MARITAL RAPE IN INDIA: IS THERE A NEED FOR RECOGNITION?

By: Ipsita Aparajita Padhi

INTRODUCTION-

Rape itself is a grievous and inhuman offence against a woman that not only violates her dignity but also pushes her into a situation of life and death in several cases. Marriage is an institution that should be based on respect and dignity and when such circumstances arises within her own house, it decreases the wife to a mere object for sexual satisfaction. On March 13, 2020 rape law in the country was amended, yet there was no recognition of marital rape in Indian. No definite laws were provided in the amendment. Marital rape is still silent because of the social stigmas and the overpowering patriarchal society. It doesn’t only give the woman physical injury but also emotional and psychological injuries for life. The evil of marital rape remains hidden under the sanctity and belief in the institution of marriage. In this context, the belief that a wife is supposed to have it away together with her own husband no matter what is the condition of her health, if or not her consent is present or whether she is willing to have it or not is completely unacceptable to a “so-called civilised society” like in India.

MARITAL RAPE IN TODAY’S TIME-

We are definitely living in 2020 and call ourselves a modern and developed society but the irony is that India still stands one amongst the 36 countries in the world where it is still not a crime for a husband to rape a woman as long as she is his wife. According to a report made in 2006, it was estimated that marital rape is a criminal offence that is punished under the legal code in a minimum of at least 100 countries and unfortunately India is not one of them. Although marital rape is prevailing in India, it’s still hidden behind the sanctity and belief in the institution of marriage.[1] The exemption of marital rape from the legal code portrays the ownership of a woman to her husband. As given in a statement by Katherine Donnovan, “It’s immunity from the purview of the legal code is explained on the grounds that the feminine victim may be a wife. This justification is understood within the context of the dominant familial ideology and feminine sexuality which treats a wife as property and as having no sexual agency or deciding in gender within the marital contract”.[1]Mere criminalization of rape within marriage would neither be the solution nor will it put an end to this but it will surely be a vital step towards the sexual violence that has exceeded in the marriage.

MARITAL RAPE AND LAWS IN INDIA-

Despite of several amendments, law commissions and legislations we have failed to established one of the most heinous act as a criminal offence in India. It is the right of every woman to give her consent before any sexual relationship whether or not they are bind together by the institution of marriage.

As per our Constitution, every other law that is passed must be in confrontation with the principles that are highlighted in the Constitution. Now the question is how the exemption of rape within marriage fails to fulfil the principles of this conformity under the provisions of Article 14 and Article 21 of our Constitution. Although a husband’s violent or non-consensual sexual act can entitle the wife to bring charges of  assault on him, the most important thing that is required is the incorporation of liability in cases of marital rape in our legal code. The protection from violent and unwilling sexual intercourse within marriage should be provided all the women and not only to the child-brides under 15 years of age.

Whenever we talk about marital rape, factors of gender, family honour and reputation comes into play rather than the rights and individuality of the woman.

It is high time that the autonomy of a woman over her own body and as an individual be recognized without considering this fact that whether she is married or not and whether she is of 15 years or below.

Aaccording to the Indian Penal Code, the circumstances where the husband can be criminally charged for an offence of marital rape are: –

  1. When the wife is between 12 and 15 years, the offence is punishable with imprisonment upto 2 years or fine or even both.[2]
  2. When the wife is below 12 years,the offence is punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.[3]
  3. Rape of a judicially separated wife, the offence ispunishable with imprisonment upto 2 years and also fine.[4]
  4. When rape is committed with the wife of above 15 years then it is not punishable.[5]

CURRENT JUDGEMENTS ON MARITAL RAPE-

In 2018, the Gujarat tribunal in its recent judgement of Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, observed that marriage doesn’t give the right to the husbands to forcibly have a sexual relationship with their wives and that the wives are not mere objects of their sexual gratification. The husband doesn’t own the body of his wife just because they are married. In this case, the wife accused the husband stating that on several occasions sexual activity was forced on her without her consent. It was argued on behalf of the husband that marital rape is still not recognised and hence it is not a criminal offence. At most prima facia a case could be made under Section 498A of IPC i.e. hhusband or relative of husband of a woman subjecting her to cruelty. Further the counsel on behalf of the wife argued that this case was of marital rape as the sexual intercourse was against the willingness of the wife and that the consent was obtained by the husband by force both physically and sexually. The Bench stated that, “It is high time to discharge the notion of considering implied consent in marriage. The law must protect the bodily dignity of a woman no matter if she is married or not”.[6]

RAPE LAWS WITH NO-DISCRIMINATION-

Section 375 of IPC itself provides discrimination by categorising women into married and unmarried, further protecting the dignity of unmarried woman but failing to recognise that of the married ones. It is completely absurd that one part of the law protects the women from forcible sexual act while other part simply stays silent as long as the woman is married. This discrimination of categorising woman is a violation of Article 14 of the Constitution. Through various judgements and legislations the Supreme Court has made clear that the sanctity of a woman and her willingness to have sexual intercourse comes under Article 21 of the Constitution. But section 375 exception 2 stands against this and violates the basic human rights and also it contradicts with the provisions present in the Protection of girls from Vviolence Act, 2005.

JUDICIAL STAND

Looking at the history of marital rape, comes the case of Queen Empress vs. HareeMythee.[7] Here, the husband is charged in four different forms for causing death of his wife by several bodily injuries. The Court stated that in the case of a married woman, the rape laws won’t be applied within the husband and his wife. In another case, Emperor vs. Shahu Mehrab[8] the husband was charged under section 304A of Indian Penal Code for the cause of death of his minor wife by negligent sexual activity with her.

The right to privacy which is every person’s right regardless of gender, is violated by non-consensual sexual intercourse. The State fails to recognize this. The judiciary seems to neglect the part that rape happen within the institution of marriage.

 Problem lies within the thinking of the society, that marriage is sacrosanct and that the wife should worship her husband. It is very much shocking to see how the law is ignoring such violation of the fundamental right of freedom of a spouse.

CONCLUSION-

Marital rape should be criminalized in India through the private rights approach against the violation of the dignity of the women. There are several women associations trying to aware the public regarding this and also to pass the legislation on sexual violence. However till now rape within marriage is not completely criminalized in India and it will continue likewise unless the legislators and the society acknowledge the individual rights of every woman even though she is bind by the institution of marriage. If this practice continues without any proper laws then the women of the country will be subjected to mere sexual objects and will be continued being targeted as victim both by their husband and the society. There is a serious need to acknowledge a wife as an individual rather than the traditional concept of considering her as a mere chattel and give her the respect and dignity that she deserves as any other individual.


[1]Pallavi Prasad, Why It’s Still Legal For Indian Men to Rape Their Wives, THE SWADDLE( Dec. 10, 2020, 11:00AM), https://theswaddle.com/marital-rape-inda-decriminalized-crime/.

[2]Donnovan, Katherine, Family Law Matters, Pluto Press, 1993.

[3]Indian Penal Code (45 of 1860), Section 376(1).

[4]Indian Penal Code, Section 376AB.

[5]Indian Penal Code, Section 376A.

[6]Indian Penal Code, Exception to Section 375.

[7]Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, 2018 Guj 732

[8]Queen Empress vs. Haree Mythee(1891) ILR 18 Cal.49.

[9]Emperor vs. Shahu Mehrab0 [AIR 1917 Sind 42].


INTRODUCTION TO NEGLIGENCE AND PROFESSIONAL NEGLIGENCE

By: Jhanvi Jain

Negligence is a general term means act of being careless. It was derived from the Latin word negligent which means ‘failing to pick up’. In legal sense the term negligence signifies the failure to exercise a certain amount of care needed to be exercised which needed to be exercised in a particular condition. Negligence can be properly defined as a breach of legal duty to take care which results in damage, which is not desired by the defendant to the plaintiff. The essentials of negligence are as follows:-

  1.   Duty to take care
  2.   Duty to whom
  3.   Duty must be towards plaintiff
  4.   Breach of duty to take care

When the legal duty is breached with, negligence takes place. Here, we are going to assess the dimensions of negligence

  1. contributory negligence – Where the plaintiff fails to exercise reasonable care for their safety.
  2. professional negligence – It can be defined as a breach of duty between the professional and his clients.

Negligence has not been explained in any precise definition. It was vaguely defined in a case the apex court named[1] Jacob Mathew v. State of Punjab, which is presented below;

Negligence can be defined as a breach of duty which is caused by omissions to do something which a prudent man guided by considerations which are ordinarily regulated the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do.

This definition involves 3 elements of negligence: –

  1. A legal duty to exercise due care on the part of the party complained of toward party complaining the former’s conduct within the scope of duty.
  2. Breach of the duty mentioned
  3. consequential damage

In this article we are about to discuss about the dimensions of negligence;-

The broad dimensions of negligence can be conveyed as follows-

1 Contributory negligence

2 professional negligence.

Let us first discuss contributory negligence –

Contributory negligence is the plaintiff’s failure to exercise reasonable care for their safety. can be understood as an act by which the plaintiff to satisfy his own want of care, becomes a part of the wrongful act committed the defendant.

An accident could be called a part of contributory negligence if

‘The proximate cause of the accident is the act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party (the plaintiff) has conjoined with other party’s negligence.’ [2]

Contributory negligence as an independent ground took shape in the 18th century and early 19th century. [3]The term contributory negligence originated in the case Butterfield v. Forrester in 1809. In Butterfield v. Forrester there was a man who was riding a horse which was collided with a pole standing on a public road, which resulted in the man being thrown off the horse and injured. The man was denied claims for damages as the judge found out that the horse was ridden at an extremely high speed without taken ordinary care. The judge declared that the damages were denied as he was found to ride a horse at an extreme speed, while not taking ordinary care. According to the judge before whom the case was performed – An injured party will not be able to recover loss suffered by him if he could have avoided the accident or injury by exercising ‘ordinary caution’.

