Article 21 of the Indian constitution is one of the most important Articles in the Indian constitution, which accords sanctity to the human life. Article 21 casts an onerous duty on the state to preserve the life of each person within its realm. It at the same time grants the state the power to deprive a person of his life and liberty in accordance with the procedure established by law. Article 21 has been used by the judiciary umpteen times to broaden the very concept of the term life so as to cover everything which goes to constitute the life of a person. Lately a debate has been raked up in the socio-legal circles regarding the concept of euthanasia and its validity in the Indian constitutional scheme. This paper is an attempt to trace the evolution of the concept of euthanasia and its legality in light of the mandate of Article 21 of the Indian constitution.
Death is never the first choice, and people opt for this path only because there is none other left to take.
Euthanasia is not something new or unknown to mankind. In ancient Greece and Rome, helping others to put an end to their lives was permitted in certain situations. The term euthanasia is derived from the Greek words “eu” and “thanatos” which means “good death” or “easy death”. It is also known as Mercy Killing. Euthanasia literally means putting a person to painless death especially in case of incurable suffering or when life becomes purposeless as a result of mental or physical handicap. The Law commission defined “Euthanasia’ as the act of killing someone painlessly, especially, for relieving suffering of a person from incurable illness.
In the popular mind, “euthanasia” conjures the image of an elderly, terminally ill, lucid patient requesting the assistance of health carers to die now pain free rather than to die later after profound suffering . Over the years, it has turned out to be one of the most controversial issues in law, medicine, ethics, religion and politics. The law commission in its report on “Medical Treatment to Terminally Ill Patients “tried to give an account of the present day scenario with respect to the terminally ill patients in light of the recent medical advances.
It observed that:
“A hundred years ago, when medicine and medical technology had not invented the artificial methods of keeping a terminally ill patient alive by medical treatment, including by means of ventilators and artificial feeding, such patients were meeting their death on account of natural causes. Today, it is accepted, a terminally ill person has a common law right to refuse modern medical procedures and allow nature to take its own course, as was done in good old times. It is well-settled law in all countries that a terminally ill patient who is conscious and is competent, can take an ‘informed decision’ to die a natural death and direct that he or she be not given medical treatment which may merely prolong life. There are currently a large number of such patients who have reached a stage in their illness when according to well-informed body of medical opinion; there are no chances of recovery. But modern medicine and technology may yet enable such patients to prolong life to no purpose and during such prolongation, patients could go through extreme pain and suffering. Several such patients prefer palliative care for reducing pain and suffering and do not want medical treatment, which will merely prolong life or postpone death.
The above account presents a grim picture of the terminally ill people who are living under unbearable pain with no chance of regaining back the quality of life that they used to enjoy in the past. Such patients are in a pitiable condition because they have lost their basic cognitive faculties, which are vital to live a meaningful life. Many people are of the opinion that patients who are terminally ill, and who are having no chance of recovery should be allowed the right to die as prolonging their lives merely adds to their pain and suffering. There are some who believe that individuals should have an unqualified right to die, while there are others who consider all forms of euthanasia to be murder or suicide and, thus, immoral.
Classification of Euthanasia
Euthanasia can be broadly be classified into two categories
(a) Active euthanasia and (b) Passive Euthanasia.
Active euthanasia means a positive merciful act to end useless sufferings and a meaningless existence. It is an act of COMMISSION for example by giving large doses of a drug to hasten death.Passive Euthanasia or negative euthanasiaimplies not using or discontinuing the use of extraordinary life-sustaining measures to prolong life. This includes an act of omission, such as failure to resuscitate a terminally ill or hopelessly incapacitated patient or severely defectively newborn infant. It involves non-use of the measures that would probably delay death and permit natural death to occur. Similarly, euthanasia may be categorized into Voluntary and Involuntary Euthanasia. Voluntary Euthanasia is where the consent is taken from the patient, whereas non-voluntary euthanasia is where the consent is unavailable. Here the individual is unable to ask for euthanasia and another person makes the decision on his/her behalf, usually based on previously expressed wishes.
Many arguments have been advanced by scholars, human rights philosophers and law thinkers advocating legalization of euthanasia all over the world. These are made on the basis of moral, human rights, and utilitarian grounds. The moral ground is that it is against morality to leave someone in severe pain and do nothing for his/her relief. The human rights angle is that leaving a patient in severe pain would amount to directly challenging the fundamental right of the individual i.e., the right to a dignified life. The utilitarian principle believes in the greatest degree of happiness to the maximum number of people. According to this, if anyone is terminally ill, lying in hospital and is in severe pain, then it would not bring his/her family happiness and it will suffer because of his/her pain. Therefore, utilitarian thinkers argue that an act or abstaining from an act which does not give happiness to anyone is wrong. These views have been gaining support in the social circles triggering a debate on the question whether right to life includes within it the right to die especially in the context of Euthanasia or Mercy Killing.
Euthanasia- Trends In Different Countries
The laws with reference to the permissibly of euthanasia vary from country to country. Most countries have been reluctant to accommodate active euthanasia within their legal system whereas some of the countries have taken a lead in legalizing it. The reluctance to accord legal sanctity to euthanasia stems from the fact that many countries consider the practice of euthanasia as morally and ethically abhorrent. The ethical considerations surrounding euthanasia in different states have influenced tremendously in taking a legal position on the subject in the states.
However, countries like Netherland took a radical step in the year 2000 when it legalized euthanasia. The law which was passed by an overwhelming majority of the Dutch lawmakers provides for the addition of a special “criminal liability exclusion” clause to Article 293 and 294 of the Dutch Penal Code that deals with the offence of homicide. By virtue of the exception, doctors are exonerated from the commission of offences under the said Articles if they comply with the due care criteria set out in Article 2 of the Act (Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001).
Under the Dutch law, it is now legal for a doctor to help a patient who seeks his assistance to end his life. Similarly, Belgium became the second country to legalize active euthanasia The Belgian law sets out conditions under which suicide can be practiced without giving doctors a license to kill. According to the Belgian law, patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under “constant and unbearable physical or psychological pain” resulting from an accident or incurable illness. The law gives patients the right to receive ongoing treatment with painkillers — the authorities have to pay to ensure that poor or isolated patients do not ask to die because they do not have money for such treatment.
One of the important safeguards provided by the Law is that every mercy killing case will have to be filed at a special commission to decide if the doctors in charge are following the regulations. The Belgian Law makes departure from the Dutch law when it comes to the issues of a minor patient.
Unlike the Dutch Law, the Belgian law does not permit the minor to seek assistance to die. The Canadian law allows a person to refuse medical treatment and the medical profession accepts the ‘living will’, but the law does not allow the doctor to actively help someone to kill himself. Australia also has a voluntary euthanasia law, which is stately working well. In Australia, a computerized injection system is in use to accomplish euthanasia. In US, active euthanasia is illegal barring certain States where it is permitted. In U.K, active euthanasia is also prohibited by law.
However, with respect to passive euthanasia, the general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.
In Indian Constitution Article 21 is the repository of the Right to Life. It lays down that “no person shall be deprived of his life and personal liberty except by procedure established by law”. However, the true import of this constitutional provision goes beyond these words. Article 21 has received a generous treatment at the hands of the Indian judiciary.
The Indian judiciary woke up to the all-encompassing import of right to life quite late. The change in judicial attitude was perhaps motivated by the salutary principle that a constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner. The courts have repeatedly held that while arriving at the proper meaning and content of the right to life, the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. It is a result of this judicial approach that bundles of rights have been carved out of Article 21 of the constitution. A grand step was taken by the court in expanding the scope of Article 21 when it argued that life in Article 21 does not mean merely animal existence but living with human dignity. This judicial attitude has mainly been influenced by the oft-quoted observation of the U.S Supreme Court in Munn v Illinoisin which it was observed that
“By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an arm or leg…”
The Indian Supreme court has thus given very extensive parameters to Article 21 . It has become a source of many substantive rights and procedural safeguards to the people.
This judicial approach is epitomized by the observation of Bhagwati.J in Francis Coralie’s case wherein, it was observed by the learned judge, that
“We think that the right to life includes the right to live with human dignity and all that does with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings”.
Article 21 now includes within its ambit the right to travel abroad, right to clean environment, right to livelihood, right to speedy trial, right to health, etc. Now that it is well established that right to life does not mean mere animal existence, but it includes a dignified or qualitative life. Therefore, it is argued that every person has a life to live with at least a minimum dignity and when the state of existence falls below even that minimum level, the person must be allowed to end such torturous existence. The question whether the Right to Die exists in the Indian Constitution has been a source of great legal debate. In India Article 21 of the Indian Constitution has been the central point of discussion in this debate over euthanasia. The moot question for consideration has been whether right to life under Article 21 also includes right to die? According to M.P.Jain, if Article 21 confers on a person the right to live a dignified life, does it also confer a right not to live if the person chooses to end his life? If so then what is the fate of the provisions in the penal code making attempt to commit suicide illegal.
This question has been posed before the Courts on several occasions during the past decade especially with reference to the constitutional validity of Section 309 that makes attempt to commit suicide punishable. One of the earlier instances of a court taking cognizance of such cases related to the judgment of the Delhi High Court inState v Sanjay Kumar Bhatial. This perhaps was one of the first instances where the courts in India made any reference to euthanasia.
The Division bench of the Delhi High Court while speaking through Sachar.J observed that:
“It is ironic that Section 309 IPC still continues to be on our Penal Code. … Strange paradox that in the age of votaries of Euthanasia, suicide should be criminally punishable. Instead of the society hanging its head in shame that there should be such social strains that a young man (the hope of tomorrow) should be driven to suicide compounds its inadequacy by treating the boy as a criminal. Instead of sending the young boy to psychiatric clinic it gleefully sends him to mingle with criminals…. The continuance of Section 309 IPC is an anachronism unworthy of a human society like ours.
In many such cases, it was argued that right to life includes within it the right to die and therefore when a person attempts to commit suicide he is merely exercising his fundamental right to die. It was therefore contended that as Section 309 imposes fetters on this fundamental right it might be declared as unconstitutional. Another instance where such an argument was successfully put forward was theMaruti Dubal’s case. In this case, the Bombay High Court held that Section 309 is unconstitutional as it violates Article 21. It was held by the court that Article 21 includes within its ambit the right to die or to terminate one’s own life. The Honorable Supreme Court approved this interpretation given to right to life in its decision inP.Rathinam’s case.
The judgment of the Supreme Court in Rathinam’s case came to be criticized by many as being a radical view on the right to life. The court ruling in Rathinam’s came to be reviewed by the full bench of the Honorable Supreme CourtinGian Kaur v State of Punjab. The main issue before the court was that if attempt to commit suicide is not regarded as penal then what happens to someone who abets suicide which is a punishable act under Section 309 of the Indian Penal Code. It was argued before the court that if the principal offence of attempting to commit suicide is void as being unconstitutional then how could its abetment be punishable. The court while overruling its judgment in Rathinam’s case held that the significant aspect of ‘sanctity of life’ is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life’ be read to be included in protection of life’. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the right to die’ as a part of the fundamental right guaranteed therein. ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life’ . However, the court in Gain Kaur distinguished between euthanasia and attempt to commit suicide. It was observed the honorable supreme court that
“Euthanasia is termination of life of a person who is terminally ill or in a persistent vegetative state. In such a case death due to termination of a natural life is certain and imminent. The process of natural death has commenced; it is only reducing the period of suffering during the process of natural death. This not the case of extinguishing life but only of accelerating conclusion of the process of natural death which has already begun. This may fall within the concept of right to live with human dignity up to the end of natural life. This may include the right of a dying man to die with dignity when his life is ebbing out. But this cannot be equated with the right to die an unnatural death curtailing the natural span of life.
Even though the court in Gian Kaur’s case referred to euthanasia, it stayed clear of making any explicit pronouncement on its legality within the Indian Constitutional scheme. Recently the Supreme Court was called upon to adjudicate on the question with regard to the permissibility of euthanasia within the Indian constitutional scheme. The court had to decide whether the right to life guaranteed by Article 21 included within it the right to extinguish one’s life in case of terminally ill patients having no hope of any recovery. This issue came up before the Honorable Supreme Court in Aruna Ramachander Shanbaug v Union of India.
