Tag: criminal law

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Human Rights

How England, Scotland, Australia, and the United States removed the marital exception to rape

PraptiPatelOn April 29,the Union Minister of State for Home Affairs announced in response to a question in Parliament that the government had no plans to criminalise marital rape. Illiteracy, poverty, societal customs, religious beliefs, and the general mindset of the society which treats marriage as a sacrament were put forward as reasons to not bring in any such amendment.

England and Scotland

MatthewHale

Matthew Hale (1609-1676)

The common law on the matter of the rape of a wife by her husband followed the rule that a wife became her husband’s physical and sexual property as part of the marriage contract. A man was therefore exempt from prosecution for the rape of a woman to whom he is married to. The infamous statement of the seventeenth century judge Matthew Hale, that “A husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract” has been followed in common law jurisdictions across the world.

The protection from prosecution given to spousal rape was also recognised in Scottish criminal law. The Scottish High Court of Justiciary however, modified this view in the 1989 case of S. v. H.M. Advocate and removed the marital immunity from rape. The same view was taken in England by Appellate Committee of the House of Lords in R. v. R in 1991.

Australia

In 1976, with the Criminal Law Consolidation Act Amendment Act 1976, South Australia became the first jurisdiction in the common law world to abolish the presumption that a wife gave the kind of consent highlighted by Matthew Hale and enabled the conviction of men for the rape of their wives. The prosecution however, had to be backed by evidence of threats or violence. Even this requirement was done away with in 1992.

USA

Historically, marital rape was statutorily excluded from prosecution in the United States because rape was defined as the forced sexual intercourse by a male with a female who was ‘not his wife’. Nebraska became the first state to abolish the exemption from prosecution in the mid-1970s and by 1993, marital rape was a crime in all 50 states.

There were however, vast differences in how each state has viewed and prosecuted the crime. While 17 states treated marital rape and other forms of rape the same, the others had different rules such as shorter penalties or exclusions because of lack of evidence of violence. As of 2005 however, South Carolina remains the only US state where proof of excessive force or violence of a “high and aggravated nature” is required to establish an offence of marital rape.

Categories
Human Rights

New Gujarat terror law creates vague crimes, allows confessions to the police, permits secret trials, gives police immunity

Manish_authorOn March 31, the Gujarat Assembly passed the Gujarat Control of Terror and Organised Crime Bill, 2015 (“the Bill”), which is now awaiting the Governor’s assent. It is modelled on the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), a law that was criticised for being draconian, in excessive violation of civil liberties, and with several documented instances of misuse. This bill had previously been passed on two occasions, in 2003 and in 2009. Each time, it was unsuccessfully referred for the President’s assent. Now, the Opposition has abstained from voting on it and has appealed to the Governor to decline assent.

Poor drafting, vague definitions

The Bill is poorly drafted, especially in places where it deviates from MCOCA. Definitions of “continuing unlawful activity”, “organised crime”, and “organised crime syndicate” (Sections 2(1)(d), (e), and (f) respectively) all refer to one another in a circular manner and offer little clarity. The definitions are also vague. “Organised crime” includes “cyber crimes having severe consequences” and “running large scale gambling rackets”. What constitutes “severe consequences” or “large scale” has not been defined. These terms are absent in MCOCA. The Bill also attempts to define “terrorist act” in Section 2(h) through a long-winded, logically inconsistent, and grammatically incorrect sentence that is painfully strung together and offers no useful guidance regarding what exactly constitutes the act in question. A much clearer definition (with the same ingredients) is found in Section 15 of the Unlawful Activities Prevention Act, 1967.

The substantive offences are defined in Sections 3 and 4 and are mostly similar to those defined in the MCOCA except for the addition of “terrorist act” in addition to “organised crime”. Besides these acts themselves, conspiracy, abetment, harbour, membership of an organised crime syndicate, and possessing property derived therefrom are all criminalised, with the possibility of life imprisonment (and the death penalty if the organised crime or terrorist act causes death).

