Month: March 2014

Categories
Human Rights

Rape shield: Prohibit use of victim’s sexual history in rape trials

SuhasaniRao_RainmakerfacultyUnderstanding the need for greater awareness to deal with sexual offences has come into focus over the last two years. The law in this regard is changing. However, there still remain some gaping holes in a framework that should be comprehensive. This article explores some of the issues that remain unaddressed by the current laws in force, in India, concerning sexual offences.

Rape Shield Laws

In India, victims of sexual offences are guaranteed anonymity. Under Section 228A of the Indian Penal Code, 1860, disclosing the identity of a victim of certain sexual offences is a crime. Till as late as 2003, it was lawful to bring up the previous sexual history of a victim of rape in order to establish consent. In 2003, a provision of the Indian Evidence Act, 1882 (“Evidence Act”) was deleted in a move towards providing protection to the victims of rape. Further, Section 146 of the Evidence Act now prohibits the questioning of a victim of rape along the lines of her previous sexual history in order to prove consent, in a rape trial. These provisions together, provide a limited rape shield in the Indian legal framework.

Rape shield laws limit the ability of defendants to cross-examine complainants in rape trials about their past sexual history. They also prohibit the disclosure of the identity of alleged rape victims.

SexualHarassmentAtTheWorkplaceMOOC2The philosophy behind these laws, firstly, is that the prior sexual history of a complainant is irrelevant to the question of whether an offence of rape can be established. The facts of the particular instance should be the only evidence that determines guilt. They provide an extra layer of protection to “victim blaming”, the phenomenon of holding the victims of crimes partially or even completely responsible for the rape. The violation of their anonymity and the disclosure of the identity of a rape victim often lead to more violation through increased scrutiny and the stigma attached to the offence of rape. Moreover, given that sexual offences violate the most fundamental right of a human being to exist in peace with full bodily integrity, rape victims often feel a deep sense of fear and trauma when identifying their attackers. Maintaining the anonymity of rape victims is therefore also aimed at providing victims with a sense of security when noting their testimony.

Rape shield laws around the world

These laws trace their origins to the 1970s and 1980s in the United States of America when most of the states provided different levels of protection for rape victims such as mandatory anonymity and restrictions on the admissibility of the previous sexual history of victims as evidence in rape trials. Since then, rape shield laws have been formulated in many jurisdictions. In the United Kingdom, the Youth and Criminal Justice Act of 1999 prohibited the use of a victim’s sexual history as evidence in a trial. In New Zealand, a rape victim’s sexual history has to be vital to the context of the trial for it to be permitted in evidence. Otherwise, the law prohibits the use of such evidence. Similarly, in Australia, rape shield protection is applicable in all territories. Even Ireland, a fairly conservative jurisdiction, has rape shield protection for victims of sexual offences with very limited exceptions to the prohibition of admissibility of the victim’s sexual history as evidence.

Conflict with fair trial rights

Often however, rape shield laws present a conflict with the defendant’s rights to a fair trial, including the defendant’s right to confront the complainant and challenge the veracity of the allegation. The rape shield law in the United Kingdom for example, was read down by the House of Lords, holding that a law that bans juries in rape trials from hearing evidence that an accused had a previous sexual relationship with the accuser breached his right to a fair trial.

Thus, most rape shield laws are couched in negative terms, completely excluding the rape victim’s sexual history from being introduced as evidence. Thereafter, exceptional cases are listed where such evidence may be introduced, notable among them being situations where the defendant’s constitutional right to a fair trial may be violated.

The argument for some measure of anonymity of the defendant in trails of sexual offences is finding some ground in current debate as well. It is opined that it is necessary to keep the identity of the defendant under wraps, at least until the judgment in the case is declared. This is because the stigma attached to sexual offences can deeply affect and destroy the lives of not just the direct victims of the offences, but also the relatives and family members of the defendants.

Absence of a rape shield law in India

Indian laws provide limited protection to victims of sexual offences by prohibiting the disclosure of their identity. The need for a rape shield law in India needs to be seen alongside efforts to combat other types of secondary victimisation of rape victims. Rape victims in India would often be subject to insensitive examination and humiliation by public authorities such as medical examiners and law enforcement professionals in charge of investigating the offence, including the “two-finger test”, (“TFT”) involving a physical examination by a medical practitioner of the rape victim’s genitalia. (In India, a man cannot be a victim of rape). The medical practitioner would insert two fingers into the rape victim in order to establish the “laxity” of her muscles and determine whether the victim was “habituated to sex”. A finding that the complainant was habituated to sex would assist the defence. In fact, in such cases, the defendant would claim that any sexual intercourse between the victim and himself was consensual since the victim was “used to sexual intercourse”.  The pervasiveness of the two-finger test meant that successful prosecutions for rape were limited to instances where the victim was a virgin or at least perceived to be so, at the time of the occurrence of the crime.

