the Act is recognized as an offence. The exception available is that if the person proves he had reasonable cause to believe on the act done so. Section 194 penalizes driving vehicle exceeding the permissible weight.


The Regional Transport Officer & Ors. V. K. Jayachandran & Ors is the case in which it is ruled that alteration of motor vehicle is illegal. The judgment was delivered by Hon’ble Justice Arun Misra and Justice Vineet Saran. The case is a Special Leave Petition against the judgment by the Hon’ble High Court of Kerala allowing the structural modification of vehicles as per Kerala Motor Vehicle Rules. Let us analyze whether the verdict goes totally against the vehicle modification or has put some limits on the same.

Para 27 of the judgment runs as follows:

“The very object of the amendment of section 52(1) by Act 27/2000 is to prohibit alteration of a vehicle as provided including the change of tyres of higher capacity.”

“The proviso to sub-section (1) permits modification of the engine, or any part thereof, of a vehicle for facilitating its operation by a different type of fuel or source of energy including battery etc., such modification is permissible to be carried out subject to such conditions as may be prescribed.”

That is any alteration is possible except what is said under section 52 of the Act.


a. Engine Modification- You need a prior approval from RTO.

b. Tyre Modification- You can change from base variant tyre to top model variant.

c. Fittings: door protectors, rain guards etc. can be installed.

d. Colour Modification: You need prior approval from RTO

e. Head and tail lights: LEDs and auxiliary lamps allowed except said illegal by the state/ central government.

f. Engine fuel change: You are free to use CNG instead of petrol or diesel.

g. Suspension variation/ modification: allowed to a few inches for high performance.


a. Widening of tyres is illegal on the reason that it protrudes the body.

b. Loudness of horn: limited to 100 decibels

c. Width and length of vehicle: You are not allowed by the government to turn your car to an SUV by modification.

d. Width of alloys: it is illegal for the reason that lip of the alloy protrudes the tyre edge.

e. Tinting windows: Supreme Court said a big NO to it.

f. Modification of vehicle to a one with high capacity: NO huge horse power allowed other than what specified by the manufacturers.


We watch n number of vehicle advertisements in a day. Google projects extra ads based on our Google search history. In the ad, the expectation on utility of the car may take us to another level. But the real hazard starts when we actually hold the steering assuming the expected utility projected by the advertisements. For example, an advertisement showing the vehicle easily go through the rough terrain. In reality roughness of the terrain cannot be expected, and sometime the same vehicle may stuck by the rock, or breakdown in sludge or its tyre punctures at the middle of a mountain or a hill. I am not talking about the vehicle which is modified and used in race tracks.


I understand that I should not trouble public with my vehicle. The present situation is even though there is no chance to trouble, I am bar from modifying my vehicle due to something apart from my safety and duty to the public.

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Legally Speaking

A soft state and judicial populism: A match made in hell

The government’s lack of a proper response mechanism to what I would call, the ‘Shaheen Baghaisation’ of matters of law and policy, has effectively created a new normal where at the drop of a hat the national Capital is laid to siege and life, ‘normal’ or not, comes to a grinding halt. Without a doubt people who have an issue with the policy of the government have the right to express their grievances, but where does one draw the line between paying heed to aggrieved parties and succumbing to populism which involves issuance of barely veiled threats of violence and disruption?

J. Sai Deepak



Over the past several weeks, a lot has been written about the farm laws, the concerns of farmers of a few States and the Central Government’s position. Predictably, the matter reached the Supreme Court, and instead of examining the challenge to the farm laws on legal/Constitutional anvils, the Apex Court chose to wade into extra-legal issues which were clearly outside the scope of its purview, such as negotiations between the Government and the protesting farmers. This reminded me of the following observation of Justice Felix Frankfurter on the standard for a judicial decision from Alan Barth’s book Prophets with Honour: Great Dissents and Great Dissenters in the Supreme Court:

“A Court which yields to the popular will thereby licenses itself to practice despotism, for there can be no assurance that it will not, on another occasion, indulge its own will. Courts van fulfil their democratic responsibility in a democratic society only to the extent they succeed in shaping their judgements by rational standards, and rational standards are both personal and incommunicable.”