Special courts

Sections 5 through 12 deal with special courts and their functioning. The state government, with the concurrence of the Chief Justice, is empowered to set up one or more special courts and appoint judges for exclusively trying offences under the Bill. The special courts have the powers of sessions courts but can also take cognisance of offences. Of interest is Section 10, reproduced verbatim from MCOCA, which states that trials before a special court shall have precedence over trials before any other courts, and imposes a de facto stay on all other proceedings for the period of the trial.

Evidentiary rules for intercepted communication and confessions

Section 14 provides for the admissibility of evidence collected through the interception of wire, oral, or electronic communication. This is where the Bill makes a significant departure from MCOCA – while the latter actually provides a procedure for the interception of communications, the Bill does not do so, only making existing intercepts admissible. Therefore, the procedure that will have to be followed will be as laid down in Rule 419A of the Telegraph Rules, 1951 and Rule 3 of the IT (Interception, Monitoring and Decryption) Rules, 2009. The unhappiness of the drafting reveals itself in a rather confusing (and possibly unnecessary) non-obstante clause at the beginning of the section, followed by the words “under the provisions of any other law”. Interestingly, the first proviso to the section also requires that the accused be provided with a copy of the order of the authority authorising the interception, ten days prior to the hearing where the intercept is sought to be admitted as evidence. This is partially nullified by the second proviso, which gives the judge the discretion to waive the period of ten days.

Among the most controversial of the Bill’s provisions is Section 16, clause (1) of which makes a confession to a police officer admissible in evidence. This section overrides Section 162 of the Code of Criminal Procedure and Sections 25 and 26 of the Indian Evidence Act, 1872, which specifically prohibit the use of statements made to police officers in evidence, in order to protect the rights of the accused by preventing the extraction of confessions under duress or torture by the police. While investigating agencies ordinarily have the option to record statements before a magistrate under Section 164 of the Criminal Procedure Code, the Gujarat bill destroys this delicate balance between the rights of the accused and the powers of the investigative agencies. It opens the door to egregious violations of human rights while extracting confessions from persons detained under its provisions. By means of an eyewash, the Bill provides some ‘safeguards’ in clauses (2) to (4), which are mostly meaningless given that the authority administering them is not independent, but a part of the investigating process. The shallowness of the provision is revealed by clauses (5) and (6), under which both the statement and the person making it are required to be forwarded to a magistrate within 48 hours. In such a circumstance, the statement could well have been recorded by the magistrate. This section appears to be an elaborate ruse for legitimising confessions to the police, and the inhuman machinations that go behind it: under clause (7), an allegation of torture by the person making the confession does not invalidate the confession, but merely prompts a reference to a civil surgeon for a medical examination.

Witness protection and closed trials

Section 17 contains provisions for the protection of witnesses, and is modelled on Section 19 of MCOCA. It empowers the special courts to hold the trial in-camera and take any measures necessary for concealing the identity and address of the witnesses. As part of this power, Clause 3(d) allows the court to make a decision that “it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner”. This is an extreme provision which is reminiscent of the attempt at holding a “secret trial” in the UK for terrorist offences, which was rejected by the Court of Appeal on the ground that “open justice” was both an integral part of common law and a means of ensuring public confidence in the legal system. The same considerations regarding open trials apply to India as well: Section 327 of the Criminal Procedure Code mandates that trials be held in open court, with limited exceptions on reporting. In a situation where the Supreme Court has already laid down guidelines for court reporting, the blanket media gag proposed by the Bill is extremely troubling and avoidable.