Contributory negligence is applicable totally to the conduct of the plaintiff. In contributory negligence the defendant has to prove that the plaintiff had failed to take reasonable care for his safety and was contributing to a the harm ultimately suffered by the plaintiff. This a defence where the defendant can prove that the plaintiff failed to take reasonable care of his safety and was a contributor to the ultimate harm suffered by the plaintiff. In Madhya Pradesh High Court in Vidya Devi v. M.P. Road Transport Corporation In that case, a motor cyclist who was driving negligently, not taking the care prescribed crashed against a bus and died in an accident. The bus driver was not found to be negligent as he was taking precautions to avoid collisions. The proportion of the blame was 2:1. Therefore, the plaintiff will only be entitled to 1/3rd of the damages, he would have been entitled to if he wasn’t at fault.

Now let us discuss about the other dimension called the professional negligence

In such kind of negligence there is always a professional involved for example lawyers, doctors, architects etc. The person held liable here should be performing some special skills. The people who are performing such tasks are said to possess some special skills undertaken to perform some special tasks.

In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors.,1 a mop was left inside a female patient’s abdomen during an operation. A disease called Peritonitis was developed leading to a second surgery being performed, but she could not survive it. Liability for negligence fell upon the surgeon because of the absence of reasonable explanations for the mop being left inside the woman’s abdomen. Doctrine of Res Ipsa Loquitur was applicable here. In this the supreme court established that negligence cannot be attached to a doctor if he is performing his duties in his best abilities, with proper care and caution.

[4]In an apex court judgement of Jacob Mathew V State of Punjab

A reasonable man entering into a profession is required to have a particular level of learning to be called a professional in the field selected. It impliedly assures the person dealing with him that the skill possessed by him shall be exercised and exercised with reasonable care and caution The client is not made aware of the result. For example, A lawyer does not tell his clients that the client will definitely win the case in each and every circumstances. A doctor does not assure a patient of full recovery in all cases and a surgeon cannot and does not guarantee that the result of the surgery would without any doubt be beneficial, much less to the extent of 100% for the person operated on. The only assurance which can be given in this case is that the person entrusted with the task has the requisite skills needed in the profession and while the task of practising the skills acquired is given to him he will do it with reasonable competence. In Jacob Mathew v State of Punjab AIR 2005 SC 3180,one late Jiwan Lal Sharma was admitted in the CMC Hospital, Ludhiana on 15-2-1995. On 22-2-1995, he felt difficulty in breathing. There being no oxygen cylinder available for 5 to 7 minutes, he died. The doctors also turned up after 20 to 25 minutes, when contacted by the nurse. The Court, however, held it a case of non-availability of the oxygen cylinder and not of any negligence on the part of the accused doctors. The Court, thus, held that the hospital might be held liable in civil law. We can see that in this case the doctor was late which delayed treatment and an oxygen cylinder which is vital in hospitals was not available. Here, even though the required skills were possessed by the professional, the problem was him not performing it with the possessed skills.

A professional can only be held liable for negligence in only two cases: –

1. He did not possess the required skills needed to be possessed by a professional.

2. He did not exercise the possessed skills, with reasonable competence.

The criteria for being applied for judging, whether the person was negligent or not was to be bases that a person was exercising ordinary competence as it was not necessary for every person to exercise the highest level of expertise in the branch in which he practices. To establish liability on the basis of deviation from normal practice , [5]there are 3 criterias to be fulfilled : –

  1. There is a usual and normal practice
  2. The defendant has not adopted it
  3. That the course is adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care

The above tests have been stated as a determinative in of negligence in profession by Charlesworth and Percy in their work on negligence.

In Poonam Verma v. Ashwin Patel and Ors., a doctor registered as medical practitioner and entitled to practice in Homeopathy only, prescribed an allopathic medicine to the patient. As a result the patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband. The doctor who was entitled to practice in homoeopathy only, was held under a statutory duty not to enter the field of any other system of medicine. Since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct held amounted to negligence per se actionable in civil law[6]

CONCLUSION

Negligence is a tort evolving from the Britain law and it was adopted by the Indian law as an important tort. Negligence is of two types- civil and criminal here, we discussed about the civil part of this tort. Civil negligence is when a person ignores to take ordinary care which a reasonable person would have taken. To prove that the act performed was negligent all the essentials mentioned above has to be proved. Contributory Negligence is a defence which is available to the defendants preventing plaintiff from getting compensation from a suit filed by him. It is when both the plaintiff and the defendant are at fault. In this case the burden of proof always lies on the defendant. In contributory negligence the defendant has to prove that the plaintiff had failed to take reasonable care for his safety and was contributing to the harm ultimately suffered by the plaintiff.


[1] Jacob Mathew v State of Punjab AIR 2005 SC 3180.

[2]Municipal Corporation of Great Bombay v Lakshman Iyer AIR 2003 SC 4182

[3] EMANUEL G.D VAN DONGEN & HENRIETTE P. VERDAM, THE DEVELOPMENT OF THE CONCEPT OF CONTRIBUTORY NEGLIGENCE IN ENGLISH COMMON LAW pg. 64.

[4] Jacob Mathew v State of Punjab AIR 2005 SC 3180.

[5] R.K. BHANGIA, THE LAW OF TORTS, CHAPTER 11, pg. 324.

[6]R.K. BHANGIA, THE LAW OF TORTS, CHAPTER 11, pg. 326

SABARIMALA TEMPLE CASE

By: Kriti Agrawal

Introduction: –

Case Name:  Indian Young Lawyers Association & Ors vs The State of Kerala & Ors.

Citation:  Writ Petition (Civil) No 373 of 2006

Parties name:  Indian Young Lawyers Association (petitioner)

Travancore Devaswom Board (respondent)

State of Kerala (respondent)

Pandalam Royal Family (respondent)

Chief Thanthri (respondent)

Bench: Deepak Mishra, A.N. Khanwilkar, Rohintan Nariman, Indu Malhotra, D.Y.   Chandrachud

Sabarimala Temple, dedicated to Lord Ayyappa is an ancient temple. The temple is set over one of the eighteen mountains scatter over the Western Ghats known as Sannidhanam, situated in the district of Pathanamthitta in Kerala. The devotees of Lord Ayyappa believe that the strengths arise from his austerity, in particular him being celibate. Celibacy is a method that is accepted by travellers before and during the journey. Those who believe in Lord Ayyappa and request prayers are anticipated to pursue a strict ‘Vratham’ or a promise over 41 days which lays down a set of methods.

The practice of restricting and banning the women from entering and participating in these 41 days of penance ‘vratham’ has been examined by the Ayyapan community since period immemorial as contended by the Thantri of the temple. The God at Sabarimala takes the aspect of a Naishtika Brahmachary along with examining a penance, the supporters are presumed to wear black clothes and cut all family relations while examining the ‘vratham’. It is contended that a variation from the celibacy and abstinence examined by the supporters would be affected by the existence of women. Women have not been able to be a part of this journey because of assumptions regarding their physiological characteristics, deeming them weak and unfit for the arduous journey. According to Hindu beliefs women are considered to be impure while menstruating. Thus, the temple councils have placed regulations on the entry of women between the ages 10 and 50 to protect the temple’s sanctity.

In 1990, S Mahendran filed a plea in Kerala High Court pursuing a ban on women’s exclusion of entry to the temple. But Kerala High Court ratified the age-old constraint on women of a particular age-group entering the temple. On August 4, 2006, the Indian Young Lawyers Association documented a petition in the Supreme Court striving to assure entry of female supporters between the age group of 10 to 50 at the Lord Ayyappa Temple at Sabarimala. 

On September 28th, 2018, the Supreme Court enacted a decision that enables entry of women in Sabarimala temple. This decision dealt with various issues before coming to this decision; the article will further deal with the issues brought up by the petitioners and examined in the case.

Issues for which petitioner contended: –

Ban on women based on physical factors violates Article 14 which deals with right to equality, Article 15 which prohibits discrimination, Article 17which deals with abolition of untouchability and any such procedure which is actually violative of other noted rights cannot be conserved by “morality” under Article 25.

Does practice of not including women comprise an “essential religious practise” under Article 25 and can a religious organization claim that it arrives under the umbrella of Right to govern its conspiracies in the courses of religion?

Whether Ayyappa Temple has a denominational personality and, if so, is it acceptable on the part of a ‘religious denomination’ governed by a statutory committee and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to satisfy in such exercises infringing constitutional principles entrenched in Articles 14, 15(3), 39(a) and 51-A(e)?

Does Rule 3 of the Kerala Hindu Places of Public Worship Rules authorize ‘religious denomination’ to prohibit entry of women between the ages of 10 to 50 years? Or if it accomplishes then is it an infringement of Article 14 and 15(1) of the Constitution by restricting entry of women based on sex?

Petitioners Arguments: –

It was argued on behalf of petitioners that rather of religious arguments the prohibition was based more on the ground of specific practical physiological extents like the inability of women to ratify a problematic way of forests and mountains over 41 days arduous journey. These justifications are unusual.

It was also contended that contemplating women impure because they menstruate and they can’t be touched at that time is racism against them on the ground of their sex and practising of untouchability which is precisely illegal under our Fundamental Rights.

Also, Article 25 gives women the freedom to practice their religion too.

Regulation of women because of the celibate personality of the Lord Ayappa is demeaning to the women.

The rule 3 laid down by the Kerala Hindu Places of Public Worship Rules is violative of Fundamental Rights.

Respondent’s argument: –

These regulations can’t be questioned as they are on the ground of religion and traditions. It was contended that Lord Ayappa is a celibate and should be treated as an individual. Therefore, as a person, Lord Ayappa’s Right to Privacy under Article 21 should be conserved. The entry of women between 10-50 years of age,menstruating age, is the indifference with the celibate essence of the Lord Ayappa. It was also contended that it is not physiologically feasible for women to seek 41-day penance. The ban stands as the very core of the assumption and forms an integral part of the religion. It was also argued that Article 15(2) does not pertain to religious institutions.