The Supreme Court of India has repeatedly grappled with the TFT and has had many a scathing opinions on its applicability. A decisive change of the law occurred last year in Lillu v. State of Haryana in 2013. The Court outlawed the TFT in the following words: “…., the two finger test and its interpretation violates the right of rape survivors to privacy,  physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

In light of this judgment, on December 16, 2013, the Department of Health Research under the Indian Council of Medical Research issued guidelines to prohibit the use of the TFT in forensic medical examinations of victims of rape. This prohibition is now part of the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) brought out by the Government of India.

It is now a medically accepted fact that the loss of virginity can occur without intercourse. Given this scientific evidence, it becomes necessary to re-evaluate the way the law perceives and protects victims of sexual offences. Discarding the use of the TFT was a small step.

There is an immediate need for clear legislative directives throughout the judicial hierarchy, the media and members of the law enforcement agencies to approach the crime of rape with greater sensitivity. It is the need of the hour to implement a humane and a sensitive understanding of the offence of rape so that a rape victim’s trauma is not prolonged through brutal investigation and trial procedures.

(Suhasini Rao is part of the faculty on myLaw.net.)

(This article was corrected on May 1, 2014 to remove an error of law. The prior version did not take into account the 2003 amendment to the Evidence Act. We are grateful to our readers for bringing this to our attention. – Editor)

Categories
Human Rights

Not just false fire alarms: time to re-examine Indian laws that limit speech and expression

AparGupta_freedomofspeechA terse ruling by the United States Supreme Court in Shenk v. United States (1919) contains a powerful metaphor on legal arguments about the freedom of speech and expression. “The most stringent protection of free speech”, Justice Holmes said speaking for the Court, “would not protect a man in falsely shouting fire in a theatre and causing a panic”. Even though the Court has since moved away from it as a legal standard (Brandenburg v. Ohio (1969)), it continues to clearly illustrate the idea that the freedom of speech and expression is a conditioned right subject to constitutional limitations. For instance, the Supreme Court of India quoted Justice Holmes in the Ramlila Maidan Incident Case (2012).

Original limitations on free speech

The Constitution of India (“Constitution”) follows this scheme and provides a conditioned right to the freedom of speech and expression. Article 19(1)(a) provides for the fundamental right to freedom of speech and expression and Article 19(2) places restrictions on it. Known as “reasonable restrictions” today, they permitted the legislature to make enactments that fall within the grounds enumerated under it.

Article19(2)_1950 The ink had not dried on the Constitution when petitions were filed in various courts testing the extent of some laws that criminalised speech. While gauging the validity of such laws, the Supreme Court was called in to interpret Article 19(2).

Petitions challenging public order statutes

The Supreme Court interpreted the scope of Article 19(2) as it stood originally in two batches of petitions before it — Romesh Thappar v. State of Madras (1950) and Brij Bhushan v. State of Delhi (1950). In Romesh Thapar, the Court held parts of the Madras Maintaince of Public Order Act, 1949 to be beyond the ambit of the grounds contained in Article 19(2) and struck them down as unconstitutional. On similar reasoning, Brij Bhushan held pre-censorship orders issued under the East Punjab Public Safety Act, 1949 to be unconstitional. Justice Fazal Ali dissented persuasively in both cases, arguing that the enactments fall within the ambit of Article 19(2). H.M. Seervai, citing the presumption of constitutionality, has agreed with his views.

Some High Court judgments also did what the Supreme Court did. For instance, the crime of sedition and the Press (Emergency Powers) Act, 1931 were held unconstitutional. These petitions set the stage for the Parliament of India to consider the first amendment to the Constitution of India.

The 1st Amendment

On May 16, 1951, a mere sixteen months after the Constitution was adopted, a bill to amend it was introduced in the Parliament. The 1st Amendment Bill stated that “…Article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder or other crimes of violence” and sought to amend and expand Article 19(2). Importantly, the word, “reasonable” was inserted in the Bill after a Select Committee report was adopted on May 29. Article 19(2) was then amended by the Constitution (First Amendment) Act, 1951.