Procedural safeguards diluted, stricter conditions for bail

Section 20 dilutes several procedural safeguards provided to the accused under the Code of Criminal Procedure. On the lines of MCOCA and UAPA, it increases the time for which a person may be detained in police and judicial custody, pending investigation, to 30 and 180 days respectively. Clause (3) removes the option of anticipatory bail and clause (4) provides for extremely restrictive conditions regarding bail, almost mandating the acquiescence of the public prosecutor. Clause (5) is another controversial provision, which denies bail even if the accused had been released on bail in an offence under any other law on the date of the offence. This clause is based on Section 21(5) of MCOCA, which was held to be unconstitutional by the Supreme Court in 2008. The Bill therefore deviates from the well-established jurisprudence of bail being a right and jail being the exception. Thus, even if no charges are made out, people detained under the provisions of the Bill will have to languish in jail.

Burden of proof shifted

Section 21 of the Bill, which is identical to Section 22 of MCOCA, is a reverse-onus clause, which shifts the burden of proof from the prosecution to the accused in certain circumstances. In doing so, it dispenses with the presumption of innocence of the accused and breaks the “golden thread” of criminal jurisprudence, requiring the prosecution to prove the guilt of the accused beyond reasonable doubt, which originated in common law but has become a settled proposition in Indian criminal jurisprudence as well.

Immunity for state functionaries

Image above is from the website of the All India Radio.

Image above is from the website of the All India Radio.

As a matter of abundant caution, Section 24 of the Bill contains another non-obstante clause giving it overriding effect over all other laws for the time being in force. Section 25 caps off the draconian legislation by granting complete immunity to all state functionaries for any action taken under the provisions of the Bill. This effectively provides impunity to police officers for torture and extra-judicial methods employed in criminal investigations, under the garb of “anti-terror operations”. Thus, even in cases of false prosecutions, like the 2002 Akshardham terror attack, the victims will be left empty handed and without any recourse to justice.

“Tough anti-terror laws” have rarely if ever proven useful at combating terrorism, and usually serve to provide a cover for the incompetence of investigating agencies. A case in point is the aforementioned Akshardham terror attack case, where the Supreme Court came down heavily on the investigating agencies for conducting a shoddy investigation, which led to the framing of innocent persons, while the actual masterminds behind the attack were still at large. Gujarat already has a history of draconian legislation in the Gujarat Prevention of Anti-Social Activities Act, 1985 (“PASA”), which authorises preventive detention, and has been heavily criticised for being used to detain activists and protestors. For now, hope rests with the Governor and the President to prevent the new Bill from becoming law. Unfortunately, judicial history shows that the Supreme Court has also been extremely restrained while testing the validity of these laws under the Constitution, with the most draconian provisions being upheld repeatedly. The last of these was MCOCA in 2008, which was upheld (although the challenge was mainly on grounds of legislative competence rather than violation of Article 21). While hope is eternal, the outlook remains bleak if the Bill is assented to.

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

Categories
Human Rights Supreme Court of India

Legalise or abolish? Debate on sex work back in focus

VeraShrivastavIn 2011, the Supreme Court of India set up a panel to deliberate potential amendments to the law on sex work, suggest measures to rehabilitate sex workers, and ensure their basic citizenship rights. Recently, the chairwoman of the National Commission of Women, Lalitha Kumaramangalam, declared her stance in favour of the legalisation of sex work.

The Immoral Traffic (Prevention) Act, 1956, (“ITPA”), the only Indian law specifically covering prostitution in India, was passed to give effect to India’s international obligations under the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1950 and also to uphold the freedom against exploitation guaranteed under the Constitution of India.

The prohibitions in the ITPA

Under the ITPA, prostitution is defined as the sexual exploitation of women for commercial purposes. It does not criminalise sex work per se. It is not illegal to carry out sex work within the private confines of one’s home but sex work in or near public places and the soliciting of clients for the purpose of prostitution are criminal acts. It also criminalises the facilitation of the acts of kerb crawling, owning and managing brothels (more than one prostitute constitutes a brothel), pimping, procuring, and trafficking. In effect, the criminalising of prostitution has accorded an offender status to sex workers. Civil society has been largely insensitive to their forced sex work, the abusive customers, their poverty and lack of basic amenities, and most regretfully, their fundamental right to live with dignity.