Aruna Shanbaug On the night of 27 November 1973, Shanbaug was sexually assaulted by Sohanlal Bhartha Walmiki, a sweeper on contract at the King Edward Memorial Hospital. Sohanlal attacked her while she was changing clothes in the hospital basement. He choked her with a dog chain and sodomized her. The asphyxiation cut off oxygen to her brain, resulting in brain stem contusion injury, cervical cord injury, and cortical blindness. She was discovered with blood splattered around her at 7:45 am the next morning by a cleaner.
The police case was registered as a case of robbery and attempted murder because of the concealment of anal rape by the doctors under the instructions of the Dean of KEM, Dr. Deshpande.
A few days before her death, Shanbaug was diagnosed with pneumonia. She was moved to the medical intensive care unit (MICU) of the hospital and put on a ventilator. She died the morning of 18 May 2015.Her funeral was performed by the hospital nurses and other staff members.
Shanbaug remained in a vegetative state from 1973 until her death in 2015.
17 December 2010, the Supreme Court, while admitting the plea to end the life made by activist-journalist Pinki Virani, sought a report on Shanbaug’s medical condition from the hospital in Mumbai and the government of Maharashtra.
On 24 January 2011, the Supreme Court of India responded to the plea for euthanasia filed by Aruna’s friend, journalist Pinki Virani, by setting up a medical panel to examine her. A three-member medical panel was established under the Supreme Court’s directive. After examining Shanbaug, the panel concluded that she met “most of the criteria of being in a permanent vegetative state”.
On 7 March 2011, the Supreme Court, in a landmark judgment, issued a set of broad guidelines legalizing passive euthanasia in India. These guidelines for passive euthanasia— i.e. the decision to withdraw treatment, nutrition, or water—establish that the decision to discontinue life support must be taken by parents, spouse, or other close relatives, or in the absence of them, by a “next friend”. This decision requires approval from the concerned High Court.
In its judgment, the court declined to recognize Virani as the “next friend” of Aruna Shanbaug, and instead treated the KEM hospital staff as the “next friend.”
Since the KEM Hospital staff wished that Aruna Shanbaug be allowed to live, Virani’s petition to withdraw life support was declined. However, the court further stipulated that the KEM hospital staff, with the approval of the Bombay High Court, had the option of withdrawing life support if they changed their mind:
On 25 February 2014, while hearing a PIL filed by NGO Common Cause, a three-judge bench of the Supreme Court of India said that the prior opinion in the Aruna Shanubaug case was based on a wrong interpretation of the Constitution Bench’s opinion in
Gian Kaur v. State of Punjab.
The court also determined that the opinion was internally inconsistent because although it held that euthanasia can be allowed only by an act of the legislature, it then proceeded to judicially establish euthanasia guidelines. The court referred the issue to a larger Constitution Bench for resolution, writing: Response
Following the Supreme Court decision rejecting the plea, the nursing staff at the hospital—who had opposed the petition and had been looking after Shanbaug since she had lapsed into a vegetative state—distributed sweets and cut a cake to celebrate what they termed her “rebirth”. A senior nurse at the hospital later said, “We have to tend to her just like a small child at home. She only keeps aging like any of us, does not create any problems for us.
We take turns looking after her and we love to care for her. How can anybody think of taking her life?”
Pinki Virani’s lawyer, Shubhangi Tulli, decided not to file an appeal, saying “the two-judge ruling was final till the SC decided to constitute a larger bench to re-examine the issue.” Pinki Virani said, “Because of this woman who has never received justice, no other person in a similar position will have to suffer for more than three and a half decades.”
The case related to Aruna Shanbaug, a terminally ill patient who has been living in a persistent vegetative state for the past 37 years. The plea for euthanasia was filed on behalf of Aruna by one Pinky Virani who claimed to be her next friend. Her plea was opposed by the KEM hospital which has been taking care of her for the past 37 years. It was argued before the court that Aruna The Honorable Supreme Court in its judgment while permitting passive euthanasia unequivocally declared Active Euthanasia using lethal substances or forces to kill the terminally ill patient as illegal and a crime under Section 302, 304 of the Indian Penal Code. The bench in its judgment distinguished active and passive euthanasia from a purely legalistic point of view. The court observed that the difference between active and passive euthanasia is that in active euthanasia something is done to end the patient’s life while in passive euthanasia something is not done that would have preserved the patient’s life.
The court elaborated this proposition by observing that
“At the heart of this distinction lies a theoretical question. Why is it that the doctor who gives his patient a lethal injection, which kills him, commits an unlawful act and indeed is guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully – and will not do so, if he commits no breach of duty to his patient? Professor Glanville Williams has suggested (see his Textbook of Criminal Law, 2nd ed., p. 282) that the reason is that what the doctor does when he switches off a life support machine ‘is in substance not an act but an omission to struggle, and that ‘the omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case’.
The court in its judgment dwelt in length on the ruling of the House of Lords in Airedale case. It substantially agreed with the view expressed by the learned judges in the Airedale ‘case with regard to the best interest doctrine. The court also tried to incorporate the safeguards given by the House Lords in case of passive euthanasia. The court following the Airedale’s case vested the High Courts in India with the power to take a final call on appeals for euthanasia made by the relatives or next friend of the ailing person.
On 7 March 2018, the Supreme Court of India legalized passive euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state. The decision was made as part of the verdict in a case involving Aruna Shanbaug, who had been in a Persistent Vegetative State (PVS) until her death in 2015.
In March 2018, the Supreme Court of India passed a historic judgment-law permitting Passive Euthanasia in the country. This judgment was passed in wake of Pinki Virani’s plea to the highest court in December 2009 under the Constitutional provision of “Next Friend”. It’s a landmark law which places the power of choice in the hands of the individual, over government, medical or religious control which sees all suffering as “destiny”.
The Supreme Court specified two irreversible conditions to permit Passive Euthanasia Law in its 2011 Law: (I) The brain-dead for whom the ventilator can be switched off
(II) Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives be added, according to laid-down international specifications.
The same judgment-law also asked for the scrapping of 309, the code which penalizes those who survive suicide attempts. In December 2014, the government of India declared its intention to do so.
However, on 25 February 2014, a three-judge bench of Supreme Court of India had termed the judgment in the Aruna Shanbaug case to be ‘inconsistent in itself’ and has referred the issue of euthanasia to its five-judge Constitution bench.
And on December 23, 2014, Government of India endorsed and re-validated the Passive Euthanasia judgement-law in a Press Release, after stating in the Rajya Sabha as follows: that The Hon’ble Supreme Court of India in its judgment dated 7.3.2011 [WP (Criminal) No. 115 of 2009], while dismissing the plea for mercy killing in a particular case, laid down comprehensive guidelines to process cases relating to passive euthanasia.
Thereafter, the matter of mercy killing was examined in consultation with the Ministry of Law and Justice and it has been decided that since the Hon’ble Supreme Court has already laid down the guidelines, these should be followed and treated as law in such cases. At present, there is no proposal to enact legislation on this subject and the judgment of the Hon’ble Supreme Court is binding on all. The Health Minister, J P Nadda stated this in a written reply in the Rajya Sabha.
The high court rejected active euthanasia by means of lethal injection. In the absence of a law regulating euthanasia in India, the court stated that its decision becomes the law of the land until the Indian parliament enacts a suitable law. Active euthanasia, including the administration of lethal compounds for the purpose of ending life, is still illegal in India, and in most countries.
In 2018 the Supreme Court of India declared through a five-judge Constitution bench that, if strict guidelines are followed, the government would honor “living wills “allowing consenting patients to be passively euthanized if the patient suffers from a terminal illness or is in a vegetative state.
Guidelines The following guidelines were issued by the Honorable Supreme Court
(1)When such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably, one of the three doctors should be a neurologist; one should be a psychiatrist, and the third a physician. For this purpose, a panel of doctors in every city may be prepared by the High Court in consultation with the State Government/Union Territory and their fees for this purpose may be fixed.
(2) The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient, as well as taking the views of the hospital staff and submit its report to the High Court Bench.
(3) Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.
(4) The High Court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient. The High Court should give its decision assigning specific reasons in accordance with the principle of ‘best interest of the patient’ laid down by the House of Lords in Airedale’s case (supra). The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature.
The judgment in Shanbaug’s case was met with a mixed response while on the one hand many welcomed it on the basic premise that there are limits to human suffering, especially when there is no light at the end of the tunnel. It is argued that a terminally ill patient cannot be kept on life support with the hope that, in the near future, there may be developments in medicine, which may save him or her. This approach is justified on the ground that quality of life is as important as life itself. However, on the other side of the aisle there are people who argue that if euthanasia is legalized, it could be misused. Nevertheless, many contests this contention. It is argued this fear of misuse holds true with reference to any other existing laws also, so why to single out this law only.
They thus suggest that stringent safeguards avoid any kind of misuse whereas others suggest that euthanasia should be allowed only when no amount of palliative care can help the patient recover. In spite of these convincing arguments, genuine concerns have been raised because of the growing evidence that access to healthcare is shrinking; a circumstance that will only mean a large number of those who ought to be in hospital under supervised care will be in homes with few resources for end-of-life care and, clearly, outside the reach of the medical system. These fears are not unfounded especially with reference to the Western countries where the cost of medical care is severely expensive. However, the Belgian law on Euthanasia incorporates a provision that makes it obligatory on the state to provide terminally ill patients with painkillers so that the patients do not end their lives because of financial constraints in procuring medicine. With reference to poor and developing countries, such fears cannot be allayed easily. In India it is it is argued that if denying end-of-life treatment and care were to be considered passive euthanasia, then as a country we have certainly been practicing it for long. It is a result of this state of affairs that people are prompted to remark that without expanding access to healthcare and providing end-of-life and palliative funded care, legislating to allow euthanasia is something of a mockery.
An apprehension has been raised that Passive euthanasia will cover infants and unborn babies by citing the example of the Netherlands, where all these acts were legalized. It is contended that because of legalization of Euthanasia, Netherlands has lost more than one-fourth of its population and it has badly affected unborn babies with a high fall in birthrate in that country. For some there is an important lesson to every country that is considering following this proponent country and legalizing euthanasia. They argue that Euthanasia is impracticable in India given its susceptibility, which makes it prone to misuse.
It is submitted that though the fears expressed with regard to the misuse of euthanasia are genuine such fears largely relate to active euthanasia. In India unlike Netherlands and Belgium, active euthanasia continues to be illegal and looking at the court pronouncements of the past decade it would remain to be so. Therefore the question of its misuse in India does not arise with respect to the fears about the misuse of passive euthanasia, such fears stand largely addressed following the directions issued by the Honorable Supreme Court in Shanbaug’s case. These directions are a sufficient safeguard to act as a check against any misuse. However, it would be prudent for the government of India to come up with a comprehensive legislation on permitting passive euthanasia.
It has been argued that permitting euthanasia could diminish respect for life. Concerns have been raised that allowing euthanasia for terminally ill individuals who request it, could result in a situation where all terminally ill individuals would feel pressurized into availing of euthanasia. There are fears that such individuals might begin to view themselves as a burden on their family, friends and society or as a strain on limited healthcare resources. Opponents of euthanasia also contend that permitting individuals to end their lives may lead to a situation where certain groups within society e.g. the terminally ill, severely disabled individuals or the elderly would be euthanized as a rule . However, proponents of euthanasia argue that legalizing the practice would not devalue life or result in pressure being put on individuals to end their lives but would allow those with no hope of recovery to die with dignity and without unnecessary suffering. They state that it would be imprudent not to implement legislation because this would drive euthanasia underground where it would be unregulated. They also raise concerns that the current legal vacuum has led to people travelling abroad (while they are still physically able to) to avail of euthanasia/assisted suicide before they feel they are ready to die.
Violence against women constitutes the single most prevalent and universal violation of Human Rights. Around the world at least one woman in every three has been beaten, coerced in to sex or otherwise abused in her lifetime .The effects of violence can be devastating to a woman’s reproductive health as well as to other aspects of her physical and mental well-being. The United Nations, in keeping with the spirit of the U N Declaration of Human Rights works in many ways to eliminate this morally unacceptable scourge. One such effort in 1998-99 focusing attention on the issue of Gender Violence is the U N International Agency Campaign on Women’s Human Rights in Latin America and Caribbean to combat violence against women. The Campaign for Women’s Rights aims at altering society to the universal prevalence and the unacceptable high social and economic costs of Gender Violence. In Central America violence against women is rampant. It is estimated that one out of every two women suffers physical abuse at sometimes during her life. According to Dory Magnussen who is involved in a Pan American Health Organization Project to combat family violence, “ Women are taught that they are property of men, and men are taught that women and children are their property. This is very sexist culture. The only place most men can exert any kind of power is over their family”. Deprivation, discrimination and different forms of atrocities are all linked to one another and are manifestations of the gender ideology.