While I do believe that the Supreme Court’s intervention strategically served to calm frayed tempers especially in view of the impending celebrations for the Republic Day, the intervention has, in my humble view, come at the cost of institutional restraint which is implicit in the doctrine of separation of powers, and may have sowed the seed for more such protests and placatory interventions in the near future. The Government was given a Hobson’s choice between voluntarily putting on hold the implementation of the farm laws and inviting a stay on their implementation by the Supremes. That this goes beyond judicial activism and enters the scary realm of judicial populism, which has been in the making for some time now, appears to be the general sombre consensus.

To make matters worse, the Government’s lack of a proper response mechanism to what I would call, the “Shaheen Baghaization” of matters of law and policy, has effectively created a new normal where at the drop of a hat the National Capital is laid to siege and life, “normal” or not, comes to a grinding halt. Without a doubt people who have a grievance with the policy of the government have the right to express their grievances, but where does one draw the line between paying heed to aggrieved parties and succumbing to populism which involves issuance of barely veiled threats of violence and disruption?

The only unimaginative response of the Government to this new normal has been to hold endless parleys while others suffer. This coupled with the Supreme Court’s extra-constitutional intervention, while perhaps necessary, portends a bleak future for general respect for law and order and reinforces the fact that Bharat is a soft meandering State, not just from without but also from within. The so-called vibrant and robust nature of Bharat’s democracy is usually tested on the anvils of a smooth transition of power once in five years, but that doesn’t complete the picture even remotely. It must be tested on the anvils of its ability to shun populism in matters of law and order, which includes the judiciary’s steadfast commitment to not offer an olive branch to belligerence that masquerades as free expression. If the State cannot even guarantee the most basic expectation that comes with being a State i.e. it is the only entity to wield force within its territory, it is time for such a State to introspect as to what it truly stands for and what can common people expect from such a State, if at all.

I don’t mean to sound like a pessimist because that goes against the grain of my nature but I do believe that until uncomfortable truths are squared up to, neither an individual nor a society has a chance at betterment. I do believe that Bharat has been hurtling from one crisis to another without drawing the right lessons because its approach to the future smacks of utter ad hocism, captured by that uniquely Delhi word “jugaad”, without any thought spared for long term fundamentals. For a country which has grand aspirations or ambitions of being a Vishwaguru, it seems to be doing a terrible job of being a Guru to itself before it can project itself as the beacon of hope and enlightenment to the rest of the world. After a long time, this country has witnessed a non-fractious electoral mandate for two consecutive terms. But has this opportunity been made the most of to get the fundamentals right before we let our imaginations soar? For once, I am agnostic because I genuinely don’t know and I wish I could feel more positive.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Behind closed doors and immuned by law

The Supreme Court, in its judgement in Anwar Ali Sarkar and Budhan Choudhary, noted that just about every categorisation under Article 14 of the Constitution shall be limited to a test of reasonableness which may be carried only if the definition of any categorisation has a fair connection with the purpose which the act aims to accomplish. Exception thwarts the intent of Section 375 of protecting women and prosecuting those involved in the barbaric acts of rape.



Domestic abuse is a chronic crisis throughout India, and this has only intensified during recent decades. In India, nearly 70 % of people were victims of domestic abuse. As per the report, in India, a woman is raped every 16 minutes, and every four minutes, she experiences cruelty at the hands of her in-laws. The document was troubling, but not entirely unexpected. A 2015-16 National Family Health Survey data analysis shows that an approximate 99.1 percent of incidents of sexual harassment go unreported and that the average Indian woman is 17 times more likely than others to experience sexual abuse by their spouse. Different legislation aimed at shielding women from domestic sexual assault and sexual abuse has largely remained unsuccessful, despite serious changes to the penal code.Anyway, what happens if legislation empowers the culprits with immunity and jeopardizes the victims?

Yes, the contradiction described above is not a mere myth but resides in the Indian Penal Code as a truth. One of the Indian legal administration’s most disturbing and oppressive clauses is that of marital rape. Which is perfectly legal in Indian criminal statutes. The definition of rape in Section 375 covers all types of sexual assault concerning non-consensual intercourse with a woman. It points out in some detail the various circumstances in which permission is either non-existent or vitiated. An exception occurs at the end of the clause of the section. It implies, enough, “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.” According to existing legislation, a woman is presumed to give her unconditional consent to have sexual intercourse with her husband after getting into a marriage. Although forced sexual intercourse in marriage is considered a criminal act in practically every country in the world. India is among the handful of counties that have not yet criminalized marital rape.