In 2006, an amendment was proposed in the Parliament to decriminalise prostitution and the solicitation of clients under the ITPA. It also purported to strengthen the definition of trafficking but this bill promptly lapsed with the dissolution of the Fourteenth Lok Sabha. If passed, it would have provided sex workers with a large degree of protection from harassment by the police, social ostracism, and the exploitative network of pimps, traffickers, and abusive customers. Further, it would have embraced a victim-centric approach towards sex workers as opposed to the offender status accorded to them under the existing law.

Lalitha Kumaramangalam (left) and Bharati Dey

Lalitha Kumaramangalam (left) and Bharati Dey

Amongst all the facilitating acts, the trafficking of sex workers is easily the most lucrative business for pimps and traffickers. It exploits minors and adults alike, who are often trafficked into the trade against their will and better judgment. Given that the social fabric of India highly stigmatises prostitution and given that sex workers are not legally recognised, the number of sex workers in India who freely choose this means of livelihood, without being driven or trafficked into it by poverty, illiteracy, and the lack of other viable alternatives, are few. While the statistics of the Ministry of Women and Child Development had estimated over 3 million sex workers in India a few years ago, the Human Rights Watch pegs the number at a much higher 20 million sex workers. A 2013 report by Dasra Foundation also estimates the number of sex workers in India at 20 million, of which 80 per cent are victims of trafficking.

Under the ITPA, trafficking was not defined comprehensively and the measures were ineffective in curbing it. To remedy this, the Verma Committee in 2013 recommended the adoption of the definition of ‘trafficking’ from United Nations Palermo Protocol which classifies trafficking as an offence if done for the purpose of exploitation. This definition has been incorporated in Section 370 the Indian Penal Code, 1860 by the Criminal Law (Amendment) Act, 2013.

Abolition versus legalisation

The approach towards trafficking is a contentious point between two opposing viewpoints on sex work. There are the abolitionists who advocate abolishing the sex work industry altogether and who consider trafficking a crime in itself and then there is the pro-legalisation group who recognise the sex work industry and the accompanying trafficking as part of the trade, as long as it is not done for exploitation.

Apne Aap Women Worldwide and a number of other NGOs and activists advocate a third way between abolishing and legalising sex work. They advocate the decriminalisation of the sex worker, penalising and educating the customers, and criminalising the traffickers.

Apne Aap strongly feels that “prostitution is inherently exploitative and unequal and is in reality an absence of choice, not a choice. Women who have been prostituted must have their basic rights recognised and safeguarded but this must not be confused with the issue of legitimising the sex trade and creating a section of ‘sex workers’ as an employment avenue, such that women from poor and socially oppressed backgrounds, or women lacking education and skills fall prey to the pressures of the market economy, to serve the interest of the profiteers such as pimps, traffickers, procurers, running this trade. The prostituted woman is completely controlled by an exploitative network of pimps, recruiters, brothel managers, money lenders, muscle men and organised crime networks who actually take most of the money a prostituted woman makes from sale of her body, leaving her into a vicious debt cycle”.

An opposing viewpoint is provided by Bharati Dey, the President of the All India Network of Sex Workers and the Secretary of the Durbar Mahila Samanwaya Committee, who leads the pro-legalisation campaign. Sex work, she says, should be treated as labour and should be brought under the purview of labour laws and policies of the state so that sex workers can live with dignity and enjoy workers rights. She also believes that once the sex work industry is regulated under labour laws, the ITPA will serve no purpose and ought to be repealed. Ms. Dey’s vision encompasses a scenario where the sex workers are empowered and self–reliant. She proposes a self–regulatory board as well as an anti-trafficking board, which will be constituted of and managed by the sex workers themselves. This way, the sex workers union will be able to closely supervise and segregate the women who join the trade of their own free will and those women including minors who are trafficked into the trade. For the latter and those who wish to opt out of this means of livelihood, she proposes to involve the government for long-term rehabilitation measures.