Judgment

The Court, by considering and contemplating over every significant factor, provided a judgment in favour of the petitioner in a 4:1 majority.

Arguing views of Justice Indu Malhotra:

Justice Indu Malhotra was the only woman judge who had a contrary belief on the bench. She urged that Article 25 guarantees the right to freely profess, practise and produce their faith to each individual, by the principles of their religion’ and the exclusionary practises were in unity with the tenets of the ‘Ayappan’ community. Hence, stating that it is not violative of Article 25. Further, she added that the Ayappan community is a distinct religious denomination which is conserved under Article 26 to govern its spiritual affairs and this matter is a blended question of both the fact and law which should be agreed before a competent court of civil jurisdiction. Justice Malhotra opined that courts do not have the power to interfere in private religious matters and unless very terrible religious processes should not be glimpsed with rationality. Upholding that the Rule 3(b) of the 1965 Rules is not ultra vires to Section 3 of the 1965 Act but just an abnormality for the advantage of the spiritual denomination. She asserted that Judicial survey of religious practices should not be put up with the care of by the Court as it is outside the ambit of the Court to justify belief.

Sabarimala 2019 review Petition

In 2018, when SC stated and upheld that any woman of any age is enabled to enter the Sabarimala temple. The decision confused a more extensive section of the society as it tampers with their spiritual assumption and beliefs. So, it led to violence among the male section and religiously staunch people who filed for survey petitions in the Court.

The Petition was documented against the 2018 judgement of the Supreme Court, and the main question of assertion here was that does Supreme Court’s scope is wide enough to infer and interfere in the matters of religion and faith. Petitioners argued that the worship in the temple is based on the celibate character of God. Constitutional belief is morally a subjective test, and it shouldn’t be used in the understanding of the faith. It influences their Right to practice their religion on their own. The theory of untouchability which was carried in the 2018 decision, was said to be false on the grounds that this concept is more about the context without due consideration and deliberation. The Court thus agreed to keep the journal requests on hold and also waited with the 2018 order which awarded women the Right to enter the temple until a larger bench agrees on this issue. Still, there are other similar questions in line which also gets influenced by this decision. So, the best is to not transmit any decision on it as of now. The Court also indicated dissatisfaction in the way people responded and not greeted the decision. People, instead of following it, confused and obliterated it to the way it weakened the importance of the Honourable Supreme Court. The Court on this opined that it is the Right furnished to the residents of the country that if they are not convinced with the decision of the Court, they can file review. Still, meanwhile every resident has to follow and accept whatever the Court lays down the rules as our Constitution establishes supreme Court to conserve and protect itself. It is the duty of respect its importance.

Conclusion: –

This decision came as a landmark judgment, particularly during a time when the country is religiously allocated. India is a country where belief plays a vital role in shaping the society. The decision is an advanced one and set an illustration that the orthodoxy, superstition, and patriarchy would never weaken the spirit of constitutional belief. Though while glancing into the petitions court has decided to deem different consequences interested to it in the future, but it again approved the same belief. It did not take away women’s rights which were given to them in 2018 ruling. The Supreme Court has thus shown that the primary importance of equivalence and belief is above any other belief and will be ratified always and forever above all.

AYODHYA VERDICT: END OF THE LEGAL, HISTORICAL, POLITICAL, SOCIO RELIGIOUS AND MORAL DRAMA OR THE BEGINNING?

By- Ipsita Aparajita Padhi

INTRODUCTION

Preceding the Bhoomi Pujan, the reverberated chants, and the laying of the foundation stone of Ayodhya Temple, there is the longest standing court battle that lasted more than a century. The dispute focused on a plot of land in Ayodhya which was of historical and religious importance to both Hindus and Muslims.

Different beliefs about the disputed site surfaced time and again, Hindus claiming it to be the birthplace of Lord Ram where Babri Masjid was constructed after the demolition of previous the Hindu temple. While the Muslim community believed the Babri Mosque was built rightfully.

In 1959, Nirmohi Akhara filed a suit seeking possession of the site claiming to be custodians of the disputed site. Following this, the Sunni Central Board of Waqf also filed a suit claiming ownership of the site in 1961. While these beliefs have remained the topic of controversy, the claims of ownership of the land by both communities led to the eventual lockdown of the place.

Finally, the 2019 Supreme Court Verdict brought an end to the long-standing civil dispute which time and again kept mixing with political undertones.

BACKGROUND

The Babri Masjid, named after Babur, which stood for years in the disputed site, was constructed in 1528 by Babur’s commander Mir Baqi. The land dispute started with the belief among Hindus that Babri Masjid was built in Ayodhya after destroying a Ram Temple. The Hindus believed Lord Ram was born at a spot where central dome of the mosque was later built. The Muslim party believed the mosque was constructed without the demolition of any place of worship and the land is rightfully theirs.

The legal recorded dispute in the site of Ayodhya dates back to 1858 when FIR was filed against a group for writing “Ram” and performing puja in the premises. This was the first documented evidence of the building of Chabutra confirming Hindus were present in inner and outer courtyard of the disputed site. [1]

In 1885, the case of building a temple in the outer courtyard was dismissed in civil court.

CHRONOLOGY OF THE CASE

  • 1856-57 – Riots broke out between Hindus and Muslims in the disputed site as a result of which a brick-wall separating inner and outer areas was built by the colonial government.
  • December, 1885 – In order to prevent riots, the civil court dismissed the suit of Mahant of Ram Janmasthan, seeking permission for building temple on outer courtyard.1934 – Dome structure of the mosque was damaged in conflicts between two communities which were significantly repaired by the colonial government.
  • 1946 – Akhil Bharatiya Ramayana Mahasabha, a branch of Hindu Mahasabha, started an agitation for the possession of the site.
  • 22nd December, 1949 – Hindu activists broke into the mosque and surreptitiously placed idols of Ram which people believed to have appeared miraculously.[2]
  • 16th January 1950 – Gopal Singh Visharad became first person in Independent India to file a suit against Muslims and government officials for right to pray and conducting puja in the inner courtyard.
  • 17th December 1959 – The Nirmohi Akhara instituted a suit before the Civil Judge at Faizabad to take over the managing affairs of the Janmasthan and the temple.
  • 18th December 1961 – The Sunni Central Waqf Board and residents of Ayodhya filed a suit before the Civil Judge at Faizabad seeking a declaration that Babri Masjid was a public mosque and for possession of the land.
  • July 1989 – Suit was brought before the Civil Judge, Faizabad for a declaration of title to the disputed premises and to prevent defendants from interfering or objecting the construction of a temple. An order for transferring all the suits to a three-judge Bench was passed by Allahabad High Court. [3]
  • 7th-10th October, 1991 – The BJP state government acquired 2.77 acres land comprising of the disputed premises and certain adjoining areas. Six writ Petition was filed before the High Court challenging the acquisition.

Babri Demolition Case:

  • 6 December 1992 – A group of Kar Sevaks destroyed the mosque, boundary wall, and Ramchabutra. A temple structure was constructed at the place under the erstwhile central dome. The idols were placed there.
  • 21st December, 1992 – Hari Shankar Jain filed a petition in the Allahabad High Court claiming that it was his fundamental right to worship Lord Ram in his birthplace.
  • 1st January, 1993 – High Court held its view that every Hindu has the right to worship Lord Ram at his birthplace.
  • 7th January, 1993 – Central government acquired 67.7 acres of disputed land in favour of Hindus by legislation called the Acquisition of Certain Area at Ayodhya Act 1993. It also sent a reference to Supreme Court to determine whether there was a temple at the disputed site before the construction of Babri Mosque.

Writ Petition was filed in the Supreme Court, challenging the acquisition by the government. The apex court held the acquisition as valid. Supreme Court, in this challenging case, said a mosque is not essential to practice Islam and Namaz can be offered anywhere and approved Centre’s acquisition of 2.77 acres of the disputed land.

Inadequate justice in Babri Masjid Case?

On September 30, 2020, the special CBI court concluded its investigation into the demolition case of Babri mosque of December 1992, and has acquitted all 32 of criminal charges.

The criminal case regarding Babri Demolition was on spreading enmity on the grounds of religion, giving statements which incited violence and possible criminal conspiracy.

In the trial, the evidences submitted by the journalists and witnesses were declared incoherent and inconsistent because some of them were contradicting each other and there was lack of proper original photos and videos.

2010 Verdict: THREE WAY SPLIT

In relation to the land dispute case, the Supreme Court prevented any religious activities to be allowed at disputed site.

The archaeological survey of India was given direction by High Court to carry out a scientific investigation using ground penetrating technology or Geo-Radiology at the disputed site. In 2003, the ASI submitted its final report saying some remains of an older structure was found at the site.

On September 30, 2010, the three judge bench of High Court, Justice Dharamveer Sharma, Justice Sudhir Agarwal and Justice S.U Khan, delivered their judgment stating Ram Lala, Nirmohi Akhara and Sunni Waqf Board as joint holders of the disputed site and awarded one third land to each party. [4]

2019: THE GRAND FINALE

On 9th November 2019 the final judgment of the case was declared bringing a century long dispute to an end. The Supreme Court ordered the land in the favour of Shri Ram Janmabhoomi Teertha Kshetra trust to reconstruct the Hindu temple. It allocated an alternate 5 acres of land to UP Sunni Central Waqf Board for building a mosque.

The Nirmohi Akhara suit was barred by limitation as the court declared it not to be a devotee of the deity Ram Lalla.

The Supreme Court dismissed all petitions seeking review on the verdict. [5]

DID IT DO JUSTICE TO RULE OF LAW?

The court averted a major crisis by upholding claims of the Hindu-majority. But in the process, some finer aspects of the rule of law were compromised in order to satiate the faith and belief of a community.

Rule of Law emphasizes on people to be governed equally, with just and non-arbitrary manner.

Considering the religious aspect in this case, the Court strongly affirmed the value of secularism and fraternity and significance of the Places of Worship Act 1991. In this judgment, it failed to balance between Law and faith.