Actively there have been writ petitions in the Hon’ble Supreme court and High courts in India concerning the constitutionality of that very exemption. Section 375 (Exception) effectively provides a clear description not only between consent granted by a married and unmarried woman, as well as between married women under the age of 15 and over the age of 15 years. Such a designation isn’t really subject to the ‘comprehensible differential’ test and is, thus, prima facie contrary to the right to equality listed in article 14. In 2017, Independent Thought, an NGO, filed a PIL questioning this incomprehensible distinction and arguing that this defense should also be afforded to married women over 15 years of age. To a considerable point, the Supreme Court complied with these averages and increased the age cap under Section 375 from 15 years to 18 years. This decision, in particular, led to a spike in the number of other writs challenging the constitutionality of the exception itself.


The Constitution of India Under Article 14 safeguards that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” While our Constitution provides equality for all, Indian criminal law is discriminative towards female victims who have been raped and assaulted by their spouses. When in the 1860s IPC was drafted, a married woman was not known to be a separate legal body. Rather, she was deemed to be her spouses’ possession inspired by the theory of Coverture. Coverture is a legal doctrine which was established in the common law of England, where after marriage the rights of women cease to exist and duties were assumed by those of her spouse, in compliance with the legal standing of women were merged with that of husband. During the drafting of the IPC, India was under British rule and its criminal laws were strongly influenced by English rules of Victorian standards. Under Section 375 there is an exception, which effectively exempts the conduct of husbands against their spouses from being called “rape” offence, which was conceptualized on the basis of Victorian patriarchal traditions that did not consider men and women as equivalent.

As of recent, we have moved towards equality, somewhat at least, to protect the rights of women from sexual harassment and rape, but we have failed miserably in proving equal rights to married women entrusted under article 14. The exception under section 375 discriminates against married women by excluding them equal protection from abuse and sexual assault. It categorizes women on the grounds of their marital status which immunizes the actions of men against their spouses. By doing so, it makes it possible for married women to be abused for no reason except their marital status.The categorization created in section 375, between married and unmarried women is indeed contrary to Article 14 because as far as the difference is concerned it has no reasonable connection with the fundamental intent of the article, which negates all kinds of discrimination.

Therefore, any statute that defines a designation that is inappropriate or incidental to the objectives of the law is found to be beyond the legislative structure. As for what is fair, it will still focus on what the judges thought and a new interpretation of law and rationality will arise with any new generation of judges, thereby rendering the Constitution a living text. In order to minimize gender-biased discriminatory care, it is important to stop prejudices based on gender. It is also important that caution be taken when applying the equality test so that the stereotyping enforced by the patriarchal system does not predetermine what is fair classification section 375 of the IPC criminalizes the offense of rape and protects a woman against forceful sexual intercourse against her will and without her consent. The provision hereby grants women immunity from criminal attacks on bodily autonomy and shows the role of the State in punishing those who abuse this bodily autonomy. It is also correct to claim that it aims to preserve the right of choice of women as independent persons.

The Supreme Court in its judgment in Anwar Ali Sarkar and Budhan Choudhary noted that just about every categorization under Article 14 of the Indian Constitution shall be limited to a test of reasonableness which may be carried only if the definition of any categorization has a fair connection with the purpose which the act aims to accomplish. Exception thwarts the intent of Section 375 of protecting women and prosecuting those involved in the barbaric acts of rape.

Married women require protection under the law in their private worlds, just as men and single women do. Although the majority of section 375 of the IPC remains concerned with maintaining a victim’s right. On the other hand, such a right is taken back after marriage and the focus of the statute moves back to protecting the offender of the crime of rape. It completely removes the freedom of conscience of a woman and indeed essentially deprives her of personal rights and her identity. The designation is therefore redundant, incoherent, and in violation of the mandate laid down in Article 14. For the purposes of the law, the removal of the protection of Section 375 of the IPC from victims of the crime of rape purely on the grounds of their marital status is meaningless.

The repercussions of rape are the same for each victim. In fact, section 375 allows husbands to engage in sexual intercourse with their wives forcibly, as they realize that their actions are not deterred or penalized by statute. Since no logical connection has been drawn for the distinction formed between married and unmarried thus the test of reasonableness doesn’t exist which is contrary to Article 14. Besides that, it is increasingly difficult for those married women who are economically and morally dependent on their husbands to avoid oppressive circumstances.

Article 15(1) of the Indian Constitution states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. The discrimination in section 375 is the antithesis to article 15(1). The onus is on the state to respect the constitution and put an end to discrimination done towards thousands of married women every day.