Some NGOs and activists also believe that legalising sex work will prevent the spread of HIV/AIDS and other sexually transmitted diseases, provide access to health facilities, education opportunities, and financial inclusion in society as well as prevent exploitation but there is no conclusive study to support that legalisation will improve the conditions of sex workers.

Most parts of Asia, Africa, and the United States have criminalised prostitution while most of Latin America and Europe legalise prostitution or regulate it in some way. Germany and Netherlands, the leading examples of countries which have legalised prostitution, are still facing problems of illegal trafficking of women from less prosperous countries, links with organised crime syndicates, and drug abuse. Conditions amongst prostituted women have not improved noticeably. Sweden is a prime example for the decriminalisation model. Sweden has decriminalised the sex worker and offered rehabilitation measures, but has criminalised the traffickers and customers. This Nordic model has been adopted in Norway, Finland, Iceland, Korea, Philippines, and Russia.

Any model that we adopt must provide solutions to the pressing issues of exploitation by the trafficking network, lack of access to health, prevention of diseases, safety measures for women, financial inclusion in society, and the right to live with dignity. Further, the government must ensure strong long-term rehabilitation measures for any sex worker who wishes to opt out of this means of livelihood.

(Vera Shrivastav is an Associate at LegaLogic law firm and is a part time researcher and writer.)

Categories
Supreme Court of India

Jaya’s plea before the Supreme Court shines light on appellate courts’ powers

JitenMehraThe Karnataka High Court recently refused to release Jayalalithaa on bail after her conviction under the provisions of the Prevention of Corruption Act, 1988. Sentenced to imprisonment for four years and a fine of Rs. 100 crores, Jayalalithaa was immediately disqualified from the membership of the Tamil Nadu legislature and had to step down as Chief Minister of the state. With the Supreme Court set to hear her plea any day now, let us briefly examine appellate court’s powers of ordering that a sentence or a conviction be suspended pending appeal.

Power to suspend a sentence versus power to suspend the conviction

Pending the disposal of an appeal or a revision, appellate and revisional courts have powers to (i) suspend the execution of a sentence and release the appellant on bail or (ii) suspend the conviction itself and release the appellant on bail. In the case of appellate courts, these powers reside in Section 389(1) of the Code of Criminal Procedure, 1973 (“CrPC”). The important distinction between these powers is that a suspension of the execution the sentence pending an appeal does not erase the conviction or suspend any disqualification that arose from the conviction. A suspension of the conviction on the other hand, has the legal effect of staying any disqualifications under any law because of the  conviction. For example, a person is disqualified from being a member of Parliament or the Legislative Assembly or Legislative Council of a state under Section 8(3) of the Representation of People Act, 1951 if he or she has been convicted and sentenced for any offence for not less than two years. If an appellate court has stayed the conviction under Section 389(1), it has the effect of staying such a disqualification. Not so, if the order merely suspends the execution of the sentence.

Power to suspend conviction – exercise with caution

CM021

The Supreme Court has held that the power to suspend the conviction must be exercised only in exceptional cases where a failure to stay the conviction would lead to injustice and irreversible consequences. In Navjot Singh Sidhu v. State of Punjab, the Court held that the person seeking a stay of the conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. A person convicted cannot obtain an order of stay of conviction without that. In State of Tamil Nadu v. A. Jaganathan and in K.C. Sareen, the Court has even held that a conviction on a corruption charge against a public servant should not be suspended even if the sentence of imprisonment is suspended.

Time taken to hear an appeal – a factor when considering suspension of sentence

In either case, the appellate court has to record reasons in writing. The Supreme Court has noted some of the factors that can be taken into account while dealing with suspension of sentence. In Angana and Another v. State of Rajasthan, for example, Court held that the fact that the appellant did not misuse bail during trial could be considered. The time that it would take to hear and adjudicate an appeal is another factor. In fact, in K.C. Sareen v.  C.B.I, Chandigarh, the Court held that when a court admits an appeal, it should normally suspend the sentence of imprisonment until the disposal of the appeal, because unless an appeal is heard soon after it is filed, a refusal to do so would render the very appeal otiose. The fact that a person has already undergone a substantial portion of the sentence awarded, either under trial or as a convict must also weigh in favour of the appellant.