It is still unclear if beliefs can be grounds for legal adjudication in a land dispute case without opposing constitutional morality. In this case, the unified territory is granted to the Hindu claimants in the end while the Hindu claimants have initially only staked claim on the outer territory.

CONCLUSION

With its golden ruling, the Ayodhya case came to an end with no aftermath outbreak which was considered a benchmark for Indian Judiciary, but in long run, it might impact the citizens of India. Maybe involuntarily it has urged minorities to lose faith in the judiciary system. In a world, where the legislature and executive are becoming majoritarian, the only option for vulnerable minorities is to repose their faith in courts. We can only hope the future outcomes will be fair and will bring back faith in judiciary system. With the acquittal of all the people suspected in demolition case, it sheds light on our inadequate justice system. What remains to be seen is how the Indian Justice system will keep the beliefs of minority community intact and do justice to them in the future. Is the current calmness in the atmosphere a sign of acceptance of the verdict or is it the calm before the storm? With the verdict being over, now government hopefully will revisit neglected developments around Ayodhya for the betterment of people.


[1] Prasant Padmanabhan, Ayodhya Verdict:  Historical, Legal, Social and Moral Implications, THE LEAFLET, (Sept. 29, 2020, 10:00AM), https://www.theleaflet.in/ayodhya-verdict-historical-legal-social-and-moral-implications/#

[2] Mamata Kumari, Case Summary: M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors, LAWLEX.ORG, (Sept. 27, 2020, 06:30PM), https://lawlex.org/lex-bulletin/case-summary-m-siddiq-d-thr-lrs-vs-mahant-suresh-das-ors/20823

[3] Rupali Pruthi, Ayodhya Verdict Out: All you need to know; Timeline of key events, JAGRAN JOSH, (Sept. 28, 2020, 08:00PM), https://www.jagranjosh.com/current-affairs/ayodhya-verdict-all-you-need-to-know-latest-updates-1573274100-1?ref=list_ca

[4] M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors, (2019), CA 10866- 10867/2010 (India).

[5] Tushar Kaushik, SC: Complete analysis of the Ayodhya Verdict including key observations, LAW BULLS, (Sept. 30, 09:00PM), https://www.lawbulls.in/ayodhya-verdict/

KESHAVANANDA BHARTI; PROTECTOR OF THE INDIAN DEMOCRACY

By: Navdeep Kour

The Constitution of India became effective on 26 January, 1950, it is the supreme law of the country India, the basic and fundamental document that provides the framework and working principle of the organs of the government and the authorities subordinate to it, it demarcates the structure, power, responsibilities, liabilities of the government and also provides the provision with respect to the fundamental rights for the people of the country, directive principles and the duties of the state. The framers of the Constitution while framing it, imparts a constitutional supremacy and not the parliamentary supremacy to the Constitution as the main motive behind it was the welfare of people. The Preamble of the Constitution assures Justice, Liberty, Equality and Fraternity to its citizens. It is the people of India, which are the source of authority under the Constitution.

The Constitution of India is both rigid and flexible, as we are living in the society that is developing and changing so in order to keep the pace with the development and change and to make a balance in the society, the Constitution is subjected to the amendment, article 368 of the Indian Constitution itself deals with the amendment of the Constitution, it is titled as, “Procedure for amendment of the Constitution.” It conferred power on the Union Parliament to amend the Constitution.

Now the question arises whether the power of amendment which is given to the Union Parliament is absolute? Court interpreted this power through various judgments so that Parliament could not amend the Constitution beyond the scope of the Constitution and for its own benefit though the Parliament has the power to amend the Constitution but it is the Supreme Court, which has to interpret the scope of such power. The most important and the landmark judgment with respect to the power to amend Constitution by Union Parliament is the KESHAVANANDA BHARTI CASE.[1]

The power of parliament to amend the fundamental rights given in part III of the Constitution for the first time came into question in the case of Shankari Prasad v. Union of India[2], where it was held that Parliament can amend the fundamental rights. In other case of Sajjan Singh v. State of Rajasthan[3], upon the challenging of the constitutionality validity of the 17th Constitution Amendment Act, 1964, the Supreme Court upheld the Parliament power to amend the Fundamental Rights, but there was conflicting opinions of the two Justices on the bench and this give birth to the two most landmark cases in the constitutional history of India since independence viz. GOLAK NATH V. STATE OF RAJASTHAN [4]and KESHAVANANDA BHARTI V. STATE OF KERALA. 

In the Golak Nath case it was held by Supreme Court that Parliament had no rights at all to amend the fundamental rights this was later overruled by Keshvananda Bharti case. In Keshvananda Bharti case

 Keshvananda Bharti case outlined the basic structure of the Constitution, in this case court consider the 24th, 25th, 26thand 29th amendments of the Constitution. In this case Keshavananda Bharti, the head of the muth in Kerala filed a petition challenging the Kerala Land Reforms (Amendment) Act, 1969, which was a government attempt to impose restrictions on the religious property which was against the Article 26 [5]of the Indian Constitution. In this case the bench comprises of 13 judges – the largest bench ever to sit in the Supreme Court. In this judgment was given that the power which is given to the Parliament under the Article 368 of the Indian Constitution is not absolute thought the Parliament have the right to amend the Constitution but without effecting its basic structure, which is the soul of the Indian Constitution and it was further held in this case that the Preamble is the very part of the Constitution. It was not specify in the case what constitute basic structure, leaving it open for the courts to decide it with respect to different cases. It was interpreted by the courts the doctrine of basic structure includes

  1. Supremacy of the Constitution
  2. Rule of law
  3. Independence of judiciary
  4. Secularism
  5. Federalism
  6. Fair elections
  7. Welfare state.

So the Supreme Court simply held that the basic structure of the Constitution cannot be altered.

Similarly Article 13 of the Indian Constitution also provides that all laws, whether pre-constitutional or post-constitutional, void, if they are inconsistent with the fundamental rights provided in the part III of the Constitution. Article 13 secures the importance of the Constitution.

Now the question is what would happen to the Constitution of India without keshavananda Bharti. Keshavananada Bharti was born on 9 December, 1940; he served as head of the mutt (a Hindu monastery) in Kasaragod district, Kerala. He was the petitioner in Keshvannanda Bharti case where he filed petition against the Kerala Land Reforms (Amendment) Act, 1963 through which Kerala Government was acquiring the religious property, he in his petition seeks that this action of the government was violating his fundamental right guaranteed under Article 26 i.e. religious right, he argued, along with his lawyer Nani Palkhivala and court passed the judgment that Parliament cannot amend the basic structure of the Constitution while amending the it .Keshvananada Bharti has saved the real essence of the democracy, as we know that India has a parliamentary form of the government and if in the Keshvananda Bharti case Supreme court had given the absolute power to the Parliament to amend the Constitution without any restriction then the India would possibly lose his democratic value and turned into totalitarian state where the Parliament would makes laws and rules according to their comfort and certainly the Constitution would have lost its supremacy ,the 39th amendment under Indira Gandhi prohibited any challenge to the election of the Prime Minister, President, Vice President irrespective of the election malpractice and  the 41th amendment made under Indira Gandhi government prohibited any kind of civil or criminal proceedings against the Prime Minister, President, Vice-President or the Governor and this not only during their term of office but forever, if the doctrine of Basic Structure was not passed by the court in Keshvananada Bharti case and Parliament would indeed be supreme, these amendments would have become the Part of the Indian Constitution and this would directly or indirectly effected the people of the country.

After the Keshavananda Bharti case an emergency was proclaimed in 1975, by the Indira Gandhi government to overturn the judgment given by the Supreme Court in the case and amend the doctrine of basic structure so that the parliament would get the absolute power in amending the Constitution but again Palkhivala argued so eloquently and the bench dismantled within two days. Later the doctrine of Basic Structure was reaffirmed by the Supreme Court in the case of Minerva Mills case [6]and Waman Rao Case[7].

So it can be concluded that Keshavananada Bharti a simple and ordinary man protected  the basic principle of our Constitution and the dignity of the individual from the power of the Parliament which can be used by them for their own benefit, without him the situation today would be totally different he fought strongly protecting the sovereignty, secularism, democracy the pillars of the Indian Constitution. A big thanks to Swami Kesahavananada Bharti Ji for their great contribution towards the welfare of the country. On 6 September 2020, we lost the Swami ji but he will be always remembered by the whole country for protecting the democracy and honour of the people of his country.   

REFERENCES

  1. Narender kumar, Constitutional Law of India, Allahabad Law Agency (9th Edition 2015).

EXTERNAL LINKS

Arvind P.Datar, The case that saved Indian democracy, The Hindu.

https://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-democracy.


[1] AIR 1973 SC 1461.

[2] AIR 1951 SC 458.

[3] AIR 1965 SC 845

[4] AIR 1967 SC 1643

[5] Freedom to manage religious affairs.

[6] AIR 1980 SC 1789

[7] AIR 1981 SC 271

Indian Women Behind Bars

By: Jhanvi Jain

India, a country where a woman is treated as a goddess and a slave even before the clock’s short hand completes its 360 degrees. Forty-eight per cent of India’s population consists of women but the female prisoners consist only 4.27% of the total prison population. [1]India’s 133rd rank in the Women peace, security index out of the participating 167 countries gives us a glimpse of the status of women in India. Most of the women living in rural areas have been subject to Injustices ranking from Battery to Dowry death. Women in India have been portrayed as a weaker strata of the society who are time and again suppressed by the Patriarchal society.

Here, I am going to portray the conditions of the Indian women in prison. [2]Women and girls make up 6.9% of the global prison Population. United States of America is the largest contributor to this percentage, it has a total of 2,11,870 female prisoners whereas India has only 17,834 female prisoners. There are only 18 states having exclusive prisons for Female inmates. Only 17% of the total female inmates live in exclusive women prisons, whereas the others are housed in female enclosures of general prisons. Out of the 17,834 women 11,916 approximately are under trial and the rest are convicts.