Marital rape which is not criminalized under any law in India is a blatant abuse of article 21 as it gives no rights to women to protect herself from being raped by her own husband. Article 21 of the Indian Constitution is one the most important part of the constitution which upholds that any citizen or alien being in India is entitled to the Right to life and personal liberty. The Apex court has widened the aspects of article 21 by interpreting it beyond and between the lines of the article. In recent times the court has interpreted that right to health, right to dignity even during performing death rites, safe environment, and clean air, all fall under the ambit of article 21.

In Justice K.S. Puttuswamy (Retd.) v. Union of India, it was held that privacy is a fundamental right and also covers decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations. The court in the aforementioned case did not draw a difference between married or unmarried women and anyone else, the court mentioned it for each and every citizen of India. Thus, any kind of forced sexual intercourse is an infringement of a fundamental right, and the right to privacy and is not bound by the theory of Coverture. The supreme court ruled that privacy starts with the human body and that the principle of cognitive autonomy is at the core of the right to privacy – such that, it is the right of each person to determine when and for what reason his body will be used. And as people cannot sell themselves to slavery, nor should they be assumed to have waived their right to decision-making at the altar of marriage.

Earlier, privacy was conveyed by expressions that the state cannot access the household or access relations. Thus, the men were immune to oppression, unjust power, and violence within the house of an individual.

Should the state really penetrate the sphere of the home? A reaction to this is a “yes”. In the cases of cruelty, divorce, and dowry, it already does, then why put the most atrocious and egregious offense beyond the control of the State and legislation. Why does the marital rape zone ought to stay outside its pale? At the time of the union, the state that does not involve itself but serves as an arbitrator after divorce must secure the right of a woman to her body. With privacy judgment, the scope of privacy has also ventured inside the family and houses of individuals, and communities. However, criminalizing marital rape is just not an issue relating to the privacy of one’s bedroom, it involves ensuring dignity, freedom, and free consent as much as in a bedroom as in a public space.


The continued immunity from the scope of statutory law from marital rape sustains the presumption that the wife is the sole property of the spouse. As stated by Katherine O’ Donnovan: “Its immunity from the purview of the criminal law is explained on the grounds that the female victim is a wife. This justification can be understood in the context of the dominant familial ideology and female sexuality which treats a wife as property and as having no sexual agency or decision making in sexual activity within the marital contract”.

It is proposed that in India, marital rape should be criminalized, because that can be done by applying an approach to violence against women based on individual rights. Indian women’s groups have managed to raise public consciousness and introducing domestic violence laws, but marital rape has not been fully criminalized by removing the difference between marital rape and rape.Yet marital rape will not be criminalized or prosecuted until lawmakers and the Society respects the personal interests of women within the marital framework.

Principles on the sexuality of women, and therefore ideas on non-marital and marital sexual violence in Indian culture, stem from the notion of gender, embarrassment and family’s reputation, rather than the rights of women and individual autonomy. If the lawmakers see rape and sexual assault against a woman and her individual and bodily dignity and humanity, then marital rape and penalty would be a legal offense.

In aims to introduce a changes to the current legislation, we can use a semantic method to individual rights in working to criminalize marital rape in India, even though marital rape is not a government’s problem until society and lawmakers realize that women have individual rights in married life.

A very recent TV show “Criminal Justice: Behind the closed doors” written by Apurva Asrani shows a lawyer who was murdered by his wife late in the night with a knife. The lawyer was one of the “best” lawyers and was a very respected member of society. As the murder mystery folds, it is discovered that the lawyer was raping his wife for last many years and was indulging in non-consensual sex. Due to the taboo and “SHAME”, the victim never opened up.

The plot of the show has an uncanny resemblance to reality. Most of the rapes are not done by strangers, it is someone familiar and known to the victim, owing to such familiarity, the victim is scared to speak up. In the case of marital rape, the victim is none other than the wife and it is seen almost all times that they don’t speak up due to fear of disbanding of the family and the SHAME that it will bring upon them in society.

The exception in article 375 for marital rape is arbitrary and gives undue advantage to men. Getting away with this exception is the only way to let such victims speak up and make sure the accused are well dealt with by the law. Striking this will not be an infringement of privacy rather it will reinstate the foundation of article 21 by giving dignity and much-needed equality to the women who are subject to marital rape.

For the women who have been abused and assaulted, marriage for them is-:“Abandon all ye hope who enter here”

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