Violence against women includes physical, sexual, Psychological and economic abuse. It is often known as gender-based violence because it evolves in part from woman’s subordinate status in society. Many cultures have beliefs and norms and even social institutions that legitimize violence against women. The pathetic side of it is that it still happens in this era of universal human rights. Is it not true that the word ‘Human’ includes women too? The most sarcastic and humorous element is that this gender violence is an ongoing process in the so-called highly sophisticated class in the land of culture- United States. It would be amusing to learn that almost one half of the women in this country is still victims of wife beating and battering. Still a woman is beaten by her partner in the United States every fifteen seconds.
Can we believe that women’s human right is an abstract concept? Absolutely not. Every time a woman stands up for her rights, she is standing on the shoulders of women around the world who during the last decade have made women’s human rights the focus of world attention. No one has anticipated that the 1993 World Conference on Human Rights would bring women’s human rights to center stage in world human rights discussions. Although the nations of the world may have agreed to raise the issue of women’s human rights at the world conferences, there is still a long road ahead before the commitments are fully realized. But in this dawn of the new millennium women raised the level of awareness about the unending violence against them.
More US women are in the workforce than ever before, but many of the jobs open to women are those at the lowest pay. Women workers in various parts of the country are pioneering a new style of organizing that emphasizes the interconnections between women’s responsibilities in the work place, the family and the community. The increasing globalization of the world economy has put women’s social economic and cultural rights in great jeopardy. Seventy percent of the world’s poor are women.
Violation against women can be viewed as a global health care problem rather than just a law enforcing matter. Besides immediate physical injuries, abuse also has been linked to problem pregnancies, substance abuse, gastrointestinal disorder and chronic pain syndromes, perhaps due to anxiety. Heise, the co-director of the Center for Health and Gender Equity said, “Women who have a history of abuse are at much higher risk of having these chronic conditions than other women.” An Indian study found that women who have been beaten were more likely than other women to have miscarriages, stillbirths or infant deaths. Health care providers can do much to help the victims of gender-based violence. They can provide medical treatment, offer counselling and refer their clients to legal assistance. No doubt, abuse has a major impact on women’s reproductive health and sexual well-being. Providers cannot do their jobs well unless they understand how violence and powerlessness affect women’s reproductive health. They can reassure women that violence is unacceptable and that no women deserves to be beaten, sexually abused, or made to suffer emotionally.
Due to patriarchal family and social structures, girls in many areas of the world are considered a burden, and women do not have the same access to power and status as men do. The negative consequences of sexism and gender discrimination play out at every stage of a girl s life and may jeopardize her safety and life. In India, for example, the abortion of female fetuses is very common, and female infanticide is reportedly still practiced in China. During infancy, a girl may be breast-fed for a shorter period of time and get less food and nurturing than her male counterpart. She is also less likely to be given medical attention and treatment for illnesses. Every year, 500,000 women and girls worldwide die during pregnancy or childbirth; a quarter of these are teenagers. Other forms of gender-based persecution include rape and sexual abuse, widow and bride burning, and female genital mutilation. A woman who deviates from social norms may be disowned by her family, harassed by her community, or abused by members of the government . Rape of children and women is a common warfare tactic used to torture, humiliate, and control the victims, as well as psychologically hurt their families who are often forced to witness the crime. The more pathetic side of it is that even in this era of universal human rights the US women still undergo such deplorable and devastating humiliation.
Another important aspect is the violation of human rights of the refugee women, especially in the United States. Although women are not powerless victims, and the strength and courage of immigrant and refugee women is as great as the obstacles they must overcome, it is important to be aware of the gender-specific challenges they face. The women and children constitute 80 percent of the world s refugees, although their specific concerns have traditionally been neglected in refugee work and immigration policy. Only in the past 15 years has there been growing international recognition and awareness of gender-specific questions relevant to the determination of refugee status, immigration training and policy. For example, how does gender discrimination influence and interfere with a girl s physical and mental development? How do wars, poverty, and natural disasters render women even more vulnerable to abuse? What are the risks for refugee women in particular? Are women free from risk once they reach their country of asylum? .
Women and children may lack the mobility and resources that would enable them to seek asylum in Western countries. Gender-based persecution is not one of the universally accepted grounds for refugee or asylum status, and the extent to which gender issues are taken into account in determining asylum claims depends upon the specific policies of individual countries. In some countries such as Canada and certain European countries, for example, asylum can be granted to women solely on grounds of gender-based persecution, while in the United States, many immigration judges and attorneys have traditionally treated violence against women as private and not public persecution.
In terms of international law, the United Nations High Commissioner for Refugees, which oversees the protection of refugees, has adopted measures such as the 1990 Policy for Refugee Women, the 1991 Guidelines on the Protection of Refugee Women, and the 1995 Sexual Violence Against Refugees: Guidelines on Prevention in recognition of the specific needs and concerns of women. There is still, however, a great need for increased understanding of the ways in which gender compounds the effects of poverty and oppression. Once they have fled their country of origin, women are not necessarily free from victimization. In fact, the particular circumstances of refugee women place them at high risk for sexual violence, including sexual threats, assault, exploitation, and molestation. Both during their flight and in their country of asylum, refugee women may be assaulted by guards or other officials meant to protect them.
According to the United Nations High Commissioner for refugees, female heads of household, unaccompanied women and children, children in foster care situations, and women being held in detention are most likely to be subjected to sexual violence. Women’s vulnerability is heightened by the fact that they are in unfamiliar territory and are often dependent on unknown men in refugee camp. In some extreme cases, women have returned to the country from which they were fleeing due to the abuse they suffered as refugees. Though the refugee men are also victims of violation of human rights in many respects, comparatively the women are becoming bitter victims. Not all women who come to the United States are fleeing persecution or are candidates for asylum, but all are seeking a better life. There has been increasing attention over the past decade to domestic violence within immigrant communities in the United States. As the legal means by which immigrants can gain legal permanent residency become fewer and more restricted, the vulnerability of women to abuse by a spouse or employer increases. The 1994 Violence Against Women Act (VAWA) contained provisions to protect battered immigrant women and their children. Although this Act was a first step towards protecting battered non-citizens and their children, its scope is somewhat limited. The Violence Against Women Prevention Act was recently introduced in Congress to expand upon and improve VAWA s provisions.
Now let us come to the legal approach towards this gender violence, which is the most unacceptable form of human right violation. The US Supreme Court has agreed with lower courts that violence against women is not a matter of federal concern. Chief Justice William Rehnquist held that Congress exceeded its authority to write laws when it enacted the Violence Against Women Act, which provided for a federal civil cause of action for victims of gender-based violence. A federal district court and the Fourth Circuit Court of Appeals had previously made the same rulings, but the Supreme Court always accepts review when a federal statute has been declared unconstitutional.
Although the legal system is described as one system, a central problem encountered by women experiencing domestic violence is that there are essentially two legal systems. One is the criminal justice system, which is regulated by federal law and administered by the province. In this system the state or government takes action against individuals for crimes against society. The injured person, or “victim”, is a witness for the government’s case. The other system is the civil law or private law system, which regulates legal issues between individuals. Family law, which regulates custody, maintenance, matrimonial property, marriage and divorce are part of this system. It should be noted that even within this system there is further division in that the federal government regulates some family law matters and the province regulates some. For example, the federal government regulates divorce but the province regulates property. This means that although her spouse may be trying to injure or murder her, a woman may still share property with him or be dependent on him for maintenance of any children they may have.
In discussing the court system it is important to understand that women deal with two different court systems. The criminal court system and the civil or family court system. This fact, which largely arises from historical and constitutional reasons, is probably one of the most significant problems for women in Nova Scotia and Canada who are experiencing domestic violence. This is made worse for women in Nova Scotia by the fact that the family law court system is itself made up of two levels of courts dealing with different but sometimes overlapping family matters. The lack of complete family law jurisdiction in any one court can provide many problems for women. In many provinces the family law system has been “unified” so that there is a unified family court, which can deal comprehensively with most non-criminal family law matters. Several assaulted women and shelter workers said that it is easier for women to go through Family Court than Provincial criminal court. The Family Court is perceived to be more supportive of their situation for peace bonds and for assault charges. The physical facilities in the courthouse are also relevant. For example, having to wait in the same waiting room as her abusive spouse before a case is intimidating and dangerous for a woman. It was repeatedly expressed by women that delays caused by an overloaded court system are a major problem.
The comments regarding the judging of domestic violence cases made in the course of the consultation process fell into two main categories: the attitudes of judges towards domestic violence and sentencing patterns for domestic violence offenses. It was stated that while increasingly there are judges who treat domestic violence cases seriously and appropriately, there is a feeling that some judges have very little understanding of domestic violence. A number of women who went through the criminal court process described the judge as uncaring. Comments made with regard to sentencing for domestic violence offences suggests that there is a feeling amongst assaulted women and shelter workers that some judges may be beginning to treat domestic violence more seriously. However, there was still a sense that sentencing is very inconsistent and that, on a whole, the sentences are too lenient.
The greatest problem for women lies in the failure of the government to comprehend and respond to domestic violence as a serious problem. That will require fundamental changes to institutional structures and resources to eradicate it. One of the more important problems is to change the legal system so that violence in a family can be dealt with by the law as a crime. International, national and federal and provincial studies have established that domestic violence exists, that it is, in most cases, a gendered crime and that the justice system has not proved to be effective in responding to the problem. Instead, it will further endanger the lives of women in this situation.
Section 269ST was introduced by finance act, 2017 in Income tax act, 1961 by the central government in order to curb the tax evasion, regulation and circulation of Black money. Most of the transactions in India are done in cash ( specially real estate transactions )as a tactic to evade the income tax, as cash transactions are difficult to track by the department. Therefore there is a great need and requirement to invoke such provisions with the intention of restricting cash transactions. There are already provisions in the act to restrict cash transaction. For instance, the provisions of section 40A(3) imposing restrictions on cash expenditure. Similarly, there are provisions under sections like 269SS/269T regarding accepting and repayment of loans in cash.
But, there is no provision in income tax regarding cash receipts before inserting section 269ST ( i.e. before 1st april, 2017 ) and this what it makes a difference between the existing provisions and 269ST. It cast a restriction on the person receiving the cash i.e. payee.
Understanding the provision of section 269ST”
No person shall receive an amount of two lakh rupees or more-
(a) in aggregate from a person in a day; or
(b) in respect of a single transaction; or
(c) in respect of transactions relating to one event or occasion from a person,
otherwise than by an account payee cheque or an account payee bank draft or use of electronic clearing system through a bank account.
Provided that the provisions of this section shall not apply to-
(i) any receipt by-
(b) any banking company, post office savings bank or co-operative bank;
(ii) transactions of the nature referred to in section 269SS;
(iii) such other persons or class of persons or receipts, which the Central Government may, by notification in the Official Gazette, specify.
Explanation.- For the purposes of this section,-
(a) “banking company” shall have the same meaning as assigned to it in clause (i) of the Explanation to section 269SS;
(b) “co-operative bank” shall have the same meaning as assigned to it in clause (ii) of the Explanation to section 269SS
1). Applicability: This section is applicable to all persons as defined in section 2(31). It covers all types of receipts whether it is a capital or revenue.
Penalty for non-compliance of section 269ST ( Section 271DA)
If a person receives any sum in contravention of the provisions of section 269ST, he shall be liable to pay, by way of penalty, a sum equal to the amount of such receipt
Any penalty imposed under sub-section (1) shall be imposed by the Joint Commissioner.
Examples of transaction covered under section 269ST
1. Laxminarayan & Associates ( a partnership firm ) has entered into a transaction of purchase of immovable property from Pushp kumar sahu at a consideration of 25,00,000/- INR. The mode of payment is partly cash and partly by NEFT, cash portion is 5,00,000 and remaining is NEFT. In this case Pushp Kumar Sahu has received cash in excess of 2,00,000/-INR. In which he has violated the provisions of section 269ST. Therefore penalty will be leviable u/s 271DA for receiving cash @ rate of 100%. In layman, penalty will be levied on transaction portion received in cash.