The majority (50.5%) of the female inmates in India lie within the age of 30 – 50 years followed by the ones between the age of 18-30 whose percentage amount 31.3. Whereas, the percentage of male prisoners between the age 30-50 years is 44and for between 18-30 years in 43.1.On taking this data into consideration we can undoubtedly state that the young men are more likely to commit crimes than young women.

The state with the most number of female prisoners is Uttar Pradesh with a number amounting to [3]3,553 approximately and the one with the least number of convicts is Lakshadweep Island amounting to zero. The most common form of crime for which the female section of the Indian society is convicted is murder. The number of women convicted for murder amounts to 3,000 approximately.

The Indian prison system has been managed by a large number of committees since independence. Let us look at some of them: –

[4]The first committee appointed was the Pakwasa committee in 1949 which stated the system of utilizing the prisoners as labourers for roadwork with intensive supervision. It also suggested to make Indian prisons reformatory. The second committee was set up in 1960 called the Model Prison Manual, it promoted to appoint a working group for prisons. Then came the third committee the Mulla committee, it was set up in 1980 it made some of the most prominent recommendation including setting up of an All India Service called the Indian Prison and correctional services and the under-trials in jails to be reduced to the bare minimum and the existing ones should be kept away from the convicts.

Then came on The Krishna Iyer committee (1987) also known as National Expert Committee on Women Prisoners, it was the First ever committee establishedspecially to study the situation of the women prisoners. The only recommendation made by the committee was to incorporate more women officers in the police force.

The living conditions of female prisoners in India is seen as pitiful, they go through a lot of problems daily some of which are stated below: –

  1. [5]Health- The National Prison manual states all the precautions to be taken for maintaining health of prisoners. It prescribes separate wards for men and women and a separate health screening for women prisoners. All prisoners are to be vaccinated before entering into the prison and special care is to be provided to the elderly prisoners and the prisoners addicted to drugs. The Chief Medical Officer is supposed to inspect the prison hospitals everyday and a lady officer is to be appointed for female prisoners. Women suffering from mental illness are supposed to be admitted in separate enclosures of Mental health hospitals instead of prisons.
    The rules stated above are not followed properly in Indian prison. Women suffering from mental illness are generally not given the care needed for their well -being, which sometimes even results in suicide. The number of lady doctors needed for women prisons is not satisfied and the health of the prisoners is still suffering.
  2. [6]Violence by correctional officers- No male is allowed to enter the female wards unless it is a licit duty. Women prisoners are only allowed to leave their wards for release, transfer, attendance at court and if the superintendent has allowed for special purposes in cases of transit from one jail to another or from jail to court they are allowed to be accompanied by a female relative. The process of search for drugs or any contrabands is to be carried out with ultimate decency in private places with a female officer.
    Even under such tight rules, there are still a large number of incidents of violence and sexual abuse faced by the female prisoners. According to the National Prison Manual if a prisoner has faced violence or sexual abuse they have to report it by seeking a legal recourse and lodging a formal complaint. Irrespective of the formal report they are to be given psychological support and counselling. It has been seen that many sexual violence cases in prison do not come to light due to their co habitation. As reporting against one of the guards can make it difficult for them to survive peacefully.
  3. Contact with their family members in the outside world- In 1979 The supreme court allowed the family members of the inmates to visit them on fortnightly basis. It allowed the inmates to call their family members and write them letters.
    But because of the social stigma against women going to prisons the visitors for them are often very limited.
    The National commission for women collectively with National Human Rights Commission revealed that the conditions of the waiting room and visiting rooms were pitiful. The large number of males were the dominant group in the waiting rooms which made the females more vulnerable.
  4. Children of the inmates- The supreme court in its guidelines in 2006 stated that children below the age of six years are allowed to live with their mothers in prison. The children in jail should be entitled to food, medical care, clothing, shelter, education and recreational activities. Many female inmates except high risk prisoners might even be allowed to be released temporarily for delivery. The National Prison manual provides for a crèche and nursey in every prison where children are present. The children have to be provided with a strict diet mandated by the government. According to a recent data in 2015 there are 1,597 inmates with a total of 1,866 of their children.
    [7]The basic amenities like psychological, biological growth of the child, crèche recreational activities are not allotted to the children. In some prisons only an extra glass of milk is given to the children as a special diet. After a child crosses the age limit of six years they are to be placed either in the care of their own family or in protective custody at an appropriate children’s home. The process of removal of the child from the mother’s care must be done with sensitivity towards the needs of the child, and only after ensuring that adequate alternative arrangements for the child have been done. Prison administration should ensure that their facilities are tailored towards children living under their care, and these children should not be made to feel like offenders.

The Prison system around the globe is ruled by ‘THE BANGKOK RULES’ established by the United Nations Office on Drugs and Crime. It establishes a set of ideal conditions for the female prisoners. Following them would be a wise step for India.


[1] SHE THE PEOPLE NEWS, https://www.shethepeople.tv/news/india-133rd-women-peace-security-index-2019/ (last visited Oct. 30,2020)

[2] PRISON STUDIES, https://www.prisonstudies.org/ (last visited Oct.30,2020)

[3] Ministry Of Women and Child DevelopmentWomen in Prison, 1 6 (2018), https://wcd.nic.in/sites/default/files/Prison%20Report%20Compiled.pdf

[4]Jail Reforms in India: A Study of Indian jail reform committees, International, Journal of Multidisciplinary Education and Research, Vol.-I, Issue 3, 2016

[5]Ministry Of Women and Child Development Women in Prison, 1 15-16 (2018), https://wcd.nic.in/sites/default/files/Prison%20Report%20Compiled.pdf

[6]Ministry Of Women and Child Development Women in Prison, 1 20-24 (2018),https://wcd.nic.in/sites/default/files/Prison%20Report%20Compiled.pdf

[7]Ministry Of Women and Child Development Women in Prison, 1 25 (2018), https://wcd.nic.in/sites/default/files/Prison%20Report%20Compiled.pdf

Legalization of Prostitution in India

By: Shruti Lather and Nilanjana Ghosh

The society that we live in today believes that it has done away with its unfair ways, making it a liberal space for people to coexist with one another. Over the years, there have been numerous changes in the society which suggests that it is gradually becoming more inclusive. However, there are a few realities that it is yet to accept, and prostitution is one of them. Prostitution is one of the oldest professions in the world. In India, prostitution as such is not a prohibited activity under the Immoral Traffic (Prevention)Act, 1956 (ITPA). However, solicitation of clients in public places, operating brothels, living off earnings from prostitution is prohibited, thus in effect, prostitution is illegal. Due to this stigma of illegality, sex workers are subject to continuous harassment from the procurers or pimps, brothel owners, client and the police. These workers exist in a violent and vicious cycle where nearly half of their earnings or more are taken away by their respective pimps and the brothel owners. Violence that sex workers are subject to has been normalized in our society owing to the illegal nature of their work which makes the them turn a blind eye towards the sex worker’s community. The legalisation of prostitution will help in fostering introduction of regulations to protect to the interests of sex workers and prove for providing them a better position in society.

The Immoral Traffic (Prevention) Act, 1956, was made with the intent to reduce immoral trafficking of persons and the exploitation under prostitution. This Act effectively declares prostitution to be illegal in a very incoherent manner. Despite the law in existence, prostitution is still rampant across the country. According to section 3 (2) (a) of the ITPA, “Any person who keeps, manages or allows premises to be used as a brothel, is it be punished”; hence making it clear that the existence of the very place required for carrying out the trade is punishable. Further, section 6 (b) of the Act states, “Any person who detains another within the premises of where prostitution is carried out, with or without the consent of the other with the intent of having sexual intercourse with a person who isn’t a spouse of such a person, is punishable under the law”. Section 7(2) (a), effectively states that being a keeper of any public place and allowing a prostitute to carry out their trade or remain in such a place shall be punishable under law. Considering the wording of the Act, it implies that letting a sex-workers carry on their trade is not permissible under the law. Further, the definition of public place as given in the Act is very broad because it includes any place accessible to the public, including any public conveyance.  Therefore, there is no place for these persons to undertake their trade. Section 8 (b) prohibits the solicitation of any form in public places and also punishes by way of imprisonment. All the sections stated above from the ITPA,1956, clearly declare all the activities that are required to undertake the trade, illegal. Thereby effectively making prostitution illegal. Since their activities are unlawful, sex workers are often prey to vicious harassment from their procurers/pimps, the police and their brothel owners. There is no protection due to the illegal nature despite the violent and vicious harassment; sex workers do not enjoy any recognition and live wretched lives.  

Individuals who work as sex workers are usually forced into this field against their will. In many cases, parents/guardians sell their children into this profession, others are lured into the trade on account of the promise of earning money and living the big city life or are kidnapped off the street and caged in corners of various brothel’s in India. Once these individuals are bought to a brothel, they are treated as though they owe their lives to the pimps or procurers and are exploited to unimaginable degrees. Since people who are forced into the flesh trade come from the weaker sections of the society, they are not well aware of their basic human rights and thus, are ignorant about the ones that are violated within these brothels. Violence against sex workers has been prevalent since the time of its inception especially in a patriarchal society like ours. Sex workers experience unbalanced degrees of brutality that include police brutality, rape, assault, provocation, coercion, maltreatment from customers and operators, private accomplices, neighbourhood occupants etc.

In 2014, the Special Rapporteur on Violence Against Women (SR-VAW) following a visit to India observed, “Sex workers in India are exposed to all sorts of abuse including physical attacks and harassment by clients, family members, the community and state authorities; they are forcibly detained and rehabilitated and consistently lack legal protection; and they face challenges in gaining access to essential health services, including for treatment of HIV/AIDS and sexually transmitted diseases.” Recent studies have shown that sex workers experience harassment, physical violence, and rape in the pretext of HIV/AIDS research. Various researches  have highlighted multiple vulnerabilities of the street-based sex workers stemming from independent solicitation of clients, placing them at higher risk of brutal violence, rape, and exploitation. This results in increased risks of sexually transmitted diseases (STDs) like HIV, inability to negotiate safe sex, especially with clients under influence of alcohol.