Article19(2)_AfterfirstAmendment

The Supreme Court was considerably accommodative in the constitutional appraisal of laws alleged to be in conflict with the amended Article 19(2). In Ramji Lal Modi v. State of Uttar Pradesh (1957), the constitionality of Section 295A of the Indian Penal Code, 1860, which contained the offence of insulting a religion, was challenged. The provision was in the news recently when publisher Penguin India claimed that the threat of prosecution for this offence was the reason it withdrew a book by Wendy Doniger.

Analysing it, the Court held that “the expression ‘in the interests of’ occurring in the amended Cl. (2) of Art. 19 had the effect of making the protection afforded by that clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tendency to cause public disorder.” With the passage of time, there has been growing recognition that Article 19(2) as amended, was framed for the convenience of a police constable and not for the liberty of artists, writers, and citizens.

The necessity of reasonable restrictions

Justice Oliver Wendell Holmes Jr. did not enjoy false fire alarms.
Justice Oliver Wendell Holmes Jr. did not enjoy false fire alarms.

Even though the Supreme Court has not struck down many such laws as unconstitutional, it has often limited their operation by reading requirements into them. The scope of Article 19(2) has been considerably expanded and cases such as Romesh Thappar and Brij Bhushan are no longer good law but the judiciary has often seized upon the requirement of “reasonableness” in support of these limitations. Take the example of the cases on sedition, an offence contained in Section 124A of the Indian Penal Code, 1860.

The Supreme Court in Kedar Nath Singh v. State of Bihar (1962), while holding the provision to be constitutional, placed several limitations on it by holding that only those acts that had the intention or tendency to incite public disorder or violence would invite prosecution. The Court noted that it was clear that “criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.”

This sentiment can also be seen in the recent case of Pravasi Bhalai Sangathan v. Union of India and Others (2014), where it refused to issue directions for increased penal sanctions against ‘hate speeches’. The Court asked the Law Commission of India to study the applicable law and said, “It is desirable to put reasonable prohibition on unwarranted actions but there may arise difficulty in confining the prohibition to some manageable standard and in doing so, it may encompass all sorts of speeches which needs to be avoided .”

However, given that every few weeks, the Press highlights instances of the egregious abuse of these provisions, many have questioned the effectiveness of these court crafted doctrines and limitations.

The way forward

AseemTrivedi_BinayakSen
Assem Trivedi, Binayak Sen

The prosecutions of Binayak Sen, cartoonist Aseem Trivedi, and the Kashmiri students at Swami Vivekanand Subharti University present a mismatch in the doctrinal limitations imposed by Court precedent and the prosecutions that disregard them. These errors are corrected, if ever, through the appeals process but not before a punishment is visited in the form of pre-trial detention or even by the harassment caused by the prosecution itself. The Supreme Court’s precedent seeks to limit the application of such penal provisions but it is often disregarded at the stage of trial. This experience makes a strong case for their amendment or repeal. Though inconvenient given the current state of our polity, the proper forum for arguments about changing laws affecting speech and expression in India is the floor of the Parliament, not the Chief Justice’s court.

A concluding caveat on the arguments to amend Article 19(2) itself, rather than delete specific penal laws. Article 19(2) only provides an outer limit for legislation and not a constitutional imperative for the enactment of reasonable restrictions on speech. Today, the vast expanse of our penal laws not only prevent false fire alarms in cinemas but even criminalise the screening of movies. The time is ripe for the Law Commission of India to study how the laws that limit speech and expression are defined by their abuse and intolerance of dissent.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

Categories
Human Rights

The future of legal aid in India: Lessons from Mewat, Haryana

https://www.youtube.com/watch?v=zLNK6zEX1kU

What is the future of legal aid in India? What role do lawyers, law schools, and NGOs have in securing the rights and entitlements of citizens in rural India? Jane E. Schukoske, a firm believer in the potential of legal aid in alleviating poverty, is the CEO of the Institute of Rural Research and Development (“IRRAD“). Navneet Narwal is a Programme Leader at the same organisation and works with their Good Governance Now project, which has conducted structured training of citizens about their rights and entitlements in Mewat district in Haryana. They spoke with us about enhancing the current framework of the National Legal Services Authority and subordinate legal services authorities and the requirements placed on law schools to conduct legal aid clinics.