2. Laxminarayan & Associates ( a partnership firm) has withdrawn a amount of 3,00,000/-INR from a bank account in a single day. In this case receiving person is laxminarayan & associates which has received a amount exceeding 2,00,000/-but still it is not violating the provisions of section 269ST. Therefore, penalty will not be levied u/s 271DA; because there is a clarification regarding the same by Central Board of Direct taxes that there will be no restriction on cash withdrawal from bank.
Clarifications in respect of section 269ST of the Income-tax Act, 1961 Vide Circular No. 22 of 2017 Dated 03rd July, 2017.
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Direct Taxes) (TPL Division) ***
With a view to promote digital economy and create a disincentive against cash economy, a new section 269ST has been inserted in the Income-tax Act, 1961(the Act) vide Finance Act, 2017. The said section inter-alia prohibits receipt of an amount of two lakh rupees or more by a person, in the circumstances specified therein, through modes other than by way of an account payee cheque or an account payee bank draft or use of electronic clearing system through a bank account. Penal provisions have also been introduced by way of a new section 271DA, which provides that if a person receives any amount in contravention to the provisions of section 269ST, it shall be liable to pay penalty of a sum equal to the amount of such receipt.
2. Subsequently, representations have been received from non-banking financial companies (NBFCs) and housing finance companies (HFCs) as to whether the provisions of section 269ST of the Act shall apply to one installment of loan repayment or the whole amount of such repayment.
3. In this context, it is clarified that in respect of receipt in the nature of repayment of loan by NBFCs or HFCs, the receipt of one installment of loan repayment in respect of a loan shall constitute a ‘single transaction’ as specified in clause (b) of section 269ST of the Act and all the installments paid for a loan shall not be aggregated for the purposes of determining applicability of the provisions section 269ST.
In common parlance a cheque is a financial instrument which is written by its owner, to order his bank to pay a certain sum to another person from his account. The oxford dictionary defines the term cheque as a written order to a bank to pay a stated sum from an account to a specified person. In legal arena, according to the Black’s law dictionary cheque is a draft signed by the maker or drawer, drawn on a bank, payable on demand, and unlimited in negotiability.
As far as India is concerned, the law which governs the cheque transactions is the Negotiable Instrument Act, 1881. In the eyes of Indian law, A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise on demand and it includes the electronic image of a truncated cheque and cheque in the electronic form. Notwithstanding the advent of electronic transfers, the cheque transaction hasn’t lose its popularity. It has become not only common but also as sine qua non in most of the commercial transactions.
The apex court in Goa Plast (Pvt) Ltd. vs. Chico Ursula D’Souza, wherein it held :-
Chapter XVII containing sec 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. 
Saviour of the victims Sec 138 is considered as a saviour because in the absence of sec 138 the victims of dishonoured cheque cases will only have the option to file a suit for recovery of money under the Civil Procedure Code, 1908 and the victims will be subject to payment of stamp duty and sluggish civil procedures but this section imposes punishment in the nature of both imprisonment and fine. The maximum term of punishment that can be awarded under this section is two years of imprisonment, or with a fine which may extend to twice the amount of the cheque, or with both. Hence, the intention of lawmakers by bringing this section is to reduce the number of frauds committed in the cheque transactions, to make the fraudsters punished and to seek speedy justice.
Sec 138 reads as follows: Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.]
Presumption in Cheque case The concept of presumption can be first traced in The Indian Evidence Act. Sec 4
of the Act deals with three categories of presumption they are as follows:
1. May presume
2. Shall presume
3. Conclusive proof
The first two categories of presumption are rebuttable, in contrary the last one is irrebuttable. In May presume the courts have wide scope either to presume a fact or not. So presuming a fact is totally based on the courts’ discretion. In case of Shall presume the courts are obliged to presume a fact unless and until the same fact is refuted. When it comes to conclusive proof there is no chance of rebutting a fact, the courts shall not allow to adduce evidence to disprove it when one fact is declared to be a conclusive proof of another by the other fact.
The presumption under sec 118 of the negotiable instrument Act relates to the consideration, date, time of acceptance, time of transfer, order of indorsements, stamps and holder in due course. The presumption under this section is inclusive as it includes all kinds of negotiable instruments. But sec 139 of the negotiable instrument Act is exclusive for cheque cases. It deals with presumption in favour of holder of cheques.
Sec 139 of the negotiable instrument Act reads as under Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
From the above mentioned provision of law, the courts under this section should presume that the cheque as defined in sec 138 has been received by the holder for discharging either in whole or in part any debt or liability. As far as interpretation of the words any debt or liability is concerned the courts are guided by the explanatory provision provided in sec.138 of the negotiable instrument Act.
The explanation part of sec 138 of the negotiable instrument Act as follows
Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.
Therefore, the complainant cannot succeed unless either the debt or other liability is lawful i.e. the transactions should not violate the provisions of any law or the law which is time being in force. The Hon’ble Supreme court held that the complaint under section 138 must contain the following ingredients, viz.,
(i) That there is a legally enforceable debt;
(ii) That the cheques was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt;
(iii) Cheque so issued had been returned due to insufficiency of funds.
When it comes to rebutting the presumption as contemplated in sec 139, it depends on the facts and circumstances of each case. In the light of sec 139, the action for rebutting the presumption would lie only in the hands of the accused. Hence, in all cheque cases the onus initially lies on the accused, unlike in all criminal cases. In layman’s point of view cheque bounce cases are considered as criminal case. But according to lawman’s view the very nature of cheque bounce offence is a civil wrong coupled with criminal provisions. In order to uphold the credibility and efficacy of cheque transaction and to ensure speedy disposal of cases the lawmakers have incorporated the penal provisions. As a result, the cheque dishonour cases are driven by the doctrine called the principle of Preponderance of probabilities which is followed in all civil cases and not by the doctrine of beyond reasonable doubt which is followed in all criminal trials.
In Kishan Rao Vs Shankargouda, the ratio laid by the apex court was a mere denial can’t rebut the presumption envisaged in sec 139. The excerpt of Anss Rajashekar Vs Augustus Jeba Ananth reads as follows; (..)In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance o f probabilities’. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
The Hon’ble supreme court in Bir Singh vs Mukesk Kumar held that:-
Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
Setting the law in Motion
The cheque cases are the concoction of both negotiable instrument Act and criminal procedure code. As per sec 138 the cheque has to be within the period of its validity, based on the RBI notification the period of validity has been reduced from six months to three months. The law is set in motion by issue of demand notice within thirty days of the receipt of information by the payee or holder in due course of the cheque as the case may be regarding the return of cheque as unpaid. If the drawer fails to remit the said amount within fifteen days of the receipt of the said notice, sec 142 comes into play. According to sec 142 the court of Metropolitan magistrate or a judicial magistrate shall take cognizance of the offence enunciated in sec 138 only after filling of complaint made in writing by the payee or holder in due course of the cheque. Provided that, no court inferior to that of a Metropolitan magistrate or a judicial magistrate has the authority to take cognizance of the offence. The court may also condone the delay for filing the complaint. Indeed, the intention of the framers of clause (b) of sec 142 is to give opportunity the complainant is case of any untoward situations.
In Sadanandan Bhadran vs Madhavan Sunil Kumar, the apex court held that Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under clause @ of the proviso to Sec 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under section 142 is to be reckoned accordingly.
Place of Suing
In K. Bhaskaran v. Sankaran Vaidhyan Balan wherein it was held that the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque,
(2) Presentation of the cheque to the bank,
(3) Returning the cheque unpaid by the drawee bank,
(4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount,
(5) failure of the drawer to make payment within 15 days of the receipt of the notice, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act.
It was in Dashrath Rupsingh Rathod vs. State of Maharashtra, a three Judge Bench of the Supreme Court overruled the ratio decidendi and held that the place of suing is determined by the place where the offence was committed as per sec 177 of Criminal procedure code. Thus, the Complainant is statutorily bound to comply with Section 177 etc. of the Cr.P.C. and therefore the place of suits where the Section 138 Complaint is to be filed is not of his choosing.
The above mentioned judgement prevailed till the birth of The Negotiable Instruments (Amendment) Act, 2015. After the insertion of sub sec (2) of sec 142 in the Negotiable Instrument Act the issue of place of suing has been settled.
As per the sub sec (2) of sec 142:
The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Proceedings in Dishonoured Cheque case Initial Proceedings Sec 143 empowers the Judicial magistrates of the first class or Metropolitan magistrates to try the cases summarily as per the provisions of sections 262 to 265 of the Criminal Procedure Code and the Magistrates under this section has the authority to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees. If the Magistrate apprehends that a sentence of imprisonment for a term exceeding one year may have to be passed or for any other reason undesirable to the case summarily the magistrate shall after hearing or rehearing the parties and witnesses shall record the reasons in writing and proceed in the manner stipulated in the code. For mode of service the magistrate may direct to serve the copy of the summon through speed post or courier service approved by the Court of Session either at the place where the accused or witness ordinarily resides or carries on business or personally works for gain. In case of refusal to receive the court issuing the summons may declare that the summons has been duly served.
Cognizance without physical appearance The essence of physical appearance has been diluted by sec 145 this was done in order to render speedy justice. Sec 145 deals with receiving evidence on affidavit. For taking cognizance it is not mandatory for the complainant to come in-person to file the complaint. If the court is satisfied based on the application either by the prosecution or the accused, can issue subpoena and examine any person adducing evidence on affidavit.
The supreme court in Indian bank association vs. Union of India, held that court has option of accepting affidavits of complainant and other witnesses instead of examining them in the court, for their examination-in-chief – However, witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court.
In Areeplavan Finance vs. State of Kerala & Ors, Justice B Sudheendra Kumar held that it is “abundantly clear from the object of enactment of Section 145 of the N.I. Act and the ratio laid down by the Apex Court that the personal appearance of the complainant is not necessary for taking cognizance of the offence.
“Therefore, the courts dealing with the cases under Section 138 of the N.I. Act shall not insist for the personal appearance of the complainant at the pre-cognizance stage if the complaint is accompanied by the affidavit of the complainant and the affidavit and the documents, if any, are found to be in order. This being the position, the dismissal of the complaints by the court below before taking cognizance on the reason that the complainant was not present in person before the court cannot be justified”.
From the above it can be deduced that the courts have the option to take cognizance of the offence without the personal appearance of the complainant in case of complaint accompanied by affidavit.
Mischievous Defences In most of the cheque case the two defences which are taken by the accused are; 1. Cheque lost and stoppage instruction 2. Source of funds
The Hon’ble Supreme court has ended the cheque stoppage, a baleful defence by applying the rule of interpretation in Sec.138 of the Negotiable Instrument Act cases. The court censured the literal interpretation of the sec and construed the provision in the light of upholding the credibility and acceptability of the post-dated cheque transaction and in concurrence with the object of the Act.
In Goa Plast (Pvt) Ltd. vs. Chico Ursula D’Souza, the apex court held that The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. The reiterated the same position inRangappa vs. Shri Mohan.
The Supreme court feels that the defence of proof of funds after presumption is a filthy one. InRohitbhai Jivanlal Patel Vs. State of Gujarat & Anr., the court held that Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not”. Latest amendments in the Negotiable Instrument Act.
The 2018 amendment bill faces some mixed reviews, some said it is a bill for money launders but majority said that the bill will bring down the unnecessary litigation. But as Dr.Shashi Taroor mentioned, the bill failed to give space for trail in-absentia. The main focus of the bill was interim compensation. Sec 143A and sec 148 have been inserted by virtue of the Negotiable Instrument Amendment Act, 2018 .
This amendment deals with the concept called interim compensation. In pursuance of sec 143, if the accused pleads not guilty the court may order him to pay interim compensation not exceeding twenty percentage of the cheque amount. The accused has to pay the compensation within sixty days from the date of the order which can be further extended to thirty days if the court is satisfied by the reasons. When the interim compensation remains unpaid the same can be recovered as fine under section 421 of the Criminal Procedure Code, 1973.
Sec 421 of the Criminal Procedure Code, 1973 reads as follows Warrant for levy of fine.
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.
2) The State Government may make rules regulating the manner In which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
In case of acquittal the complainant is bound to pay the interim compensation along with interest from the date of such order till the sixtieth day which can be further extended to thirty days after showing sufficient cause. Sec 148 relates to payment of interim compensation in the stage of appeal , in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation awarded by the trial Court and it follows the same proposition laid down in sec 145A.
According to sec 147 all offences which are punishable under this Act can be compounded. This section plays a major role in decreasing the pendency ratio.