Research on sex work in India has mainly been focused on interactions of sex workers with clients, HIV prevention awareness drives and condom-use experiences. It has been noted that intimate relationships of sex workers are often subject to violence by their partners as well as clients. This sometimes includes sexual coercion. Female sex workers are often excluded from the conversation about the experiences of women facing violence in intimate relationships. This is probably due to the assumption that there is a higher risk of adverse consequences resulting from the interaction with their clients when compared to intimate loved ones. While there is a significant body of research which documents experiences of intimate partner violence (IPV) amongst women in the general population, documentation of these experiences for female sex workers is negligible. The flesh trade workers are not only subject to violence from their intimate partners and clients but are also subject to it from the police as well as the state. In our society, sex workers are viewed as objects that can be violated and be mistreated to an inhumane extent. This implies that the flesh trade does not become a vicious trade in itself considering the harsh treatment that the community receives from the Indian society. According to the Skillet India sex labourer review, the police had manhandled 37% of female sex workers, 51% of the female sex workers reviews expressed that when they had wished to seek help assistance from the police it instead resulted in offensive attacks from them and 22% of workers stated that they had been compelled to offer incentives to the police in return for getting police assistance. It can therefore be assumed that sex workers are in need of protection from the ones who are supposed to be the protectors of our society.

The State is ignorant of the violence faced by the sex workers and it itself subjects the community to savagery. It neglects the issues and concerns of the sex workers by equating their profession to a criminal activity which incites sexual brutality in our society. This situation has worsened with time because sex work is wrongly perceived as criminal behaviour or is seen as an unlawful activity, driving the ‘industry’ underground. Sex workers face violence from military personnel, border guards and correctional officers and mostly from the police. ITPA (1956) provides cover for such violence and not only compromises the access to justice for such persons but also deprives them of police protection. Hence sending a message that ‘such violence is not only acceptable but socially desirable’ in our society. Most of the time violence against sex workers is not defined or perceived as a criminal act. Rules and policies, including ones that criminalize sex work, increases sex workers’ vulnerability to violence. Harassment or fear of arrest by the police forces the street-based sex workers to move to places that are far-less secure or pressure them into hurried negotiations with clients that may compromise their ability to assess risks to their safety.

The illegality and stigmatization around sex work in India leaves the workers unwilling to disclose or report/ seek help from the so called “justice system” when subjected to any kind of violence or harassment. The harsh adversities that these individuals are put through not only leaves them with severe health conditions but also contributes to mental health issues and leaves them with PTSD. The illegality of the trade leaves them at the mercy of the police/the pimps, owners etc. which other breeds toxicity in individuals. There are a few trade unions across the country that provide aid to sex workers and address their concerns. But the number of such trade unions is meagre because of the illegal nature of their trade. Further, these unions are not as powerful because they are not officially recognized under law, unlike the unions operating in a legal trade like manufacturing etc. Trade unions have shown that if sex workers are identified, they will be able to organize themselves better and lead better, respectful lives, care better for their children etc. and hence, legalization of prostitution is necessary. It will enable sex workers to officially collectivize and form unions to secure their rights and demand better for conditions.  It should also be legalized to ensure the welfare of their children. The documentary, “Born into Brothels” shows the harsh reality of the red-light areas of such children. The children who have been documented have so many hopes and aspirations from their life so much so that they pray each day, hoping they do not end up like their parents. In order to give these children a chance and help them secure admission into decent schools, it is necessary that the trade be legalized.

Therefore, it can be concluded that legalization of prostitution will reduce the brutality that sex workers are subjected to, somewhat do away with the social stigma attached to profession and give them a chance to better their lives. Thus, legalising the professionwill finally help them take their first steps to live as dignified citizens of this country.

Works cited

  1. Born into Brothels, Directed by Zana Briski and Ross Kauffman. Performance by        Zana Briski, Kochi, Avijit Halder, Shanti Das, Manik, Puja Mukherjee, Gour, Suchitra, Tapasi and Mamuni.  HBO Documentary Films, 2004. Documentary streamed on Vimeo.com.

vimeo.com/365877481

  • Immoral Traffic (Prevention) Act, 1956. Print.

            indiacode.nic.in/bitstream/123456789/1661/1/1956104.pdf

  • Para 20, Page 6, Report of the Special Rapporteur on Violence Against Women its causes and consequences, Rasheeda Manjoo, Human Rights Council, twenty sixth session, A/HRC/26/38/Add.

THE KILLING OF VIKAS DUBEY- DEMISE OF CONSTITUTIONAL AND CRIMINAL LAW JURISPRUDENCE

By: Swapnil Nayan and Mayank Tiwari

Introduction

Recent events have made people believe that terrorists may not be only be the people carrying an AK-47, nefariously killing men, women and children and vandalizing property, Terrorists could be someone carrying the badge of the Indian Police Service.

The Supreme Law of the land has stipulated the contours of the different institutions which must work harmoniously within their specified boundaries in order to prevent chaos. Several incidents have been witnessed where the police force have been working towards fulfilling the political interests of the ruling political party and seeking vengeance giving staunch disregard to any procedural guidelines.

Emphasis must be laid that the Police is only authorized to arrest the offender and the power to punish still resides with the Judiciary.

The recent incident on the Kanpur Highway, did not reveal but reaffirmed the presence of Extra-Judicial Killings rampantly executed by the police. The killings are conducted by the police by misusing the protection granted by the Code of Criminal Procedure under Section 46(2), where they are allowed to take all means necessary to effectuate the arrest. But, the judiciary have been stern on its view that the provision must be the last resort and never the first one.[1] But, the police authorities have been cunningly orchestrating events and purposefully killing the alleged offenders.

On 10th July 2020, after making the arrest of Vikas Dubey, a notorious criminal who had absconded after he resisted his arrest using heavy artillery on the police force killing seven and injuring several others on the intervening night of 2nd and 3rdJuly 2020. This incident acted as the commencement of the subsequent vengeful acts by the police through several violations of the procedural guidelines. On 4thJuly 2020, Vikas Dubey’s house in Bikru Village was demolished by the police authorities without any authorization or explanation. On 9thJuly 2020, he was arrested in Ujjain, Madhya Pradesh, but in the meantime the police authorities killed several of his close aides.

On 10th July 2020, the vehicle carrying the arrested Vikas Dubey allegedly overturned after which he tried to escape after snatching the police gun. Hence, in order to prevent him from escaping he was shot dead.

Co-incidentally a similar event happened in the December 2019, where the accused of the brutal rape and murder case in Hyderabad were taken early morning for scene recreation where they tried to escape by snatching the police gun. Any reasonable person would comprehend the purposiveness and orchestrated nature of the act where the in pursuance of preventing the escape by the criminals the murders by the police were harbingered.

Both the case carried public sentiments and was highly sensitized by the media and carried heavy public outrage.

Legal Perspective Of Extra-Judicial Killings:

Criminal Law Perspective:

It is a settled principle of Criminal Law Jurisprudence that, “Innocent until proven guilty” which is an extension of the principle of the National Justice. In the events of extra-judicial killings, there is a departure from the Criminal Law protocols at each step and pertinently in the case of Vikas Dubey’s assassination, the entire stage of Criminal Justice System is set on fire by the police,

  • The police acted in excess, which is neither justified in the light of Right to Private Defence. It is well-settled principle of Criminal Law, that in the light of self-defence one should not act as an aggressor[2]. The police, who were apparently more in number, could have taken other alternative steps to capture the accused live, but shooting him directly resulting in his death could have been the last resort of the police, but not the first one.
  • The role of police was also in excess to the power bestowed upon them in the light of Section 46(2) of the CrPC. The accused is shot down, which implies he was shot on a vital organ. The hon’ble Court has unfavored shooting any accused on the vital organ in order to effectuate the arrest[3].

Constitutional Law Perspective:

Article 21 is the safeguard against the life of any person, which is the most sacrosanct provision of the Constitution. In the celebrated case of Maneka Gandhi v UOI[4], the Hon’ble SC opined that the procedure for limiting the right to life must be just, fair and reasonable. In the episode of Vikas Dubey’s assassination, the steps taken by the police was unjust and unfair, as already explained from the criminal law perspective. This also led to,

  • Departure from the principles of Natural Justice, which advocates the importance of Right to fair trial of even the deadliest accused[5]. The steps taken by the police are violative of the principles of separation of powers as Vikas Dubey could be punished only by the competent court but the steps taken by the police, was already in excess led to his denial of fair trial.
  • The basic framework of democracy and criminal jurisprudence rests on the application of Natural Justice and the acts of the police in the light of extra-judicial killings leads to the sheer encounter to the principles enshrined under the Preamble which talks about the social equality and justice.

In Rohtash Kumar v. State of Haryana[6], it was held that merely because a person is a dreaded criminal or is accused of an offence, the police officers cannot kill them in cold blood and must make all effort to arrest them. This case further establishes that the Fundamental Right to life is sacrosanct and cannot be denied to an accused, except as per procedure established by law which must necessarily be fair, just and reasonable. 

Way Forward- What Next?