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Uncategorized

Patent filing: Does India really follow a ‘first to file’ rule?

JSaiDeepakpicIt is commonly believed about the Indian patent regime that the first person to file an application to patent an invention is the one entitled to the patent on it. The letter of the law however, does not seem to support this belief. No matter how pedantic it may seem, the interpretation of a statute must begin with the language of the provision and must not be driven by what we think the law is or ought to be.

Section 6 of the Patents Act, 1970 (“Patents Act”) which governs the entitlement of a person to file an application for a patent, is extracted below.

Persons_antitled_to_apply_for_patents_PatentsAct1960.jpg

Thus “any person claiming to be the true and first inventor of the invention” may file an application for a patent. The provision uses the words “true” and “first”, and in that order. This means the person (or persons, where there are multiple inventors) must have invented the invention without free-riding on the efforts of another person. Secondly, that person must also be the first one to truly invent the invention. Nowhere does the provision convey a “first to file” rule, where the entitlement is based on prior filing.

The requirements under Section 6 are conjunctive, that is, “true” and “first”. So even if the person’s claim of being the inventor is true, it is possible that he may not be the first inventor. It is only his belief or claim that he is the first inventor because no one has— to the best of his knowledge — published the invention in the public domain or filed for a patent.

That belief could, however, be misplaced. Another person may be able to prove that he was not only the true inventor, but also the first. Can a claim that a person was the true and first inventor be rebutted? Does the Patents Act provide for a remedy that can be invoked to prove “true and first” inventorship?

Section25_PatentsAct_Oppositiontopatent

RevocationofpatentSection64My understanding is that there is no such remedy under the two opposition mechanisms (before grant and after grant) in Section 25(1)(a) and Section 25(2)(a). Both refer to an invention that has been “wrongfully obtained”. Even Section 64(1)(c), which deals with the revocation of patents, considers a similar scenario where the true inventor has been defrauded by another person who has applied for a patent or who has been granted one. In other words, these provisions deal with situations where the patent applicant or patentee is not the “true inventor” since he has obtained the invention “wrongfully”. If the true inventor’s challenge under these provisions is successful, the patent application or patent shall be transferred to his name pursuant to Sections 26 and 52 respectively.

However, an allegation that an invention has been “wrongfully obtained” under Sections 25(1)(a), 25 (2)(a), and 64(1)(c) is distinct from the issue under discussion, namely a situation where the patent applicant has not committed fraud, but is merely under the factually misplaced yet genuine belief that he is the “true and first inventor”.

My reading of the Patents Act is that the remedy for such a situation lies in Section 64(1)(b) which provides for a ground of revocation based on “entitlement to apply for a patent”. This, in my opinion, is a reference to Section 6, which lists who is entitled to apply for a patent.

Section64(1)(b)_Revocationofpatent_entitled

To cut a long story short, while Section 64(1)(c) addresses an allegation of the invention being “wrongfully obtained”, Section 64(1)(b) addresses a situation where a person challenges the grant of a patent because he is the “true and first inventor”. Therefore, X, who believes that Y ought not to have been granted a patent since X conceived of the invention before Y who is merely the first filer of the patent application, has a remedy under Section 64(1)(b). Surprisingly, such a remedy has not been provided for under the scheme for opposition in Section 25(1) and 25(2), before and after the grant of a patent. Consequently, X has to wait until a patent is granted in order for him to challenge its grant under Section 64(1)(b).

From the above, what is certainly clear is that the Patents Act has a “first to invent” rule, and not a “first to file” rule. Despite the clarity in the statutory framework, it is indeed intriguing that most people assume that India follows the “first to file” rule. Finally, the policy argument against the “first to file” rule is that if the “true and first inventor” does not wish to file for a patent and instead wishes to protect the invention as a trade secret, or intends to freely share the invention with the public, another person should not be granted a patent merely because he is the first to file an application for it.

(J. Sai Deepak, an engineer-turned-litigator, is a Senior Associate in the litigation team of Saikrishna & Associates. He is the founder of “The Demanding Mistress” blawg. All opinions expressed here are academic and personal.)

Categories
Human Rights

Some observations about Islamophobia in the Indian legal system

BobbyKunhu_Islamophobia_terrorinvestigationsandtrials.jpgDuring the course of his research into Islamophobia in the Indian legal system, Bobby Kunhu has interviewed people accused of terror, investigating officers, prosecutors, and defense lawyers.