InJ&K Industries Ltd vs. Amarlal Vs. Juman, the top court observed that in view of the non-obstante clause in sec 147 of the Act, the requirement of consent of the person compounding in sec 320 of CrPc is necessary even in case of compounding of offence under the Negotiable Instruments Act. But the judgement didn’t withstand for a long time.
The judgement was overruled by the court inM/S. Meters and Instruments Pvt. Ltd & Anr vs. Kanchan Mehtawherein it was held that Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. Therefore, from theM/S. Meters and Instruments Pvt. Ltd & Anr vs. Kanchan Mehtaverdict it can be inferred that if the courts finds that the complainant is duly compensated then the courts in the interest of justice, have full power to close the trail without anyone’s concurrence.
It is very pathetic to hear besides all these developments, colossal cheque bounce cases remain unsettled. The law commission in its report suggested for constitution of fast track magisterial courts to address the problem of pendency of dishonoured cheque cases. The report says over 38 lacs cases remain unresolved cross all over the courts in India. As per Times now report, Law and Justice Minister Ravi Shankar Prasad said that the government is working for bringing fast track court mechanism for dishonoured cheque case. Nonetheless, the state hasn’t initiated any step for setting up fast track courts at magisterial level in the 2018 amendment. Let’s hope it in the next amendment. The Hon’ble Supreme court by virtue of its law making power as given in the constitution provided many directions in catena of cases in order to ensure speedy trail, now it is left to the legislators to make the Act more vibrant in the upcoming times.
Right to justice is one of the fundamental rights and one of the primary rights of any individual. The Preamble to the Constitution of India guarantees to all citizens, social, economic and political justice. One of the prime objectives of the Indian Judicial system is to ensure that justice is given to all. The most important players of this system among others are the Judges and advocates; one who decides and one who helps the people to get justice. Advocates, in addition to being independent professionals, are also officers of the Courts and play a vital role in the administration of justice. Accordingly, the set of rules that govern their professional conduct arises out of the duty that they owe to the Court, their clients, their opponents and fellow advocates.[i]
The professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed under Section 49(1)(c) of the Advocates Act, 1961. Under Rules on ‘An Advocate’s duty Towards the Client’ following practices are mentioned:
An advocate is bound to accept briefs
An advocate should not to withdraw from service
An advocate should not appear in matters where he himself is a witness
An advocate must make full and frank disclosure to client
A advocate must uphold interest of the client
An advocate should not suppress material or evidence
An advocate should not disclose the communications between client and himself
An advocate should not be a party to stir up or instigate litigation.
An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.
An advocate should not charge depending on the success of the litigation
An advocate should not receive interest in actionable claim
An advocate should not bid or purchase or transfer property arising out of legal proceeding
An advocate should not adjust fees against personal liability
An advocate should not misuse or take advantage of the confidence reposed in him by his client.
An advocate should keep proper accounts and not divert money from accounts
An advocate should intimate the client on amounts
An advocate should adjust fees after termination of proceedings
An advocate should provide copy of accounts
An advocate should not enter into arrangements whereby funds in his hands are converted into loans.
An advocate should not lend money to his client
An advocate should not appear for the opposite parties
If an advocate fails to fulfil any of the duties towards his/her client or the performance of the advocate is not satisfactory to the client, the client can at any point of time prior to the ending of the case, change his pleader for any reason. The client can take such a decision for whatever reason; because even though the client hired the services of a professional, he/she is still ultimately responsible for his/her own legal affairs. If there is reason to believe that, there is a problem one needs to speak up and take responsibility for fixing it.[ii]
This absolute right remains even if the advocate has rendered valuable services or the client owes the advocate his fees. Although a client does not need to have a reason, common circumstances for changing an advocate include[iii]:
An advocate’s conflict of interest
Differing case strategies or personality conflicts
A change in the pleadings or parties of the case
A change of the Court hearing the case
Expanded legal needs which the advocate fails to fulfil
When an advocate is appointed by a client for a certain case under Order 4 of Civil Procedure Code, 1908 the pleader has to file to the Court a duly signed written document by the client, which is termed as a Vakalatnama. In case a client is not satisfied with the lawyer, then first, the client should discuss it with the lawyer, and resolve the issue amicably. If it is not resolved then he might ask for a No Objection Certificate (NOC) on the Vakalatnama or on other documents related to the case. This is an easier way. But in case the advocate does not agree to give a NOC, then the person can issue a notice of termination to the advocate and apply to the court for withdrawal of Vakalatnama. Order 3 of Civil Procedure Code gives aggrieved persons the right to choose one’s pleader. Therefore changing of pleader with the leave of the Court is possible. The new pleader should submit a duly signed Vakalatnama to the court. Hence it is possible to change one’s pleader. In a few cases problem arises with the case history. If the pleader fails to give it to the client, the client can apply for the order sheet by an application to the Court.
Though right to justice is guaranteed by the Indian Constitution; way to justice is to be made by the person seeking justice. Hence, although the pleader is going to appear before the court the full responsibility rests on the instituting or defending the suit or criminal proceeding. Therefore, if the appointed attorney is not fulfilling the purpose then the client can at anytime can exercise such right
The tax officials often act as quasi-judicial authorities in disposing of taxation disputes between the taxpayer and the government. The resolution of disputes require keen investigation and access to evidences like financial documents, invoices, account statements etc. Though there are powers of searches, raids etc which has been bestowed under direct taxation laws as well indirect taxation laws yet it becomes very important to ask the taxpayer for production of required documents themselves before initiating any coercive actions like searches and raids. Hence, in order to facilitate the taxpayer before coercive action, there is power to summon. Summons, as understood in legal parlance is intimation requiring a person to whom it is issued to appear to give evidence and or produce documents etc.
Power to summon is mentioned in direct tax cases under section 131 of the IT act 1961. The same is mentioned for indirect taxation cases in section 14 of erstwhile CE act 1944 subsumed under section 70 of the CGST act 2017 and section 108 of the customs act 1962.
If we look at the text as mentioned in section 14 of erstwhile CE act 1944, though it is written that the proceedings under the section are termed as judicial proceeding as in section 193 and section 228 of IPC 1860 but the power was somewhat diluted as there was no mention of the situation where a taxpayer fails to appear before the summoning authority even after reasonable time or repeated opportunities.
In such situations, the practical procedure was very cumbersome. The summoning authority needed to approach the civil court through their lawyer after giving intimation to the senior authorities for the execution of summons against the taxpayer. The civil court in such cases either ordered the taxpayer to appear before the summoning authority or has the powers to invoke section 172, section 173, section 174 and section 175 of IPC 1860 as the case may be, against the taxpayer for non-appearance on being summoned. This was a big hurdle in the course of investigation and an opportunity to the taxpayer for defiance of law. The judicial process in the civil courts is often time consuming and an additional burden on the exchequer.
This was addressed in the IT act 1961 where in section 131 of the act itself, it was added that the summoning authority is vested with the same powers as court under the code of civil procedure 1908 (5 of 1908). This provision under the act read with rule 10 orders XVI of the CPC 1908 gave powers to the summoning authority to issue an arrest warrant against the taxpayer in the event of deliberate defiance of summons even after giving reasonable time and opportunity to appear for the production of evidences before the authorities. Thus, the need to knock at the doors of a civil court for the execution of summon was done away with under the direct taxation cases.
However in the cases of indirect tax investigations as in central excise and service tax, this defiance of summons were continued and the tax authorities were often left red faced and clueless. They were forced to initiate coercive actions like raids and searches, which were often not that fruitful as in such cases the element of surprise used to be missing.
The issue seems to be addressed in the new CGST act 2017 where in section 70 states that “the proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908.
This addition of the word Civil court under the provisions of the code of CPC 1908 € has the implication of doing away from the need of going to the civil court for execution of the summons in cases of deliberate defiance by the summoned taxpayers.
However, it is still prevalent that even under GST regime and in cases where multiple thousand crores tax money has been siphoned off; the indirect tax officials are going to the courts for execution of summons leading to undue delay in investigation and additional expenditure. This is apparent because of inertia and lack of precedence. Hence, there is a need to exercise this new provision bestowing new powers to the indirect tax officials which can be eased if the CBIC issues such clear directions.
Further, there should also be exercised caution and restraint against frivolous use of this provision. This should be used after due justification and as a measure of last resort in cases of deliberate defiance of summons. It should not be used repeatedly as a weapon of attack upon the freedom of the taxpayer rather as a shield of protection for the law of the land.
The term White Collar Crimes (WCC) was propounded by a famous criminologist and sociologist Edwin H. Sutherland in the year 1939. The idea behind this new term was that – Necessity is not always the motive behind commission of a crime.In other words, he wanted to categorize certain types of crimes that are committed in a society without being any necessity for the criminal to commit it. here are the Top 7 Psychological Hurdles Faced While Prosecuting White Collar Crimes
Following are certain key features of a WCC:
1. It is basically a crime that is committed by salaried professional workers or persons in business and usually involves a form of financial theft or fraud.
2. These crimes are non-violent crimes committed by business people through deceptive activities who are able to access large amounts of money for the purpose of financial gain.
3. They are committed by people who are involved in otherwise, lawful businesses and cover a wide range of activities.
4. The perpetrators hold respectable positions in the communities unless their crime is discovered and
5. The law relating to these crimes would depend upon the exact nature of the crime committed.
In the research article, the researcher would be discussing about the various psychological hurdles that are faced while prosecuting these white collar criminals.
Now, we will be discussing the various reasons or the various hurdles that are faced while prosecuting these White Collar Criminals. There are certain problems that are common to all the stages of a prosecution whereas there are certain problems that are specific to one stage of a prosecution. For this, the researcher has divided the problems on the basis of the various stages of a prosecution and following are the stages:
1. Pre investigation
First of all, the researcher would be dealing with the problems that are common to all the stages of prosecution.
Following are the common problems:
1. Criminals being part of the system:
These type of criminals are different from the traditional criminals. They are part of the system or the group that is entrusted for making or implementing laws relating to these WCC or are in close connection with these people. Therefore, they are in a position to mould or shape the system that is favourable to them. Hence, leading to favourable laws for them, lesser punishments, delayed investigation or delayed trial etc.. Also, they are in a position to influence the victims as well for non filing complaint by threatening them of unwanted consequences.
2. Fear in the minds of the people, be it the victim, witnesses, the investigating agency and everyone involved in the prosecution process:
In these WCC, the criminal belongs to the upper strata of the society, due to which the people in general are in fear of saying or doing anything against them. People here would include the victim while filing a complaint, the witnesses investigated involved during the investigation, the investigating agency and even the court has the fear of deciding against these people due to the high status or repute of such criminals.
The fear sometimes is not limited to the victim but his family as well, due to these circumstances a lot of white collar criminals are left unpunished.
3. Lack of awareness:
These WCC are committed within the strict letter of the law or at such level that the common people are not even aware of the commission of such crimes. The irony of the situation is that “the credibility of the victim is affected and he is not even aware of it”. It is because they are not aware, a lot of cases are not even filed against such criminals.
4. Legislative gridlock:
The WCC involve a huge amount of money and when the national economy is at stake, politics very often play a role. With politicians divided as they currently are, getting anything accomplished can be difficult. There is a lot of back and forth between politicians about how to proceed with prosecuting such crimes, how much of a role the government should play and what the penalties should be. The result—resolution takes months, if not years because of the gridlock.
Due to the non stricter laws, absence of any time deadlines for the investigation and trial of the case. The Legal battles take years in punishing the criminals and hence leading to diffusion of gravity of the offence with time.
6. Lesser impact on individual person:
The impact of white collar crimes is so much diffused in the community that the individual victims are only marginally affected by it, and therefore they conveniently forget all about it. Due to the lesser impact, people easily forget about it and are not much concerned about what happen to the trial and the criminal proving a room for the criminal to escape.
7. The prevailing HONESTY in the system:
This is also one of the major factors that lead to the unpunished White Collar Criminal. The Indian system is not at all honest and can be bribed very easily and the criminal can make everything in his favour. He can bribe the witnesses, the investigating agency or even the prosecuting agency, in such a scenario, it is very difficult for punishing such criminals.
Now, the researcher would be dealing with the factors that are specific to particular stages of the prosecution one by one: 1. Pre Investigation:
This stage basically is concerned with the victims who have to file a complaint against these white collar criminals so that the whole process of prosecuting them can start. There are a lot of impediments at this only some are created by the white collar criminals, others by the system and some by the victims themselves.