The recent incidents have proved without a speck of doubt that in the garb of protection and discharge of sovereign duty several extra-judicial killings have been made by the police authorities. The abysmal situation poses severe threat in the justice system of the country as a fame or money driven police officer could generously kill innocents and facilate the actual offenders to abscond. But, in order to address the problem firstly the real problem needs to be ascertained. The Problem is not the extra-judicial killings but the public approval of killings and eulogy offered to the executors. This reveals the people’s lack of belief on the Legal System of the country. The humongous time taken for the disposal of a single matter and the extensive legal process which prove to be harassing for the families of the victim. The quote ‘Justice delayed is Justice denied’ have manifested itself and rendered a nefarious solution of encounter-killings. The public support and reverence bestowed upon the police officers who execute the killings act as a motivator for them to continue the horrendous act. The media have recently made a significant contribution to the issue. Therefore,

  • The government should set up special courts for the fast disposal of matters.
  • The legal process should be made less cumbersome.
  • The country is currently facing a huge deficiency of Judges which result in pendency of matters, thus necessary recruitment must be made.
  • India is also facing a deficiency in needed number of police personnel, thus resulting the present forces to be overworked and even underpaid. Therefore, necessary recruitments and payment elevations must be made.
  • A strict vigilance must be made on the media in order to ensure that neither a eulogy is bestowed upon the police officers who execute encounter killings nor any encouragement for such an action is presented.

[1]Om Prakash v. State of Jharkhand, (2012) 12 SCC 72.

[2]State v. Ramesh AIR 2005 SC 1186

[3]Sri Gobag Nazari v. The State of Assam Writ Petition- 3050/2008 Decision on Aug 3, 2015 Gauhati High Court.

[4] AIR 1978 SC 597

[5]Supra Note. 1

[6](2013) 144 S.C.C. 290.

THE SCAM 1992

By Yashika Patel

 INTRODUCTION

The year 1992 made history by witnessing the biggest scam committed in the stock market of  India the main malefactor was Harshad Mehta who was known as the big bull of the stock market. The scam was done in a systematic way by making fake bank receipts which crashed the stock market, the scam did not start from making fake receipt it was much earlier than this when there was so much speculation in the stock market where no one paid attention as everyone was satisfied with the profit and refund they were getting Harshad Mehta was able to pull over this scam any years but Sucheta Dalal exposed him in one of his articles where she declared all the money used in the scam belongs to the people of India, Harshad  Mehta was able to do this scam as that time there was lack of securities, no online technology was used. One of the greatest scams that history has noted in Indian finance was non other than scam 1992, Harshad Mehta was born in 1954 in a Gujarati- Jain family spent his childhood in Mumbai. In 1976 Harshad Mehta completed his graduation from LalaLajpatrai Collage in Mumbai after completing his graduation he did many sales jobs due to these sales job he got his interest in the stock market in the early 1980s where he worked with any brokers, in 1984 he himself taken broking license from BOMBAY STOCK EXCHANGE (BSE) from where he started his own company named Grow more Research and Asset Management after forming his company in 1984 Harshad Mehta started his trading actively in BSE this was the time when the stock market has seen its fluctuation but no one took any interest in the fluctuation as the returns were in great amount. After this Harshad Mehta’s popularity was on peek he was in media like a star where he was given many names such as the Big Bull, Radiating Bull, the Amitabh Bachan of the stock market.

 Badla system whose basic meaning is getting something in return this system involves the buying of stocks with the borrowed money, this exchange act as an intermediary at the interest rate, and the maturity of this exchange is not more than 70 days, this is also known as forwarding Trading which deals with two kind of views- bullish view and bearish view. In Bullish view, if someone wants to make his position in the stock market so he will no more take any delivery of stock but if after 15days the stock value gets high so he will sell off the stock and have his profit but on the other hand if he suffers a loss which means stocks value gets low so he didn’t invest in stock this whole scenario explains that a person with low capital can invest and get a high profit. In Bearish view, if a person had a bearish view so similarly, he can do short selling without investing high capital.

But in 1969 forward trading was banned after which every stock exchange amended their laws because of which this badla system came into light and in some stocks this trading was allowed and these stocks were big in size so these stocks were known as specified shares these were categorized as group A shares where badla system was allowed. There were some shares in which badla system was not allowed which were known as non-specified shares, group B shares where badla system was not allowed.

Badla system was fully exploited by Harshad Mehta for price rigging as there was low use of capital and he was able to speculate more and in December 1993 badla system was also prohibited by the government. After banning and exploiting lack in the supervision of RBI were seen where RBI allowed NON –BANKING FINANCIAL COMPANY (NBFC) this was engaged in the business of loans and advances, and NATIONAL HOUSING BANK  these two companies were working without any regulations. Foreign banks were also allowed to operate in India in fact in the peak time of scam that is April 1991 to May 1992 maximum of 56% of irregular transactions were done by the foreign bank due to which CITI BANK, BANK OF AMERICA, AMERICAN EXPRESS, ANZ GRINDLAYS  had to earn their maximum profit.

There were no such regulations made for stockbrokers as there was a minimum capital requirement, there was no audit on their accounts they were doing one kind of transaction in one account whether if the transactions are related to brokerage or unity.

ROLE OF BANKS AND PSUS IN SCAM

As earlier, it gets to know that Banks Non-Profit Assets were increasing on that time requirement of SLR and CRR were high. SLR stands for Statuary Liquidity Ratio which has to be maintained by banks in the ways of reserves or in the form of government securities, there was a huge percentage change in SLR as it was 34%in the year 1980-81 but after the starting of the scam SLR were 38.5% in the year 1990-91. CRR which stands for Cash Reserve Ratio which has to be maintained by banks which ensures the security amount makes it readily available for the customers when they want their deposit back. The most shocking percentage was seen in CRR that is from 6% in 1980-81 it took a jump to 25% in 1990-91.

If we try to calculate SLR and CRR which will result in 63.5% which means this much percent of funds are blocked in the banks for the lending purpose that is the bank can give only 36.5%and not only this total 40% will be given to priority sector lending that is 14.6% and 60% of 36.5 % will be available for commercial lending.

Priority sector lending was given to agriculture, small business, professional, small scale industries, so in all these sectors there was a big default did by banks as they were poor quality of assets and many political influences were involved such as loan waiver, because of all these political influences banks profitability were declining thus in late 80s bank started emerging NBFCS.

The advantage of emerging NBFCS was there was no need for SLR and CRR, no priority or lending requirement. They were allowed to make their independent decision on investment, these NBFCS stated there many portfolios schemes so that all the money came from this scheme can be invested in the stock market.

BANKS and PSUS started their investment in the stock market because they wanted a good return which resulted in the diversion of funds from PSUS in the stock market. PSUs were receiving all the funds from the government budget and after some time in 1985-86 PSUS were allowed to float bonds in markets and raise their funds. from all this, we can say BANKS, NBFCS, and PSUS all were in a race for a good amount of funds in return from the stock market for this they needed brokers and brokers were already in the need of funds.

THE SCAM 

 Firstly we should know about the major events which happened in the scam which held between the period of April 1991 to May 1992 it was seen in the year 1991 the value of Sensex was 1250 but in 1992 the value was not only doubled it was more than double value that is 4467 which is only one year Sensex value was four times more from this much growth of market it was understood that stock market was not running on fundamentals there were speculations the stocks where Harshad and his accompanies were trading there value was increasing those stocks were ACC(Associated Cement Companies), Appollotyres, Reliance, Videocon, Tisco and BPL. The high value of stocks was explained by Harshad Mehta by giving the theory of Replacement Cost which means the amount paid for replacing the existing property with the new one which has some utility. Execution of scam started when SLR  requirement where the bank was required to take some funds under government securities as all the funds used to get locked for maintaining liquidity for which they had ready forward deal which is derived as a short term loan which is typically given for 15days, these deals were done to secure loans against government securities.  For example, Bank A is a leading bank and Bank B is a borrowing Bank, now Bank A will lend Rs 100cr to Bank B in favor of which Bank  B will sell its government securities to Bank A only for 15 days. After 15days Bank B will pay off the loan with interest to Bank A and Bank A will give back the securities to Bank B. These transactions were very simple and easy to do between the banks but in the year 1991-92, these transactions were done on the daily basis due to which banks have many transactions and entries related to them could not be maintained this was one of the drawbacks.

Bank receipt concept came in the banks where if any bank is in the need of funds then they can ask Bank A for funds by providing them Bank receipt instead of securities but there was an issue that how will lend ing bank will get know which bank is in need of fund and vice versa there also broker played an important role.

Harshad Mehta deal phase 1- The Bank receipt has an easy way of running the borrowing Bank and the lending bank had a broker in between where lending bank use to give funds to brokers account and then the broker use to give those funds to borrowing Bank and taken BR to the other bank it was a legal transaction. But in case of Harshad Mehta, he use to take bank receipt from borrowing Bank and find a bank which is ready to pay the funds and give the Bank receipt but now the funds will not be given to the borrowing Bank but it will be invested in the stock market which will result in speculation of stock from where profit will be earned

Harshad Mehta deal phase 2- Now Harshad started building his connections with the borrowing banks specifically with Bank of Kared and Metropolitan Cooperative Banks from this bank he uses to issue fake bank receipt which means these banks have no security and this fake receipt was given to banks who in favor provides with the funding those funds were invested in the stock market and the profit made out of them were given to investors and actually needed funds were given to the bank in need. But the lending bank had huge losses these banks were SBI, ABI CAPS, NHB, and many more but there were some banks who earned a good profit in this bull run these banks were basically foreign banks such as CITI BANKS, BANK OF AMERICA, etc.

This does not last for forever as it could be seen fundamentals were not strong the stock prices were artificially increasing but the question arises when the stock market was increasing which meant that a lot of money was invested in artificial increasing.  On 23rd April 1992 Times of India published an article by SuchetaDalal which unfolded all the folded pages where things get to know about the irregular transactions after the release of this scam Sensex came to a path where he was losing all his wealth stocks were Rs 4467cr which declined to Rs 3000 in May 1992 and Rs 2500 in August 1992.