It remains to be seen whether the Supreme Court will release Jayalalitha on bail after suspension of sentence or is impressed enough to order suspension of her conviction as well.

(Jiten Mehra is an advocate practising in Delhi.)

Categories
Human Rights Supreme Court of India

Where process is punishment: Supreme Court shows how additional police powers in terror laws encourage injustice

ShadanFarasat_SupremeCourtofIndiaOn July 18, the Supreme Court delivered a judgment releasing from custody, twelve men who had been accused of orchestrating the blasts in Surat in 1993. Justices T.S. Thakur and C. Nagappan delivered the decision titled Hussain Ghadialy and Others v. State of Gujarat in Criminal Appeal No. 92 of 2009. The judgment itself does not point out the period for which the accused had been incarcerated. Given that the blasts happened over twenty-one years ago, it would be reasonable to presume that the accused had spent over fifteen years in custody for an offence that the Supreme Court has now determined they did not commit.

SupremeCourtJusticesThakurandNagappan
Justices Thakur and Nagappan of the Supreme Court of India.

Speaking for the Court, Justice T.S. Thakur held that the under Section 20A of the now-lapsed Terrorist and Disruptive Activities Act, 1987 (“TADA”), the approval of the District Superintendent of Police was necessary before any information about the commission of an offence under the provisions of TADA can be recorded. In this case, no such permission was obtained. All proceedings under TADA therefore, stood vitiated. The only evidence against the accused was their confessions before the police, which could be admitted as evidence under Section 15 of TADA. Since the provisions of TADA were not applicable however, the convictions could not be sustained without independent evidence.

In another recent judgment, that of A.S. Ajmeri v. State of Gujarat, Criminal Appeal No. 2295-96 of 2010, delivered on May 16, another bench of the Supreme Court released on very similar grounds, the accused under the Prevention of Terrorism Act, 2002 (“POTA”). In this case too, the police force involved was the  Gujarat Police and the Court passed severe strictures against them.

LawSchoolInductionThese two cases really highlight the severe damage caused by the provisions of these draconian laws. Far from making the apprehension and conviction of actual terrorists more credible, these provisions gave the police another tool to frame innocent individuals only to show that the case has been solved, even as the actual perpetrators of such violence remain un-apprehended.

The more recent case before the Supreme Court was one of the many where the sole basis for conviction in a TADA case was the confession before the police. Under the normal criminal law, such confessions are inadmissible as evidence. In most of these cases, the designated TADA courts have given too much leeway to the prosecution and convicted the accused only on the basis of a confession before the police, even though there were serious irregularities in the initiation of proceedings under TADA or in the recording of the confessions, which are very often fabricated. Under TADA, the first and only appeal lies to the Supreme Court. By the time the Supreme Court finally corrects these errors and acquits the accused, more than a decade has passed. The process itself becomes the punishment.

While TADA itself has been repealed, many of the questionable convictions made under this law are still pending appeal before the Supreme Court. Even if the accused are released in these appeals, given the absence of jurisprudence in India over compensation for wrongful or malicious prosecution, they are usually not granted any compensation for the crucial years of their life that they spent in custody. After the years of incarceration, most of the accused are just happy to be out of jail and reunite with their families.

policeindiaThis experience with TADA and POTA shows that draconian provisions giving additional powers to the police, especially in relation to the admissibility of evidence is, in the absence of genuine police reform, likely to encourage an already compromised police force to misuse them to frame innocent civilians while the real perpetrators roam free. The solution lies in having a more professional and uncompromised police force that is able to honestly investigate and solve both regular crimes and terrorism cases alike.

Shadan Farasat is an Advocate-on-Record at the Supreme Court of India.