# First comes the impediment created by the victims. Victims are themselves not interested in filing such complaints as they are not directly related with these crimes. Also, they have this fear of complaining against the powerful in their heads and have a fear that this can adversely affect them or their family. Also, in some of the WCC they themselves have contributed, due to which they are less interested in filing complaints against such WCC.
At times, the member of community themselves contribute to the commission of various white collar crimes willingly or unwillingly. For instance illegal gratification to public servant to get the work done quickly, black marketing in time of scarcity, evasive price violation, rent ceiling violation etc…. are some of the common examples where victims of the crime are themselves to be blamed for involvement in white collar criminality. In fact such crimes cannot be committed unless there is demand for illegal favour from consumers and they are actively involved in the deal.
When they have contributed to the commission, they are not interested in prosecuting the White Collar Criminal and hence no complaints are filed against them.
# Next comes the impediments created by the white collar criminals. He plays a very important role in non filing of the complaints by the victims. His reputation and the high status acts as a passive impediment whereas his direct involvement acts as an active impediment. He directly tries to influence the victims or the complainants for not filing the complaints either by illegal gratification or by some kind of thread to his body or property.
# Next are the impediments created by the system. Indian legal system is such that it creates a lot of impediments for the victim to stand against a white collar criminal. Some of the impediments are delayed justice, favourable laws, dishonesty etc.
Even though these are very big obstacles or fears in the mind of the victims or the complainants while raising a voice against these white collar criminals. However, the government had tried to formulate such laws that the victims can freely file the complaints them and have no fear in their minds while complaining. One such example of the initiative is THE WHISTLE BLOWERS PROTECTION ACT, 2014. Under this act protection is given the various people called the whistleblowers for alarming against such white collar criminals.
There are certain specific problems with respect to this stage of investigation as well. Following are those problems:
# The first one relates to the investigating agency. The problem in this case is again the impact on the investigating agency or the fear in the minds of the investigating agency. As we have already discussed that these white collar criminals are very influential and are part of the system as well. Due to this fact, the investigating agency is also fearful of doing their work or investigation in a proper manner. They are in a fear or concluding the investigation against the influential the white collar criminal. We all know that investigation plays a very important part in the trial. Therefore, if the investigation is faulty or is in favour of the white collar criminal, the case would itself loose its hold at the trial stage, leading the criminal unpunished.
# The second one relates to the witnesses. The same problem of fear and impact comes into picture in case of witnesses as well. The witnesses are generally not interested in giving any evidence against the white collar criminal, him being a very influential person. Due to this, the evidence available against the white collar criminal weakens and weakens the investigation as well.
· The third problem relates to the tampering of evidence or important materials. Investigation takes a lot of time, due to which the accused gets a lot of time for tampering of the evidences and influencing the witnesses not to give any statement against him. Due to the delay or time taken for investigation, there is a scope of tampering as well and this tampering is obviously done in such a way that it leads the investigation in wrong directions or in favour of the accused.
This is all about the impediments at the investigation stage.
This stage includes certain impediments as well. There are certain impediments that are similar to earlier stages, whereas there are certain impediments that are specific to this stage only.
Following are the 2 specific impediments with respect to this stage:
# The first one relates to hostility of witnesses. The white collar criminals are so influential that first of all no one is ready to be a witness against him and if someone is ready to be witness against him, there are a lot of chances that during the trial he goes hostile and if he goes hostile the whole prosecution case would collapse and hence leading to the acquittal of the accused, the white collar criminal.
Now, one important question that arises is that why a witness would go hostile? There can be a number of reasons as to why the witnesses go hostile, one such reason being the threat he would have received for giving any statement against the accused. In WCC, the accused being the influential person, this is the most important and probable reason for going a witness hostile in the trial against a white collar criminal.
# The second one relates to probability of dishonest intentions of the prosecution. These white collar criminals or the accused of these WCC are so influential that even the prosecution is not interested in getting him convicted. Even he is in favour or side of the accused. Even if he is not in the favour of the accused wilfully, he is made not to do his job properly so that the accused is not acquitted and the charges against him are either dismissed or set aside.
These are certain specific impediments with respect to the stage of trial that comes to the way of detecting a WCC and punishing the accused of such WCC.
Now, comes the final stage i.e. the conviction part or the judgement part. This is the last stage of a trial, only few cases of the total WCC committed reach to this stage.
To this stage as well there are certain specific impediments that come the way of punishing the accused of a WCC:
# The first problem with respect to the conviction stage is the sympathy of the judge towards the accused of the WCC. The accused of such crimes and the judges all form part of the same class, therefore the judges are a bit reluctant in sentencing these accused to a very high punishment. Even if we imagine that the judge is so honest and that the judge is not at all sympathetic towards the accused, even then there can be a lot of circumstances where that judge has to face a lot of pressure from the high fraternity of not convicting such accused. The result of all such scenario is that the accused of such WCC goes unpunished.
· The second problem or impediment that the courts face at this is the Lack of material on record or lack of evidence. As we have already discussed as to how the witnesses goes hostile, how they are not interested in giving the evidence against the accused, how the investigating agency favours the accused and also how even the prosecution favours the accused. All this leads to a situation where the judge knows that the accused is guilty and wants to convict him but cannot do so because the material on record is not sufficient enough to hold the accused guilty and hence leading to a situation where the accused goes punished and is acquitted.
# The third impediment is that of the Favourable laws. We are well aware that in India, the criminal law favours the accused. The biggest proof of this favour lies in the main concept of proof in the criminal law, which states that “a crime against a criminal must be proved against all reasonable doubts”. This means that the prosecution has to prove that the accused is involved in commission of WCC beyond all reasonable doubts which is a bit difficult the above impediments in the various stages of a prosecution. Hence, the result would be that the accused of a WCC goes unpunished.
# The fourth impediment relates to the Delay in the whole process. This whole process of investigation and trial is elaborately done that it takes years to reach the conviction stage. As we know that the victim in case of WCC is society as a whole, due to the time taken, the society becomes less and less interested in the outcome of the prosecution. Since, they are not interested in the prosecution, there is as such no pressure on the system to convict the accused and the result is that either the accused is released or there is a relaxation in the punishment awarded to him.
This is all about the common and the specific impediments that are faced while prosecuting the accused of a WCC.
Suggestions For Avoiding Or Reducing Such Hurdles:
Following are the suggestions the researcher would like to give with respect to how these impediments or problems in prosecutions be avoided or at least tried to be reduced:
1. Curbing the root cause being the influential nature of the accused:
The root cause of all or rather majority of the impediments is the power or the influential nature of the accused of the WCC. Due to his influential nature or his power, he tries to effect the prosecution at each and every stage be it the pre investigation, the investigation, trial or the conviction stage. He basically tries to create a kind of fear in the minds of the various people involved at various stages, not to do or say anything that goes or that can go against him. Hence, misleading the whole process.
My suggestion to this problem or impediment is that a system must be created whereby the accused is not able to influence the people. There is a need of more and more laws like THE WHISTLE BLOWERS ACT, whereby the identity of the complainant is secured so that the accused is not able to influence or threaten him.
My second suggestion is that a system of incentive must be created so that the people are motivated to come forward against these white collar criminals. The various people like the complainants, the witnesses, the investigating agency, the prosecution lawyer, the judges be incentive in case they help in taking the case to conviction stage. The incentive can be in the form of money or any other kind of gesture of his excellence so that are motivated to do their job in the best way they can.
3. Restrictions on the accused:
As we have discussed that once a complaint has been filed against the accused, he tries to adversely influence the whole process in a way that is favourable to him. A system should be developed through which he is prevented to do so. It can be done by some extra restrictions to his body, phone tapping etc.
4. Security to the people:
This suggestion again relates to the influential nature of the accused. There are a number of people involved in a case be it the complainants, the witnesses, the investigating agencies, the prosecution lawyer, the judge who have a fear in their mind that they would be adversely affected or that they or their family would be harmed in case they say or do anything against the accused.
A system should be created in which an extra security be provided to these people so that they do not have the fear of any adverse happening to them or their family and can proceed towards the case with full vigor.
5. Speedy trial and timelines:
This suggestion is with respect to delay that occurs in the whole process. It take years from when the complaint is filed to when the investigation is completed to when the trial begins and to when it finally end. The time taken is so much that by the time the judgement is to be passed, the whole matter losses it rigor and the people are not at all concerned as to what has finally happened to the accused.
For this problem, I have basically 2 suggestions, first one being the concept of speedy trial and the other being the introduction of timelines. That the legislature should introduce timelines with respect to various stages during or before completion of which the process be completed.
6. Role of legislature:
Legislature plays a very important role to play while enacting laws of this kind. These are the kind of laws that would criminalize or would adversely affect the people they form a part of. Therefore, they adopt a bit relaxed approach while enacting laws relating to the WCC. This is not what is expected from them, they are expected to act more responsibly while dealing with such matters. They should not enact laws that favors the special class of people who are to be designated as criminals by the law rather they should enact the law that favors the people, the society for whose welfare they are expected o work.
7. Stricter laws favorable laws:
As we have seen that the laws relating to the white collar crimes are not strict and also a bit favorable to the accused. There should be stricter laws for them.
Also, laws should be there with respect to the root cause of all the problems that is “their power to influence the whole process”. With respect to this special aspect, the law should stricter the accused should think twice before doing any act that would adversely affect the trial or would make the trial in his favor.
In fact, laws should be there for detection of whether the accused is trying to influence the process. Special care be taken that he is not in a position to influence the whole process. If this thing is cured or avoided, a lot of other defects would automatically be cure or avoided. In other words, this is the most important impediment or problem that should be taken care of by the authorities at the earliest.
This is all about the suggestions the researcher would like to give so to reduce or avoid the various impediments in the process.
This is all about the psychological hurdles that are faced while prosecuting these white collar criminals. The nature of these offences is very peculiar, therefore, they cannot be dealt with the general law and there is need of special attention towards these WCC. To conclude, it can be said that there is a need that our legislature and all the concerned authorities that an environment be created so that these hurdles be removed.
Our Nation must have Strict Gun Laws Gun should not be given to any person whoever applies for it without proper verification.To put things in perspective, a 28-year-old man named Brenton Tarrant has been taken into custody and charged with murder. The shooter targeted two mosques in Christchurch: the Al Noor mosque where 42 people were killed mercilessly and another at the Linwood mosque where seven people died. The alleged shooter also live-streamed his dastardly and ghastly attack on social media, most gruesomely displaying how he entered the mosque and shot worshippers as they struggled to flee. It is reported that seven Indians have also lost their lives in this cowardly and most reprehensible attack!
Needless to say, in a brief press conference, New Zealand Prime Minister Jacinda Ardern called the mass murder a “terrorist attack” and said that the perpetrators held “extremist views” that have no place in New Zealand. She very rightly lamented that “This is one of New Zealand’s darkest days.” India reiterated its unstinted support to New Zealand in its hour of the crisis along with other nations.
It is gratifying to learn that in the wake of the terrorist attacks at two mosques in Christchurch in New Zealand, it is Prime Minister Jacinda Ardern has said that she would soon announce new gun laws. While New Zealand’s gun laws are not as restrictive as in, say, Australia, those of countries such as the US are far more relaxed. The New York Times listed what it takes to own a gun in several countries. Let us discuss some of them here apart from those listed in The New York Times. They are as follows: –
3. Interview in person between authorities and the applicant’s partner or next of kin.
4. Inspection for firearm storage facilities at home.
5. A gun safety course.
It must be pointed out here that Reuters quoted Radio New Zealand is reporting that more than 99% of applicants for a firearms license in 2017 were successful. The country, whose population is 5 million, has an estimated 1.5 million firearms. Only owners are licensed, not weapons, so there is no monitoring of how many weapons a person may possess. This loophole must be plugged right now in the wake of the dastardly attack on a mosque which has left 50 dead! Buying handguns and certain semi-automatic rifles require a special permit. It is recommended that no person from now onwards should be allowed more than one gun and here too there must be proper and strict police verification. It is also recommended that vehicles should be checked at various points to ensure that no person is carrying gun especially at religious shrines and other important places.
1. Must join and regularly attend a hunting or shooting club, or be a collector.
2. Course on firearm safety and operation, written test and practical assessment.
3. Storage that meets safety regulations.
4. A review of criminal history, domestic violence, restraining orders and arrest history, with possible interviews of family and community members.