On 30th April 1992first investigation team was formed named as JANKIRAMAN COMMITTEE, as Jankiraman was the Deputy Governor of RBI motive of the committee was to know about the loss of financial institutions which resulted in Rs 4024cr loss happened to Banks and Financial institutions, after the result of the committee it was said that Rs 4024cr loss happened but what about the money losses by PSUs which worth Rs5746cr and many foreign banks had profit because of irregular transactions. Due to this Parliament had many discussions regarding this committee and opposition was asking for further losses in respect of this in August 1992 JOINT PARLIAMENTARY COMMITTEE was made with the motive to know about the involvement.JPC continued its investigation for 17 months in December 1993, Harshad Mehta was arrested on 9th November 1992where he was banned by SEBI  72 criminal charges and 600 civil lawsuits were filed, the investigation pointed out many loopholes

  1. The scam started in 1985 where there was the involvement of RBI top officials, Ministry of Finance, Banks, NBFC Ministry involved.
  2. Jankiraman, the deputy Governor of RBI was also blamed for this as he was in charge of the Public Debt office who is in charge of Government securities where all the SGL Accounts was maintained all this scam happened inside Government securities.

After all the names came in the report of JPC SBI chairman was given leave, NATIONAL HOUSING BANK(NHB) chairman was made resigned UCO bank chairman was arrested P.chidambaramwho was the minister of commerce also given his resignation on the basis of moral responsibilities. Inter-Disciplinary Group(IDG) was made in December 1993 whose part was CBI, RBI, Income-tax department and Directorate of Enforcement, in December 1995 IDG given his report where they told the endues of the money but this investigation was a time consuming where they asked for more time in the investigation but after all these investigations it was sealed, in September 1999 Harshad Mehta was jailed for 5 years. In 1992 SEBI became the statutory authority with a separate legal entity, after which SEBI made several changes in regard to the security shares

SEBI Guidelines after the scam 1992 :

  1. Strict norms were introduced that are full disclosure in respect of the material facts, risk factors, etc.
  2. Listing agreements were introduced by SEBI where the company has no confusion regarding the set of rules to be followed.
  3. A code of conduct was introduced where it was made mandatory for all the companies to make a disclosure about the investors for the purchase of the securities.
  4. There was an introduction of online, screen-based that is electronic trading was introduced in the National Stock Exchange and Bombay Stock Exchange.
  5. Badla system was replaced by carrying forward system.

PROSTITUTION IN INDIA

By: Yashika Patel

INTRODUCTION

India is one of the developing countries, because of its changes and technology but one thing which does not change is prostitution. prostitution is an old age concept. It becomes a part of Indian culture but also this profession has not got any remembrance in the society. Immoral trafficking and prevention act 1986 are the current laws which deal with prostitution.

                   As we all know that Indian law is very bulky and unclear when it comes to the prostitution law. In today’s world prostitution is practice openly in the public places it is a type of offence. The most terrifying part of this profession is that if any girl is once trapped in this work then society as well as her parents refused to accept her and then she has no other option other than to accept the situation. There are at least two million sex workers working in India excluding unofficial numbers. There is no proper law for this profession. The people in the current society things that even the word prostitution is taboo.

                    Most of the girls are kidnapped or trapped from the rural areas and then they are transported to big cities like Mumbai, Kolkata, etc. In India the biggest red light area situated in Mumbai and Kolkata. They are forced to live in a condition that is not safe for hygienic for them. sometimes they have to serve more customers in a day which leads to many diseases some of them are sexually transmitted diseases, age, breast cancer, etc.

                      Before moving towards a debate that why prostitution should not be legalized. Firstly why the society always blame the woman who said her body to on her livelihood why they are not believing those who are buying them for stops there should be strong reason for legalizing it.

HISTORY OF  THE PROSTITUTION IN INDIA

Everything today we see has a history some things were started in history they ended in history as well but some are followed today also that is prostitution, now history has been classified into three categories named religious, ancient and literature. The religious history is all about supreme people (god) which we worship on the name of God their sayings , teaching, and characteristics.

              It is also mentioned in Vedas that in the court of Indra had two dancers in his court namely Uravasi and Menaka they were known as the biggest assets of his court. It is also said that whenever his crown was in danger these dancers were used as weapons by sending them to enemies to distract and seduce them with their beauty but now these women are called prostitutes on that period they were given respect. Not only in Vedas but Bible has also mentioned about the prostitutes in which a woman was welcomed by the Jesus Christ in the kingdom knowing that she is a prostitute.

                          Our attitude is making the prostitutes suffer if we are following the sayings of our God then we should not have different approaches for prostitute and prostitution. India is a country where in ancient times prostitution was common from Gupta’s to Aurangzeb in their courtroom also prostitutes were called to entertain them they had a importance .kings use spend time with them to release their stress and at war they use to go along with them to provide sexual services to the soldiers to motivate them to fight in battlefield.

     The festival of Navratra is most  famous festival in India this is celebrated for coming of lord Durga in nine different ways or avatars for nine days there use of 18 soils to make a statue of lord Durga which is taken from different places one of the place from where this soil is taken is the home of prostitutes . The ironical thing about India is the statue of God is  made from the soil of prostitutes doors and now women’s are considered to be not more than garbage.

                      The sculptures are the best example of history in which they describe about sex it can be known from this our ancestors were open minded they use to think out of the box that’s why sex was also said an art they didn’t avoid these things but as fast as we our moving towards modernization people have started thinking the word  prostitution as a abusive word. Nor its time to think about prostitution otherwise equality will be a myth.

Legalization of prostitution is the need of today’s world , as there were many practices which were made by our ancestors which were followed in history for instance the practice of sati , burning the widow with dead body of her husband, was also abolished in 1829[1] from this we can take one lesson that everything cannot viewed from same angle according to the perceptions of others buying and selling of sex is considered as a taboo in the society and sex industries are also flourishing the people who buy sex is two faced person at one part they would be against prostitution but at one part they are in favour of prostitution .

CAUSES OF WOMEN INTO PROSTITUTION

  • POVERTY AND UNEMPLOYMENT

Poverty and unemployment compelled the woman to enter into the profession there are various factors which indulge women into prostitution that is shelter, hunger, age, gender, etc. Unemployment and lack of shelter are found to be a more influential prediction of women entering into prostitution due to this poor financial situation they are lead towards prostitution It is always noticed that single mothers fluently become a part-time prostitute to play for their maintenance.

  • FAMILY EXPECTATIONS AND PROBLEMS

In many regions women are forced to support their families sometimes constant sexual abuse from parents and relative which lead them to leave their houses much prostitution present in brothel houses because of the sexual abuse and it has been stated that those children who are sexually abused will likely to be prostitution in future.

  • WOMENS HAS BEEN TRICKED INTO PROSTITUTION

Women’s from ruler area tricked by telling them to earn money in big cities and many womens are trafficked from different countries if we take the example of India then prostitutes many victims are traffic from Nepal Sri-lanka that they would given good jobs, therefore, they get attracted to job sometimes they are kidnapped often.

     Case – Gaurav Jain v/s Union of India[2]

Public interest litigation was filed before the supreme court based on our red light trap society gives no chance to prostitution. The petitioner plead for establishing separate educational institutions for children of prostitutes but the supreme court did not accept the plea for hostels for children of prostitutes after that  supreme court quoted that fundamental rights of women and children in the constitution of India said that as the prostitutes are poor illiterate and ignorant by rich section of the society and therefore they are exploited,provide that children should be given opportunities and facilities to develop in healthy manner and dignity[3]

                  Case – Vishal Jeet v/s Union of India[4]

  There was a writ petition filed in the supreme court which provides medical aid, shelter, education to the children of prostitutes .In which supreme court issued to the state government to set up rehabilitation home for children who are working on the streets and to have those minor girls who are forcefully compelled in this industry to protective homes.

LAWS GOVERNING PROSTITUTION IN INDIA

IMMORAL TRAFFICKING (PREVENTION)ACT

This act was passed in 1986 is an amendment of the SITA  . According to this law if any prostitute is seen soliciting in the public places will be arrested or others[5] . In the same way call girls can also be arrested and imprisoned for 6 months along with the penalty. If any women are in this industry below the age of 18 years she can be jailed for 7to 10 years, ITPA also provides a special court for cases of trafficking.

If any person is found near the 200 yards of public places then he can be jailed for  3 months and need to pay financial penalties. Pimps who live on the earnings of a prostitute are declared as guilty as well.

INDIAN PENAL CODE  1860[6]

In section 372 and section 373 restricted prostitution with minor worst thing is every year there is an increment of 10%and about two million women are engaging in this industry sometimes they are forced to work in this miserable place. Still, society treats them as garbage they are considered to be against of morals and ethics of Indian culture.

CONCLUSION

Prostitution in India is still because of various reasons but there are few factor which are increasing prostitution like lack of education, poverty, family, personal tragedies.

Legalizing prostitution will not lessen the burden of government, for instance, if we look at the countries who have legalized the prostitution like the Netherlands they had set the bar of age in which it is said women who are prostitutes will be registered at the age of minimum 18years but still facing the problem of child prostitution, conducting regular health check-ups will not help in stopping the sexually transmitted infections and also keeping criminal records of them will help little, according to government legalizing prostitution will help them to make more revenue in regard of this there will be an increase in revenue through taxes, foreign exchange and employment rate will increase but the adverse effect of it will be that sex trade in the country will increase.

The only reason of legalization of the prostitution is for the fulfillment of lust of men’s so that the rate of rape could decrease but instead but this legalization might ruin the lives of innocent womens and children’s therefore instead of legalization of prostitution we can make a laws so  strict that the person might not think of raping a girl for the fulfillment of his lust.

 Government can take in consideration the strict laws of China, UAE,USA,UK etc. The legalization of prostitution had no  good to the countries who tried this aspect, for instance in Netherlands forced prostitution has been increased from 15% to 30%  in this forced prostitution many girls are imported from different countries into the market of sex trafficking because of which the child prostitution has also increased . Even if we legalise prostitution for the decrement of sexual assault in most of the cases it will be a type of silent rape.


[1] By Raja Ram Mohan Roy In 1815-1818

[2] 1998 (4) SCC 270; AIR 1997 SC 3021

[3] According to section 39(f)

[4][1990]2 SCR 861,1990 (2) UJ 385

[5]  Under section 8

[6] Indian penal code by S.N Misra