To understand Islamophobia he said, we need to first understand the history of the creation of India and Pakistan, the movement of upper caste Hindus to India during Partition, the transformation and growth of the Jan Sangh into the BJP, and three important decisions made by the Rajiv Gandhi government — unlocking the Babri Masjid, the Shah Bano case, and the ban on Satanic Verses. We also need to understand that Kerala and Kashmir are the only places in India where Muslims have political negotiating power.

Framing investigations as investigations into Islamic terror

Investigations into the blasts that followed the Bombay riots in 1992 were framed only as an investigation into the underworld and not into Islamic fundamentalism. After “9/11”, there is a global discourse of terror and Islamic fundamentalism and that provided the material for the rising Islamophobia in India.

Mr. Kunhu spoke about People’s Democratic Party (“PDP”) leader Abdul Nasser Mahdani, among the accused in the Coimbatore blasts case. He was acquitted after a decade in jail. During that period, several PILs and human rights organisations sought his release.

After that, he was arrested in relation to the bomb blasts in Bangalore in 2013, supposedly on the basis of evidence provided by Thadiyantavide Nazeer, a PDP member whom the Intelligence Bureau called one of the kingpins of the Indian Mujahideen. There are three main witnesses against Mr. Mahdani. His landlord at the house he rented after he was released from Coimbatore jail said that he saw Thadiyantavide Nazeer at the house when he went to collect rent. Later, he filed a complaint with a Magistrate in Ernakulam saying that he did not know what the paper in Kannada he had been made to sign by the Karnataka police was about. A plantation worker in Coorg says that he saw Mr. Mahdani visiting the plantation in Coorg for a meeting with Mr. Nazeer and others. The third witness is an RSS activist.

Judicial discomfort with the special cells of the police and the provisions used in terror charges

Usually, in terror-related cases, charges would be filed under Section 144A of the Indian Penal Code, 1860 (Sedition), Section 3(o) of the Unlawful Activities Prevention Act, 1967 (“UAPA”), and sometimes the Arms Act, 1959. The problem is that most of the lower judiciary is very scared of Section 124A and the UAPA. When it deals with special cells of the police like the Anti-Terror Squad, the Special Investigation Team, or the Crime Branch Criminal Investigation Department, the judiciary is very scared to grant any relief, or even follow procedure.

Unlawful arrests

Azamgarh, a town in Uttar Pradesh was named as the hub of terror recruitment across India after the Batla House encounters. Police picked up people, including many non-Muslim activists of the People’s Union for Civil Liberties. In most cases, they would not file an FIR and the people would not be produced before a Magistrate till civil society organisations raised a hue and cry about the missing boys.

In Hyderabad, immediately after the Mecca Masjid blasts happened, the police went on a rampage, picked up more than eighty Muslim boys from old Hyderabad, saying that there was a Lashkar-e-Toiba link. Nobody knew whether these boys had been arrested at all. The late K. Balagopal, a human rights coordinator, and others tried tracing them. A habeas corpus petition was filed in the Andhra Pradesh High Court and only then was an FIR lodged and the detained people produced before a Magistrate. All this happened at the pre-trial stage and the evidence was already being published in the newspapers.

SIMI was banned under the UAPA in 2002 after the Gujarat pogrom. Under the UAPA, a special tribunal has to be set up, every time a ban is notified. The tribunal has to be headed by a sitting judge of the High Court and examine all the evidence. The life of a ban is two years. Each time SIMI has been banned, by the time the tribunal comes to an end, the ban would be renewed and there would be a new tribunal. The third tribunal found that there was no evidence against SIMI. Soon after, the Union government notified SIMI as an unlawful agency. After the Batla House encounter, the government found it difficult to corroborate their claims about SIMI. The Indian Mujahideen was born at that point, and even though several books and articles have been written about it, no one has found anything outside of what the government has released through the Intelligence Bureau.

Strategic use of the media

Investigating authorities have strategically used the media to plant stories on terrorism. Praveen Swami detailed the Ishrat Jahan encounter on the front page of The Hindu — about how Ishrat Jahan met Pranesh Pillai and how they orchestrated a plan to assassinate Gujarat Chief Minister Narendra Modi. He kept carrying these stories till questions were raised about the legitimacy of the encounter.

(Hemangini Kalra prepared the transcript of Mr. Kunhu’s talk.)