5. Specific permits for specific types of weapons; wait is of at least 28 days.
No doubt, these laws are some of the toughest in the world. Countries like New Zealand must emulate them to ensure that no person is ever able to carry out such ghastly attack so easily! Here it must be revealed that Australia had introduced them after a lone gunman killed 35 people in Port Arthur in 1996 using a semi-automatic AR-15 (the same weapon that was used in Christchurch), Reuters reported. Australia had banned semi-automatics, launched a gun amnesty in which tens of thousands of weapons were handed in and made it much tougher to own them. Gun owners must provide a valid reason for owning a weapon and gun clubs must inform the authorities of inactive members.
1. Background check for criminal convictions, domestic violence, and immigration status.
2. Many US states have additional buying restrictions, including waiting periods and expanded background checks.
3. Where these waiting periods do not apply, an application may be cleared in days. Roughly a third of American gun owners buy guns without a background check, which federal law does not require when buying directly from a private seller. This loophole must be checked forthwith. There must be a proper background check. It is because of such loopholes that we keep listening in the news that gun attacks keep happening regularly in the USA.
4. Fugitives, those convicted of a felony with a sentence exceeding 1 year, past or present and those who were involuntarily admitted to a mental facility are prohibited from purchasing a firearm unless rights restored.
5. Forty-four states have a provision in their state constitutions similar to the Second Amendment to the United States Constitution, which protects the right to keep and bear arms. The exceptions are California, Iowa, Maryland, Minnesota, New Jersey, and New York. In New York, however, it must be stated that the statutory civil rights laws contain a provision virtually identical to the Second Amendment.
6. Additionally, the US Supreme Court held in McDonald v. City of Chicago (2010) that the protections of the Second Amendment to keep and bear arms for self-defense in one’s home apply against state governments and their political subdivisions.
7. More recently, the Ninth Circuit Court ruled in its 2016 decision titled Peruta v. San Diego County that the Second Amendment does not guarantee the right of gun owners to carry concealed firearms in public.
1. A firearms class and a written exam held up to three times a year.
2. A doctor’s certificate of mental fitness and the absence of a history of drug abuse. It is a commendable provision.
3. Firing training (permission for undertaking this course may take up to a month). One-day training class, with a firing test, has to be cleared.
4. Interview with police, whom applicant must convince why he or she needs a gun. This again is very commendable and every country must emulate it.
5. Review of criminal history, gun possession record, employment, even personal debt and relationships with friends, family, and neighbors.
6. Application for gunpowder permit.
7. Certificate from a dealer describing the gun.
8. Hunting license (if hunting is purpose).
9. Gun safe and ammunition locker that meet regulations, to be inspected by police.
10. An additional background review.
1. Hunting license, or reasons why gun needed for self-defense which is commendable.
2. A test of relevant laws, handling, first aid skills.
3. A doctor’s note certifying the absence of mental illness or drug history which is again very commendable.
4. All the above before application. After applying, a background check which again is commendable.
1. Reasons to possess a firearm.
2. Storage at the gun range, remote hunting ground or pastoral area.
3. Demonstration of knowledge of safe gun use and storage.
4. A background check of mental illness, criminal record, and domestic violence.
5. In China, most civilians are prohibited from keeping guns inside their homes. This is the most commendable provision and it must be emulated in countries like New Zealand and the USA were incidents of violence and misuse of guns is increasing!
United Kingdom (UK)
1. In the UK, access by the general public to firearms is tightly controlled by law which is much more restrictive than the minimum rules required by the European Firearms Directive, but it is less restrictive in Northern Ireland. All countries must emulate the UK.
2. No wonder that the UK has one of the lowest rates of gun homicides in the world.
3. Members of the public may own sporting rifles and shotguns, subject to licensing, but handguns were effectively banned after the Dunblane school massacre in 1996 with the exception of Northern Ireland.
1. Ukraine is the only country in Europe where firearms are not regulated by statute.
2. Citizens are permitted to own non-fully automatic rifles and shotguns as long as they are stored properly when not in use.
3. Handguns are illegal except for target shooting and those who hold concealed carry permits.
4. A citizen may be issued a firearms license if that person:
(i) is 25 years of age for rifle ownership, 21 years of age for smoothbore weapon ownership, 18 years of age for cold or pneumatic weapon ownership;
(ii) has no criminal record;
(iii) has no history of domestic violence;
(iv) has no mental illness or history of mental illness;
(v) has a good reason (target shooting, hunting, collection).
5. Gun owners are required by Order to renew their licenses and registration of their guns every three years. Failure to comply will result in revocation as well as confiscation of guns.
6. Concealed carry licenses are available but are not normally issued unless a threat to life is present and can be proven.
1. In 2018, Israel significantly loosened firearms restrictions, allowing all citizens who had undergone combat training and qualified in Advanced Infantry Training (Rifleman 07) to apply for a private handgun license.
2. Prior to 2018, only a small group of people were eligible for firearm licenses: certain military personnel, police officers or prison guards; residents of settlements (in the West Bank and the Golan Heights) or those who often work in such towns and licensed hunters and animal control officers.
3. Age requirements vary. It is 21 for those who completed military service or civil service equivalent, 27 otherwise and 45 for non-citizens.
4. Firearm license applicants must have been a resident of Israel for at least three consecutive years.
5. Background check (criminal, health and mental history) should be passed.
6. Applicant should establish a genuine reason for possessing a firearm (such as self-defense, hunting or sport).
7. A weapons-training course should be passed.
8. Those holding firearm licenses must renew them and pass a shooting course every three years.
1. Kuwait has strict firearms laws.
2. Hunting shotguns are the most commonly licensed weapons.
3. Handguns are only allowed for VIPs.
4. Automatic rifles and machine guns are not legally permitted for civilian possession.
1. Ownership of any firearm other than handguns, hunting arms and antiques is illegal and only the latter two are permitted to leave the owner’s home.
2. Disregard for this law is prevalent.
3. Lebanon does not officially grant the right to bear arms, but it is a firmly held cultural belief in the country.
4. Firearms licenses are granted to certain individuals but the test is not open to the public and requires a particular need to be demonstrated.
5. Gun control has been largely unsuccessful due to historic gun culture and a lack of effective central government control or authority over many parts of the country.
1. Malaysia has strict gun laws.
2. The Arms Act (1960) requires the citizens of Malaysia to have a license for manufacture, import, export, repair or ownership of firearms.
3. A firearm license can only be granted by the Chief Police Officer of a state.
4. Discharging in crimes such as extortion, robbery, resisting arrest, and house-breaking is punished by the death penalty.
5. Exhibiting a firearm for any of the scheduled offenses (without discharging) carries a penalty of life imprisonment and caning of not less than six strokes.
6. Possession of unlawful firearms carries a sentence of up to fourteen years in prison and caning.
7. While the general public cannot obtain a gun through legal means but a black market for guns does exist.
1. Firearms cannot be easily acquired.
2. In 2009, North Korea enacted a new law strictly regulating firearms.
1. It is very easy to acquire a gun.
2. It has permissive firearms laws compared to the rest of South Asia.
3. It has the sixth highest number of privately owned guns in the world.
4. The law in Pakistan does not stipulate that a gun license should be denied or revoked.
5. Gun culture is strong in Pakistan.
6. A license permits ownership of any number of weapons including handguns of any size and fully automatic weapons.
1. It has generally strict gun laws, though liberal in comparison to other Asia-Pacific countries.
2. Gun control became notorious in 1972 during the presidency of Ferdinand Marcos who implemented a near-prohibition of all civilian guns.
3. Applicants must be of a minimum age of 21 years and have no history of criminal activity or domestic violence.
4. License-holders may carry handguns in public with the acquisition of a Permit to Carry (PTC), which are granted on a may-issue basis.
5. Applicants must demonstrate a need for a PTC like an imminent threat of danger.
6. PTCs are typically granted to lawyers, accountants, media practitioners, cashiers, bank tellers, priests, ministers, rabbis, imams, physicians, nurses or engineers.
7. In spite of strict laws, gun culture is strong.
1. Gun law in Kenya is specified in the Firearms Act (Cap. 114) laws of Kenya.
2. The Chief Licensing Officer (CLO) has the discretion to award, deny or revoke firearms licenses.
3. Applicants must be 21 years of age or older, pass a stringent background check for criminal activity, mental health and domestic violence and state bona fide reasons for their need to privately own and carry a firearm.
4. Checks are regularly repeated with failure to pass resulting in the immediate revocation of the license.
5. Once licensed to own a gun, no additional permit is required to carry a concealed firearm.
1. To apply for a firearm license in South Africa, the applicants must pass a competency test covering the specific type of firearm you are applying a license for and a test on the South African firearm laws.
2. Once these tests are passed then the applicant needs to apply for a competency certificate where the South African Police Service will perform a background check and an inspection of the premises where the firearm will be stored.
3. After both, the tests are passed and the certificates are awarded the applicant can then apply for a firearm license in the categories ranging from self-defense to professional training.
4. Different license categories have different restrictions as for instance the amount of ammunition that the owner may hold.
1. Firearms in Argentina are restricted and regulated by ANMaC (Agencia Nacional de Materiales Controlados) since late October 2015 when said agency replaced RENAR (Registro Nacional de Armas de la Republica Argentina), both being a branch of the Ministry of Justice and Human Rights.
2. To own a firearm in Argentina, one must be a legitimate user.
3. Applicant must be 21 years of age or older, provide a medical certificate that certifies they are physically and mentally fit, complete a safety course, provide a legitimate means of income and undergo and pass a background check.
4. A successful applicant is fingerprinted and issued a license which has to be renewed every five years.
5. One may not legally fire a firearm in Argentina if they are not a legitimate user, even if that gun belongs to someone else.
6. Once a legitimate user wants to purchase a firearm, they must provide a secure location to store the firearm(s), and give an acceptable reason for wanting a firearm – such as collecting, target shooting, hunting, business or self-defense in the home.
7. Firearms must be purchased through a licensed dealer and registered with ANMaC.
8. If a firearm is inherited, a re-registering form must be filed.
9. There is no limit on the number of firearms owned so long as they are properly stored.
10. Handguns above .32 caliber are conditional-use; fully automatic handguns are prohibited to civilians.
1. All firearms in Brazil are required to be registered.
2. The minimum age for ownership is 25.
3. Certificates of aptitude and mental health are required prior to the acquisition of a firearm and every three years thereafter.
4. It is generally illegal to carry a firearm outside a residence.
5. Executive Order No. 5.123 of 1 July 2004 allows the Federal Police to confiscate firearms which are not possessed for a valid reason.
6. Self-defense is not considered a valid argument.
1. Under the Mexican Constitution, citizens and legal residents have the right to own arms, but may only carry them in accordance with police regulation.
2. Applicants must have a clear criminal record and proven income and residence thereby clearly implying that they cannot be homeless.
3. New firearms are purchased through the Ministry of Defense.
4. Prohibited weapons include large-caliber handguns, shotguns with barrels shorter than 25 inches (640 mm) or bore greater than 12 gauge and rifles which are fully automatic or of large caliber.
5. One handgun is permitted for home defense.
6. Collectors may be authorized to possess additional and prohibited weapons.
7. A carry license may be issued to those employed by private security firms or those who may be targets of crime.
1. Indonesia has generally strict gun laws.
2. Licenses are normally only issued to civilians employed in a profession that involves firearms such as military and law enforcement, with an exception for politicians and businessmen.
3. Applicants must be of a minimum age of 21 years to obtain a firearms license and go through a very thorough background check and mental evaluation.
4. They must also state a bona fide reason for wanting to own a firearm, which would include hunting, target shooting, collecting security and self-defense.
5. All firearms must be registered.
6. Gun permits are valid for five years and may be renewed.
7. Civilians cannot possess military weapons but may possess long rifles.
8. Handguns can be used only for sport shooting and hunting.
1. A firearm license in Thailand is granted only for self-defense, property protection, hunting or sporting use.
2. Applicants for a firearms license must be at least 20 years of age, have a record of good behavior, have an occupation and receive income and have a permanent address in Thailand with a name “listed in the house registration specifically in the area where the applicants are applying for a license for at least six months.
3. A license may not be issued to anyone who is a repeat offender or mentally unstable.
4. Since October 2017 citizenship is required to purchase and use firearms.
5. Fully automatic firearms and explosive devices are prohibited.
1. Guns in India are strictly regulated by law.
2. The Arms Act, 1959 and the Arm Rules 1962 prohibit the sale, manufacture, possession, acquisition, import, export and transport of firearms and ammunition unless under a license which is difficult to obtain.
3. Licenses are valid for three years and may be renewed.
4. The Arms Act classifies firearms into two categories: Prohibited Bore (PB) and Non-Prohibited Bore (NPB) where all semi-automatic and fully automatic firearms fall under the Prohibited Bore category.
5. The Indian Government has a monopoly over the production and sale of firearms with the exception of some breech-loading smooth-bore shotguns of which a limited number may be produced and imported.
6. The criteria considered during the issue of NPB firearm permits are whether the applicant faces a threat to their life. PB firearms criteria are more stringent and are often for persons in government positions who face immediate danger or threats and for those whose occupation involves open threats and dangers and family members of such people.
All said and done, all nations must make stricter laws for not just buying a gun but also for keeping them. Also, those who have guns must be made to undergo compulsory thorough scrutiny and police verification. They must be made to go through medical tests and also under no circumstances should any person have more gun than one. Those who are repeat offenders should not be allowed to keep guns. Ammunition also must not be unlimited. Police must check this on a regular basis. Those who are found violating the rules must be made to pay a heavy penalty and also sentenced to jail for at least five years! All this will certainly go a long way in ensuring that the dastardly killing of innocents by those who have weapons are checked to a large extent! There must be mandatory, proper and strict checking of all vehicles and all persons at all religious places at various points so that innocent devotees are never again killed in the dastardly, ghastly and cowardly manner in which we recently saw in two mosques in Christchurch in New Zealand which shook the whole world! Above all, gun laws must be made stricter and those who have guns must be thoroughly made to undergo a suitable test and proper police verification and held duly accountable! Those who are either mentally unstable or have a past criminal record must not be allowed to keep gun!
Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act 1986 a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.
Parliament, with its supposed omniscience in law, may, in its professed omnipotence enact legislation to undo and set at naught the effect of any judicial decision of the Supreme Court or any other Court, however good and conducive to the welfare of the people that decision may be. But to borrow from Shakespeare, while it may be good to have giant’s power, it may not at all be good to use the same as a giant.
It is now well-settled, since the celebrated decision of the Supreme Court in Olga Tellis,“ that right to life and personal liberty guaranteed under Art. 21 of the Constitution includes the right to livelihood. Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.
It is also equally well-settled, since the decisions of the Supreme Court in Maneka Gandhi and in Olga Tellis, that no one, obviously including a Muslim divorced woman, can be deprived of the right to life or livelihood except by the procedure established by law, which must be reasonable, right, just and fair.
Would the provisions of the Muslim Women (Protection of Rights on Divorce) Act of 1986, which apparently seeks to deprive a divorced Muslim woman of such right to maintenance from her former husband, and providing for maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run after her own relatives one after the other and then ultimately to knock at the door of the Wakf Board, at all appear to be reasonable and to be a fair substitute for the provisions of Chapter IX of the Code of Criminal Procedure? To put it in other words, whether deprivation of the Muslim divorced woman of her right to maintenance under the beneficial provisions of Chapter IX of the Code of Criminal Procedure, which is otherwise available to all other women in India, has been affected by a reasonable, right, just and a fair piece of law as enacted in the Muslim Women (Protection of Rights on Divorce) Act of 1986?
And if these provisions are much less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a Muslim divorced woman has obviously been unreasonably discriminated and driven out from the protection of the benign provisions of the general law as enacted in Chapter IX of the Code of Criminal Procedure, which are available to a Hindu, Buddhist, ]ain, Parsee or Christian woman or a woman belonging to any other community.
Now except for the protection afforded by Art. 25(1) the provisions are patently violative of Art. 14 of the Constitution mandating equality
before and equal protection of laws to all persons otherwise similarly circumstanced, and also violative of Art. 15(1) of the Constitution which forbids any discrimination on the ground of religion, as the Muslim Women (Protection of Rights on Divorce) Act of 1986 would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. This criticism has been accepted (almost verbatim) by the Supreme Court in Danial Latifi v Union of India.
Danial Latifi v Union of India
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged in Danial Latifi.
A Constitutional Bench of five judges speaking through Rajendra Babu, ] noted that the purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat, and thereby to reverse the decision in Shah Bano, but ironically the enactment actually codifies the very rationale contained in Danial Latiﬁ.
At the outset, the court noted that the Act in terms does not apply to a Muslim woman whose marriage is solemnized either under the Special Marriage Act 1954 or a Muslim woman whose marriage was dissolved either under the Divorce Act 1869 or the Special Marriage Act 1954 nor to the deserted and separated Muslim wives.
It was also made clear that to find out the personal law of Muslims with regard to divorced women’s rights, the starting point should be Shall Bano case and not the original texts or any other material all the more so when varying versions as to the authenticity of the source are shown to exist.
The court held that if the provisions of the 1986 Act were read as less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law which are available to Hindu, Buddhist, ]ain, Parsi or Christian women or women belonging to any other community. The provisions would then be violative of Art. 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Art. 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion”.2° To avoid this result the court interpreted the Act by reading its provisions in a manner which would make it compatible with constitutional principles.
Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986 were the principal sections, under attack before the court. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled inter cilia to a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband”. Section 4 provides that as long as the divorced woman has not remarried and is unable to maintain herself after the iddat period the Magistrate may order such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and lair maintenance to her; if they do not have the means then other relatives who do have the means and failing them the State Wakf Board.
The constitutional validity of these two sections was upheld through a process of ingenious interpretation. The court found ﬁrst that the wordings of s. 3 of the Act indicated that the husband has two separate and distinct obligations:
(1) to make a “reasonable and fair provision” for his divorced wife; and (2) to provide “maintenance” for her?‘ Second, it was held that the word “provision” in s. 3(1)(a) of the Act incorporates “mate” as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period. Third it found that the emphasis of s. 4 is not on the nature or duration of any such “provision” or “maintenance”, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, “within the iddat period”.
Fourth, “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it”.
It would, therefore ”extend to the whole life of the divorced wife unless she gets married for a second time”.3 Fifth, the court held “Section 4 of the Act refers only to payment of ‘maintenance’ and does not touch upon the ’provision’ to be made by the husband referred to in s. 3(1)(a) of the Act.”4 Consequently the right to have a fair and reasonable provision in her favour is a right enforceable against the woman’s former husband in addition to what he is obliged to pay as “maintenance” and so “there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman”. Finally, it was held “what could be earlier granted by a Magistrate under 5. 125, CrPC would now be granted under the very Act itself This being the position, the Act cannot be held to be unconstitutional”.
Unfortunately, the court ignored the provisions of Art. 25 and its impact on personal laws for arriving at the same conclusion. It is arguable that the State is limited by Art. 25(2) to enact legislation to amend personal laws only for “social welfare and reform”. Further, the legislation so enacted must be in compliance with fundamental rights.
Gajendragadkar, J. in Narasu Appa Mali, had said that the State Legislature can take gradual steps for social welfare and reform but cannot introduce distinctions or classifications which are unreasonable, irrational or oppressive. Since the 1986 Act is certainly neither a measure for “social welfare and reform” under Art. 25(1) nor a measure in compliance with the principle so enunciated, it is unconstitutional.
The decision although it reaffirmed Shah Bano, strangely did not cause any protest and is now the accepted as the authority for the proposition that the powers and jurisdiction of a Magistrate under the 1986 Act are co-extensive with the those under s. 125 of the Code of Criminal
The procedure as far as a Muslim divorced woman’s right to
maintenance is concerned.
Even prior to Danial Latifi’s case the Supreme Court had already tempered the impact of s. 4 which provides for the right of a divorced woman to claim maintenance sequentially against various relatives and ultimately against the State Wakf Board, by directing that “she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, maintaining her and directing her claim against the State Wakf Board in
the first instance” .
At present, as a result of the decision in Danial Latifi, according to some High Courts9, the Muslim divorced wife has higher rights than her counterparts in other religions.
Like other divorced wives under Section 125, CrPC, she can get monthly maintenance under s. 3 of the Act provided she is unable to maintain herself. Even when she is able to maintain herself and is even a millionairess, she can get the capitalized payment of amounts under s. 3 of the Act which other divorced wives cannot. Again while the remarriage puts an end to the claim of other divorced wives, the Muslim divorced wife on re-marriage can keep the capitalized amount with herself with no liability to return the same. Thus viewed from any angle, the Muslim divorced wife under her personal
law (i.e. the Act) has larger and superior rights than what her counterparts of other religions have under s. 125 of the Code”.
The Act, however, does not in any way affect the rights of the Muslim children to claim maintenance from the father and the provisions of Chapter IX of the Code of Criminal Procedure can obviously be invoked by or on behalf of such children. Section 3(1)(b) of the Act, no doubt, provides that a divorced women shall be entitled to, where she herself maintains the children born to her before or after divorce a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children. But as has been held,“ and rightly too, the right under s. 3(])(b) is a right of the divorced woman herself and is incidental to the divorce and the said provisions can in no way affect the operation of the provisions of Chapter IX providing maintenance for minor children.
Massage therapists are just like any other professional with the ability to commit crimes and engage in sexual misconduct that can lead to possible criminal charges against the individual. Depending on the extent, the evidence that exists and how the person committed the sexual misconduct, charges are either extensive or minor with only heavy fines for a conviction.
What Is Sexual Misconduct with Message Therapy?
Clients that seek or need massage therapy are normally naked or only wearing a thin covering to keep private areas of the body concealed. Many that receive this service can feel uncomfortable and uneasy because of this exposure of the body and another person’s hands on the naked skin. Certain behaviors and actions taken by the massage therapist are sexual misconduct as classified by the state where these crimes occur. This can happen through a sensual or sexual type of touching. Others experience sexual misconduct when the massage therapist is or remains too close to private areas of the body for longer than necessary.
The Effects of Sexual Misconduct
The client that needs a massage to help alleviate stress, pain and other discomfort with the body because of muscle or joint problems may have a negative experience with the massage therapist. If the professional does exhibit signs of sexual misconduct, the client may leave with more stress, feeling dirty or with a sense that the massage therapist took advantage of him or her. This can also cause harmful emotional trauma or psychological pain for others. These effects are often short-term, but if combined with past trauma, there are lasting effects that can lead to further pain and suffering.
Types of Sexual Misconduct with Massage Therapy Sessions
Sexual impropriety, transgressions, violations and overt sexual advances are all possible with a massage therapist. The impropriety happens through inappropriate words, crude behavior and even demeaning comments to the client. The transgression occurs through inappropriate touch and physical contact that may not have any overt sexual advances or actions attached. The violation is an overt physical sexual activity such as sexual abuse or when inappropriate touching progresses further. Any or all three of these may occur with or without any overt sexual advances that could lead even further or that may fall flat which could lead to a lawsuit against the professional or the facility.
Penalties for Sexual Misconduct in Massage Therapy
Penalties are only possible when the prosecuting lawyer is able to successfully prove a criminal activity occurred such as any of the three sexual misconduct actions against the client who becomes a victim. This requires evidence and witness testimony such as the statement or testimony given in court with the affected person. The standard penalties involve severe fines and possible jail time with the massage therapist. However, additional fines could extend to the facility or later lead to a civil suit against the organization and the professional depending on the victim.
Defenses for Sexual Misconduct by a Message Therapist
When a professional working for a facility or independently faces charges for criminal sexual misconduct, he or she will need to contact a lawyer to build a defense. Not only could the charges place him or her behind bars, but this action could also lead to a revocation of the professional license acquired for the state. Certification into the program provides this professional with the ability to practice massage therapy with any person seeking the service and that either signs a waiver or signs documentation for this service. Hiring a lawyer and explaining that no sexual misconduct occurred is important to building the appropriate and aggressive defense to combat such charges.
Evidence of the actual sessions can support the defense against sexual misconduct with the massage therapist. The professional or the facility may take the sessions to either help the clients better in the future with certain difficult spots or to protect the integrity of these relationships by rooting out anyone that acts inappropriately. If the client is accusing the massage therapist with unfounded allegations, these taped sessions can counter any claims effectively. However, the massage therapist usually still needs a criminal defense lawyer to appropriately argue the case and present the evidence.
The Criminal Defense for the Message Therapist
The professional will need to prove that no sexual misconduct in word or deed occurred during the sessions. This is more difficult if there is little evidence to support the defense. However, without any corroborating evidence, the prosecution may also lack the necessary proof for a conviction if the matter solely rests on the words of the client.